Blackinton v. Blackinton
5 N.E. 830
Mass.
1886
Check Treatment
Holmes, J.

If the petitioner were proceeding for a divorce, there is no doubt that the court would possess and exercise jurisdiction, notwithstanding the husband’s change of domicil.

Pub. Sts. c. 146, §§ 1, 5. Harteau v. Harteau, 14 Pick. 181, 185. Brett v. Brett, 5 Met. 233, 235. Shaw v. Shaw, 98 Mass. 158. Cheever v. Wilson, 9 Wall. 108, 124. See Niboyet v. Niboyet, 4 P. D. 1. The present proceeding contemplates a continuance of the marriage status, instead of its dissolution. But the ground on which it proceeds is a breach of the duties incident to that sta'tus, — in this case desertion, that is, a separation of home and interests, — without the petitioner’s fault; and the same considerations which are stated in Harteau v. Harteau, ubi supra, for declining to treat the domicil of the wife as following that of the husband when she seeks a divorce, equally apply when she seeks protection and separate maintenance under the Pub. Sts. c. 147, § 33. The statute is general in its terms, and we know of no principle which would warrant our confining its operation to cases where the deserting husband retains his domicil within the State.

Assuming that the Probate Court has jurisdiction of the subject matter in such a case, we are of opinion that its right to proceed is not confined to cases where personal service can be made upon the respondent within the State. The jurisdiction in divorce is not confined to such cases. Burlen v. Shannon, 115 Mass. 438. And whatever may be thought of decisions like People v. Baker, 76 N. Y. 78, and Doughty v. Doughty, 1 Stew. (N. J.) Eq. 581, we do not understand any one to deny that divorces granted against absent defendants, after such notice as the laws of the State prescribe, are valid within the limits of the State granting them.

In like manner, so far as the petitioner seeks a decree protecting her person, and giving her the custody of her child now *436living in this Commonwealth, we have no doubt that the statute confers power upon the Probate Court to make it. The ques-. tian whether it also confers power to order the payment of money for maintenance is more difficult, but, in the opinion of a majority of the court, must be answered in the same way. It has been intimated that authority to decree a divorce against a defendant domiciled elsewhere, and not appearing, does not carry with it authority to decree alimony. Beard v. Beard, 21 Ind. 321. But the statute under which the petitioner proceeds recognizes no such distinction. It does not contemplate a jurisdiction for one of its purposes and a want of jurisdiction for another, and we see no reason why it should be limited beyond its words.

The whole proceeding is for the regulation of a status. The incidents of that status are various, -— some concerning the person, some concerning the Support, of the petitioner or her child. The order to pay money is not founded on an isolated obligation, as in a case of contract or tort, but upon a duty which is one of those incidents. The status, considered as a whole, is subject to regulation here, although it involves relations with another not here, because such regulation is necessary rightly to order the daily life, and to secure the comfort and support, of the party rightfully living within the jurisdiction. It is quite true that these considerations may not suffice to give the decree extraterritorial forcé, and that, in general, courts do not willingly pass decrees, unless they think that other courts at least ought to respect them. But that is not the final test. We think that the statute Was intended to authorize such decrees as that appealed from, and tacitly to adopt the rules as to service expressly laid down for divorce. Pub. Sts. c. 146, § 9. We do not see any sufficient ground for denying the power of the legislature to pass the act. We are therefore of opinion that the decree was within the power of the court, and can be carried out against the defendant’s property within the jurisdiction, ánd against his person if he be found here.

Decree affirmed.