Home DOMENIC J. SARACENO vs. NANCY BELL SARACENO.

369 Mass. 967

January 29, 1976

The libelee husband appeals from decrees which (a) dismissed his petition that support orders for the wife be terminated and (b) modified an earlier support order by increasing the amount of the allowance for the wife's support and by granting counsel fees and expenses. There was ample evidence to justify the judge's finding that a material change in circumstances warranted an upward modification of the support order previously entered in favor of the wife. See Sloane v. Sloane, 349 Mass. 318 , 320 (1965). The husband's assertion that G. L. c. 208, Section 34, is unconstitutional as discriminatory against husbands is wholly without merit. At the time of the decree in this case, G. L. c. 208, Section 34, had been amended by St. 1974, c. 565, to eliminate any possible discrimination in alimony between husbands and wives. For Section 34 as now amended, see St. 1975, c. 400, Section 33. Moreover, the husband had no standing to object to Section 34 as it appeared prior to St. 1974, c. 565, because he was not seeking alimony. Similarly, it is doubtful that the husband has standing to object to the provisions of G. L. c. 208, Section 37, concerning revision of alimony allowances to a wife. If he does have such standing, equal treatment in allowing revision of alimony as to either spouse is the appropriate result, not the disallowance of revisions to both. See House v. House, 368 Mass. 120 , 123 (1975). For Section 37 as now amended, see St. 1975, c. 400, Section 38. The decision to allow counsel fees and expenses to the wife was in the discretion of the judge. The wife's counsel fees and expenses to the wife was in the discretion of the judge. The wife's counsel fees and expenses in connection with this appeal may be allowed in the discretion of the Probate Court.

Decrees affirmed.

Home MARY F. HIGBEE vs. AMBASSADOR TAXI, INC.

369 Mass. 967

February 2, 1976

This is an appeal from the denial of the defendant's motion for relief from judgment. The appeal arises out of a tort action for personal injuries sustained by the plaintiff while she was a passenger in a bus which was involved in a collision with a taxicab owned by the defendant. No answer

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was filed for the defendant; a default was entered on December 29, 1970; and damages were assessed on December 27, 1973, in the amount of $4,200. The defendant moved for relief from judgment on the ground that the plaintiff failed to comply with the requirements of G. L. c. 231, Section 58A, which reads in relevant part: "Damages shall not be assessed, except by special order of the court, in an action of tort, the payment of the judgment wherein is secured by a motor vehicle liability policy or a motor vehicle liability bond . . . and wherein the defendant has been defaulted for failure to enter an appearance, until the expiration of four days after the plaintiff has given notice of such default to the company issuing or executing such policy or bond, and has filed an affidavit thereof." The statute by its terms applies to the present case. No affidavit concerning notice of default was filed by the plaintiff prior to the assessment of damages, and the insurer denies any record of receipt of such a notice. Nor does there appear from the record that there was ever entered a "special order of the court" concerning the assessment of damages, the only exception contained in the otherwise mandatory language of the statute. The plaintiff having failed to give the required statutory notice and to file an affidavit thereof, it follows that the assessment of damages on December 27, 1973, was improper. The motion for relief from judgment should have been granted in part, limited to the question of damages. It follows that the assessment of damages must be vacated and the case remanded for further proceedings consistent with this opinion.

So ordered.