323 Mass. 357 | Mass. | 1948
These two cases come before us on the respondent’s appeal from the decree entered by the judge in the first case adjudging that the respondent had deserted the petitioner and that he was living apart from her for justifiable cause (see G. L. [Ter. Ed.] c. 209, § 36), and on her appeal from the decree entered by the judge in the second case granting custody of John Heard, Junior, the
The First Case.
Material facts found by the judge in this case may be summed up as follows: The parties were married at Cambridge on June 26, 1939. The minor child was born to them on August 17, 1941. Until July 7, 1945, they lived together in the same house in Cambridge. The daughter of the respondent by a previous marriage, Ursula Marshall, generally known as Ursula Heard, lived with them as did their minor child. The title to the house in which they lived was held by the respondent as trustee under her mother’s will, and the taxes thereon and capital expenditures in connection therewith were paid out of the trust estate. All other expenses of maintenance of the household were paid by the petitioner. The petitioner treated the respondent at all times kindly and provided adequate support for her. On July 7, 1945, no cause existed which would justify the respondent in leaving the petitioner. Prior to that date the respondent announced to the petitioner that she was going to Canada for a vacation which would last from six to eight weeks. The petitioner bought transportation for her and gave her $850 for the expenses of the vacation. He saw her off at the train at Boston on the evening of July 7 and bade her good-bye affectionately. The next morning he sent the child and Ursula to join the respondent in Canada. In fact, the respondent intended to go to Canada for but a short time, and then to go to Reno in the State of Nevada and procure a divorce. The representation that she was going to Canada for a vacation was false and was intended to deceive the petitioner. “Shortly prior to July 7, 1945,
In the light of the decree entered by the judge, we interpret his finding, that “the respondent did not in good faith acquire any domicil in Nevada and that her domicil and that of . . . [the] minor child . . . was at the time of the commencement of these proceedings and still is in Cambridge,” to mean that the judge impliedly found that the judgment or decree of divorce procured by the respondent in Nevada was null and void. Whether it is so null and void is the decisive question, since, if it is valid, the parties would not have been husband and wife when the judge heard the petition and entered the decree appealed from, as required by the statute under which the petition was brought, G. L. (Ter. Ed.) c. 209, § 36,
Before proceeding to the determination of the decisive issue as to the jurisdiction of the Nevada court to entertain and adjudicate the divorce action involved, it is appropriate to consider whether it is open to the petitioner to attack the validity of the judgment entered therein. We are of opinion that, since he did not appear or participate in the divorce proceedings in any way, he is not estopped from attacking its validity. Williams v. North Carolina, 317 U. S. 287; S. C. 325 U. S. 226. Estin v. Estin, 334 U. S. 541. In this respect the case is distinguishable from the Coe
In support of his contention that the Nevada court did not have jurisdiction to entertain the action and to enter the, judgment or decree of divorce in question, and that the judgment or decree is null and void, the petitioner relies largely upon the provisions of G. L. (Ter. Ed.) c. 208, § 39, and upon Andrews v. Andrews, 176 Mass. 92, 96, affirmed 188 U. S. 14, and other cases in which the Andrews case has been followed by this court. Chapter 208, § 39, provides as follows: “A divorce decreed in another jurisdiction according to the laws thereof by a court having jurisdiction of the
The United States Constitution, art. 4, § 1, provides, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” The act of May 26, 1790, 1 U. S. Sts. at Large, 122, as amended, U. S. Rev. Sts. § 905, U. S. C. (1940 ed.) Title 28, § 687, provides in part," . . . And the said records and judicial proceedings . . . shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.” See Coe v. Coe, 334 U. S. 378.
District Courts in Nevada have power to decree divorces in appropriate cases under Nev. Comp. Laws, 1929, § 9460, as amended. In the State of Nevada its courts recognize domicil of one of the parties as a prerequisite to divorce jurisdiction. Latterner v. Latterner, 51 Nev. 285, 290. See Coe v. Coe, 334 U. S. 378; Williams v. North Carolina, 317 U. S. 287; Bowditch v. Bowditch, 314 Mass. 410, 415. Interpreting the decision of the court in Williams v. North Carolina, 317 U. S. 287, this court in Bowditch v. Bowditch, 314 Mass. 410, 415, said in part that a domicil by one of the parties in the State in which the divorce was granted is essential to jurisdiction. There “is usually deemed to be an underlying requirement, implied either from the language of the statute or from the inherent nature of the proceedings, that at least one of the parties be actually 'domiciled' within the state, whether or not they were married under its laws.” Nelson on Divorce and Annulment (2d ed.) § 21.12. Andrews v. Andrews, 188 U. S. 14. Foss v. Foss, 105 Conn. 502.
