Southworth v. Treadwell , 1897 Mass. LEXIS 281 ( 1897 )

Barker, J.

The court was right in declining to rule as requested by the respondent, and in the ruling given at the request of the petitioner. The stipulation for alimony to be decreed in the suit for divorce added nothing to the force of the decree, and did not affect the power of the court to change the rights of the parties by further orders or decrees respecting alimony. Pub. Sts. c. 146, § 39. Upon the petition the court had power to revise and modify the decree, as it deemed reasonable upon all the circumstances of the case. Graves v. Graves, 108 Mass. 314, 321. Foster v. Foster, 130 Mass. 189, 191.

Whether the respondent’s remarriage had in fact so changed her financial condition that she did not need the provision made for her by the original decree, was a matter upon which either party could offer evidence. It was not alleged as a ground of the petition that her financial situation had been so changed, and the answer alleged that it was not materially different. The omission of the petitioner to introduce evidence to disprove an allegation-made by the answer did not deprive him of the right to ask for a revision of the former decree upon such facts as appeared at the hearing. The remarriage was admitted, and although the respondent and her husband were in court, she introduced no evidence. The remarriage was a material change in the circumstances of the respondent, giving her the right to be supported by another man. In the absence of proof that this right was not adequate to all her needs, the court might well deem it sufficient cause for revising the former decree, and for reducing the alimony to a nominal sum, and was right in ruling that prima facie it was such cause.

Decree affirmed.