The question remains whether the contention made by the petitioner that the present case is governed by the provision
In Andrews v. Andrews, 188 U. S. 14, affirming Andrews v. Andrews, 176 Mass. 92, it was held that this Commonwealth contravened no Federal right in enacting § 41 of c. 146 of its Public Statutes which was the same in terms as G. L. (Ter. Ed.) c. 208, § 39, relied on by the petitioner. The Andrews case is fully discussed in Sherrer v. Sherrer, 334 U. S. 343, reversing Sherrer v. Sherrer, 320 Mass. 351, the court saying that- it presented variations from the situation in the Sherrer case, but that “insofar as the rule of that case may be said to be inconsistent with judgment herein announced, it must be regarded as having been superseded by subsequent decisions of this Court. The Andrews case was decided prior to the considerable modern development of the law with respect to finality of jurisdictional findings. One of the decisions upon which the majority of the Court in that case placed primary reliance, Wisconsin v. Pelican Insurance Co., 127 U. S. 265 (1888), was, insofar as pertinent, overruled in Milwaukee County v. White Co., 296 U. S. 268 (1935). The Andrews case, therefore, may not be regarded as determinative of the issues before us” (page 353). The court also said in part that “the recognition of the importance of a State’s power to determine the incidents of basic social relationships into which its domiciliaries enter does not resolve the issues of this case. This is not a situation in which a State has merely sought to exert such power over a domiciliary. This is, rather, a case involving inconsistent assertions of power by courts of two States of the Federal Union and thus presents considerations which go beyond the interests of. local policy, however vital..... The full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a
It thus appears that in the cases just referred to the court was of opinion that the Andrews case presented variations from the Sherrer and Coe cases, and held that the Andrews case must- be considered to be superseded by subsequent decisions of the court in so far as that case may be said to be inconsistent with the judgments therein announced. We interpret that to mean that that is so only to the extent that in the Andrews case attack was permitted on the jurisdiction of the court of another State to decree the divorce in question by the defendant in that proceeding who, as in the Sherrer and Coe cases, had appeared and participated therein and had had full opportunity to be heard. That this may not be done constitutionally is the basis of the decisions of the Supreme Court of the United States in the Sherrer and Coe cases. And in the Sherrer
In the present case the decree attacked by the petitioner was entered in ex parte proceedings and, as we have already said, accordingly the petitioner is not estopped to attack its validity. On the evidence, however, we have found, as already stated, that the respondent had acquired a bona fide domicil in Reno at the time that she brought her action, that it existed at the time of entry of judgment in the Nevada court after service of due process on the petitioner here, see Williams v. North Carolina, 317 U. S. 287; S. C. 325 U. S. 226, and that the judgment of the Nevada court is valid and final in the State of Nevada. That having been resolved, we are of opinion that the provisions of G. L. (Ter. Ed.) c. 208, § 39, cannot avail the petitioner. Jurisdiction being found by us to have existed in the Nevada court to enter the judgment here under attack, that judgment cannot be pronounced null and void by us simply because the cause for which the divorce was granted was one which occurred in this Commonwealth. Having jurisdiction of the action for divorce, the Nevada court was free to exercise its jurisdiction for any of the causes defined in Compiled Laws of Nevada, 1929, § 9460, as amended, unrestricted by the provisions of G. L. (Ter. Ed.) c. 208, § 39. Accordingly the judgment or decree in question of the Nevada court is conclusive here and must be accorded full faith and credit under art. 4, § 1, of the Federal Constitution.
The decree entered in the Probate Court is reversed and instead a final decree is to be entered dismissing the petition.
So ordered.
The Second Case.
This second case is a petition for custody of John Heard, Junior, the minor child of the parties. The child was born to the parties on August 17, 1941, while they were living
The evidence is reported, and the judge made a consolidated report of the material facts found by him in the first and in this case. We incorporate herein by reference the particular facts set out in our opinion in the first case as having been found by the judge and also those there recited as having been found by us. The contentions of the respondent are, first, that the decree or judgment of the Nevada court in which she was awarded custody of the child must be given full faith and credit under the Federal Constitution and, second, that the evidence does not support the decree entered by the judge awarding custody of the child to the petitioner.
We proceed to the consideration of the respondent’s first contention. At the outset, by reason of our opinion in the first case, it must be taken as settled that the Nevada court had jurisdiction not only of the action for divorce in question, but also in connection therewith of the custody of the child, who was resident within the borders of the State of Nevada when the action for divorce was filed and judgment was entered therein. He was not in this Commonwealth when the present petition was brought, or when it was heard, or when decree was entered by the judge thereon. So far as appears, he has not returned to this Commonwealth since he was taken by his mother to Nevada, who likewise was not physically in the Commonwealth at those times, or so far as appears since she went to Nevada. The question therefore arises whether the Probate Court was bound by the judgment of the Nevada court.
The present petition was filed in the Probate Court on September 18, 1945. At that time the parties were husband and wife. The petition was apparently brought under the provisions of G. L. (Ter. Ed.) c. 209, § 37, which provides as follows: “If the parents of minor children live apart from each other, not being divorced, the probate court for the county in which said minors or any of them
Mr. Justice Jackson concurred in the result reached in the opinion of the court in the Halvey case “on the ground that the record before . . . [the court] does not show jurisdiction in the Florida Court.” It is a fair inference that Mr. Justice Jackson had in mind that, when the decree was entered in the Florida court, the child was not within the borders of the State of Florida. Mr. Justice Frankfurter and Mr. Justice Rutledge delivered concurring opinions, taking in substance the position that the jurisdiction of the Florida court in making the custodial decree was doubtful, but that, apart from what the Florida court had previously done, New York, which had actual control of the child, was justified in exercising its powers in behalf of the child; and that the duty to respect the Florida judgment arose only if there was legal power in the Florida court to enter the custodial decree, and if in the Florida courts themselves
As we interpret the opinions in the Halvey case, it would seem that the gist of the decision is that the New York court had jurisdiction of the parties and of the child, that since the decree of the Florida court was subject to modification by that court the New York court could also enter the decree under consideration, and that its entry was not violative of the full faith and credit clause of the Federal Constitution.
In the present case the respondent, though she did not appear in person at the hearing of the present petition, did appear generally by counsel and thus submitted to the jurisdiction of the court below. The Probate Court had jurisdiction of the parties, and of the subject by virtue of the inhabitancy of the child in this Commonwealth. G. L. (Ter. Ed.) c. 208, § 29. As in the Halvey case the petitioner here did not appear in the action of his wife in the Nevada court, and that court “did not see . . . [him] nor hear evidence presented on his behalf concerning his fitness or his claim ‘to enjoy the society and association’ of . . . [the child].” New York v. Halvey, 330 U. S. 610, 613-614. Under the laws of Nevada the decree in question was not irrevocable but was subject, as are such decrees in most jurisdictions, to be modified for good cause. Nev. Comp. Laws, 1929, § 9462. Silva v. Second Judicial District Court, .57 Nev. 468. Abell v. Second Judicial District Court, 58 Nev. 89. Fleming v. Fleming, 58 Nev. 179. Nevada v. First Judicial District Court, 61 Nev. 269, 275-276. What the Nevada court could do the court below could do. See G. L. (Ter. Ed.) c. 208, §§ 28, 29. By virtue of the fact that the child here concerned is an inhabitant of this Commonwealth, that is, has his legal domicil here, that of his father, we conclude that as strict matter of law, notwithstanding that the child was not within our borders when the present proceeding was begun and determined in the Probate Court, that court had jurisdiction thereof. We are. thus brought to a consideration of the present petition on the merits.
In addition to the facts set forth in our opinion in the first
Examining the evidence in accordance with our duty under the familiar rule, we are of opinion that the findings of the judge that the respondent is not a suitable person to have the custody of the child and that his welfare requires that the petitioner be given his exclusive custody are plainly wrong. The evidence discloses that the child is now but seven years of age, that he has always been cared for by his mother, and that she is devoted to him. The petitioner testified that, up to the time when the respondent separated from him, she had been an excellent mother. All of the witnesses who were familiar with the family life of the parties expressed the opinion that the respondent was a devoted mother and a suitable person to have the custody of the child. The evidence does support the finding of the judge that on one occasion the respondent attempted to commit suicide. The evidence discloses that in August, 1940, a little short of six years before the hearing of the present petition in the court below and a year before the child was born, the respondent took an overdose of veronal tablets with the intent to commit suicide, that she was taken to a hospital, and that during the course of her recovery she expressed regret at her action. The doctor who attended her on that occasion knew the parties socially and professionally. He had also attended the respondent on previous and subsequent occasions. He testified that prior to the incident just referred to the respondent had had an attack of rheumatic fever, that she had had attacks before, that she was “emotionally strung,” that she had consulted several doctors, that she was apprehensive, but that this condition grew less after the child was born. This witness also testified that he had treated the respondent from time
In his report of material facts the judge has stressed the improper conduct of the respondent in secretly removing the child to Nevada without the consent of the petitioner. But this conduct on her part cannot be permitted to interfere with the welfare of the child, the paramount and governing consideration. As was said by this court in Hersey v. Hersey, 271 Mass. 545, where the child, whose custody had been awarded in divorce proceedings here to her mother, had been removed by her from the Commonwealth without the consent of the child’s father or of the court (G. L. c. 208, § 30), "This is not a proceeding to discipline the respondent for her shortcomings. It is not a proceeding to reward the petitioner for any wrong which he may have suffered.... The governing principle by which the court must be guided in deciding the issues raised is the welfare of the child. That is so both as matter of law and as matter of humanity” (page 555). Concerning the finding of the judge that the respondent in recent years has "acquired an unusual and-morbid interest in matters pertaining to sex,” there is no evidence of any immoral conduct on her part, and it cannot quite be said that the entire evidence discloses that any interest displayed by the respondent in matters pertaining to sex was abnormal. We have considered all of the arguments advanced by the petitioner in support of his contention that the respondent is not a suitable person to have the custody of the child. On all the evidence we do not so find.
The evidence discloses that in the custody of the respond
On all the evidence we are of opinion that the proper conclusion is that the respondent is a suitable person to have the custody of the child and that his welfare requires that he remain in her custody. Accordingly the decree entered by the judge is reversed and instead a final decree is to be entered that the child remain in the custody of the respondent, without prejudice to the right of the petitioner to petition at any time in the future for a decree fixing reasonable times at which he may see the child or have him with him, upon such conditions as the court may deem proper, and without prejudice to the right of the respondent to petition that an allowance be made for the support of the child to be paid by the petitioner.
So ordered.
Before these cases were argued, the cases of Coe v. Coe, 320 Mass. 295, and Sherrer v. Sherrer, 320 Mass. 351, were decided by this court. Certiorari, however, was granted in those cases and they were argued before the Supreme Court of the United States at the October term, 1947, -and were reversed by that court on June 7, 1948. On June 29, 1948, the parties in the present cases were granted permission to file supplemental briefs. The petitioner’s counsel accordingly filed a supplemental brief, but the respondent’s counsel did not.
Chapter 209, § 36, so far as here pertinent, provides as follows: “A probate court may upon petition of a husband or, if he is insane, of his guardian or next friend, enter a decree that said husband has been deserted by his wife or that he is living apart from her for justifiable cause . . ..”
Coe v. Coe, 334 U. S. 378, reversing Coe v. Coe, 320 Mass. 295.
Sherrer v. Sherrer, 334 U. S. 343, reversing Sherrer v. Sherrer, 320 Mass. 351.
Section 9460 of the Nevada Compiled Laws, 1929, as amended by St. 1931, c. 97, § 1, provides as follows: “Divorce from the bonds of matrimony may be obtained by complaint, under oath, to the district court of any county in which the cause therefor shall have accrued, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, or in which the parties last cohabited, or if plaintiff shall have resided six weeks in the state before suit be brought, for the following causes, or any other causes provided by law.” Among the causes set forth in that statute is “Extreme cruelty in either party.”
The question of the jurisdiction of the Probate Court to entertain the petition for custody of the child will be more fully considered in connection with that petition (the second case presently before us).
When the Glass case was decided the statute, G. L. c. 208, § 29, referred only to minor children who were “inhabitants” of the Commonwealth. Thereafter by St. 1931, c. 327, § 1, G. L. c. 208, § 29, was amended by striking out that section and inserting a new section in the form set out above which includes minor children who are residents as well as those who are inhabitants of the Commonwealth.
The Halvey case was decided after the decree in the present case had been entered by the judge of probate.