271 Mass. 545 | Mass. | 1930
This is a petition for modification of a decree for divorce so far as it relates to the custody of a minor child of the parties. One question is whether the Probate. Court has jurisdiction. The relevant facts in that connection are these: On March 13, 1925, a divorce nisi was granted by the Probate Court for our county of Suffolk, which had jurisdiction of all the parties, the libellant being then a resident of Boston in this Commonwealth, to the wife, the respondent in the case at bar and hereafter so designated, against the husband, the present petitioner and hereafter so designated, for the causes (1) of cruel and abusive treatment, and (2) of gross, wanton and cruel refusal and neglect to provide suitable maintenance for the wife. It was ordered by the decree then entered that the petitioner pay $30 per month to the respondent for the support of their minor child, Joan Hersey, and that the custody of the child be given to the respondent, the petitioner “to be permitted to visit said child for reasonable periods monthly if he so desires provided that he shall not be at the time of said visit in default of any of the payments” for her support required by the decree. The decree nisi became absolute in September, 1925. The present petition for modification was filed on June 11, 1928. It alleges full performance by the petitioner of all the requirements of said decree resting upon him, but that the respondent has refused to permit him to visit the child as therein required; that the respondent was married in 1925 or 1926 to Bobert Crawford, with whom she has since lived and is now living in Portland in the State of Maine; that the child is enrolled in school under the name Joan Crawford and that the respondent
The parties have stipulated that on the present petition a general appearance was filed by the respondent on June 22, 1928, but was subsequently withdrawn. The respondent now is domiciled in the State of Maine. The effect of this appearance was to waive any defect of service or of jurisdiction over the person of the respondent. Paige v. Sinclair, 237 Mass. 482. Robertson v. Railroad Labor Board, 268 U. S. 619, 622. Want of jurisdiction over the subject matter, if any existed, could not be waived. Sturman v. McCarthy, 232 Mass. 44, 48.
The respondent then filed on February 25, 1929, a plea to the jurisdiction, setting out that the child was adopted and her name changed to Joan Crawford by decree of a court of competent jurisdiction in the State of Maine entered in October, 1928, upon petition by Robert B. Crawford, Junior, and herself, his wife, all being then residents in the State of Maine, and that that court had jurisdiction of the parties and the subject matter and that hence a probate court of this Commonwealth has no jurisdiction over the present petition. At the hearing upon this plea, an exemplified copy of the decree of the Maine court was in evidence. Thereby it appeared that the respondent and her present husband duly petitioned for the adoption of Joan Hersey, child of the petitioner' and the respondent born in Boston in June, 1922, alleging that the petitioning Mrs. Crawford, mother of the child, was by decree of a probate court in this Commonwealth granted a decree of divorce on the grounds of cruel and abusive treatment, and also granted the custody of the minor child Joan. That petition was dated on October 13, 1928, and so far as appears by that record was not assented to by the present petitioner as father of the child and no order of notice issued to him. Decree was entered on October 16, 1928,
It is provided by G. L. c. 208, § 28, that a decree as to custody of minor children entered as part of a divorce proceeding “afterward may from time to time, upon the petition of either parent,” be revised or altered or a new decree made “as the circumstances of the parents and the benefit of the children may require.” It is also provided by § 30 of the same chapter, as affected by St. 1922, c. 532, § 6, that “a minor child of divorced parents who is a native of . . . this commonwealth and over whose custody and maintenance” the Superior or a probate court of this Commonwealth “has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under, that age, without the consent of both parents, unless the court upon cause shown otherwise orders.”
It is plain that under these sections the decree originally entered granting the divorce and awarding the custody of the minor child was within the jurisdiction of the court and might be modified subsequently if the parties remained within the Commonwealth. Oliver v. Oliver, 151 Mass. 349, 351. Stone v. Duffy, 219 Mass. 178. Perkins v. Perkins, 225 Mass. 392, 397. These provisions of the statute as matter of statutory construction confer upon the courts which have had and have exercised jurisdiction as to the custody of children of divorced parents, as part of the decree granting divorce to the parents, continuing authority as an incident of those proceedings to revise or alter orders
The present petition is addressed to the court wherein was entered the decree of divorce and custody of the child to modify that decree in the exercise of the continuing jurisdiction thus established. The facts are, however, that in truth there has been violation of said § 30 in that the respondent has removed the child from the Commonwealth without either the consent of the petitioner or an order of court to that end. The child is now physically in the State of Maine and beyond the reach of process issued by courts of this Commonwealth. That factor does not deprive courts of this Commonwealth of jurisdiction to exercise the reserved and continuing power to change their determination defining the status of the children at the instance of either parent. Recognition of such changed determination will be given at least within this Commonwealth. It is quite conceivable that occasions may arise where such recognition may assume practical value of some importance. The respondent was the libellant in the divorce proceedings. It
The next question to be determined is whether the decree of adoption made by the Maine court deprives the courts of this Commonwealth of jurisdiction to consider the present
The statute of Maine respecting notice upon petitions for adoption, Rev. St. c. 72, § 36, as amended by St. 1927, c. 189, reads in part: “Before such petition is granted, written consent to such adoption must be given by the child, if of the age of fourteen years, and by each of his living parents, if not hopelessly insane or intemperate; or, when a divorce has been decreed to either parent, written consent by the parent entitled to the custody of the child; or such consent by one parent, when, after such notice to the other parent as the judge deems proper and practicable, such other parent is considered by the judge unfit to have the custody of the child.” This statute does not seem in terms to require notice to a divorced parent who has not been given custody of the child, but it does not expressly dispense with such notice. In interpreting this statute it was said respecting the rights of a mother in a
It is to be observed that the present petition was filed and notice thereof given in hand to the respondent about four months, and she appeared in the present proceeding almost three months, before the petition for adoption was filed in the Maine court. The Probate Court thus had complete jurisdiction of the cause and the parties for a considerable time before the filing of the petition for adoption in the Maine court. Four days covered the entire time of the filing of the petition and the entry of decree for adoption in the Maine court. No notice in law or in fact was given or came to the knowledge of the petitioner. The Maine court acquired no jurisdiction over the petitioner.
There was no error in denying the plea to the jurisdiction.
The petition for modification of the decree was heard on its merits. Several witnesses testified. The petitioner, his mother and two friends were called in his behalf and one friend of the respondent in her behalf. The evidence was taken by a stenographer and is printed in full in the record. A decree was entered modifying the decree nisi of March 13, 1925, and the custody of the minor child Joan was granted to the petitioner without right on the part of the respondent to visit or even to see her. The respondent appealed.
The rule of practice upon a probate appeal of this nature, following that in equity, is that questions of fact as well as of law are brought before this court, whose duty is to examine the evidence and decide the case according to its judgment, giving due weight to the finding of the trial judge. That finding will not be reversed unless plainly wrong. Patterson v. Pendexter, 259 Mass. 490, 493. Edwards v. Cockburn, 264 Mass. 112, 120. The original decree awarding custody to the respondent must be presumed to have been right. It settled all questions in issue between the parties at the time it was entered. It was designed to endure until facts brought to the attention of the court required a change. The child was then less than three years old. Since then she has lived continuously with the respondent and was at the time of the entry of the decree now under review about seven years old. A baby, then about two years old, had been born to the respondent. The petitioner has seen his child in the meantime only a comparatively few times. The testimony tended to show that, notwithstanding the grounds on which
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. It is a proceeding solely with reference to the custody of a little girl. 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. Every public and private consideration establishes this as the dominating rule. There is nothing in the record to justify the conclusion that the child is not happy and healthy in her present home. The evidence was that she was attending school. She has the constant care of her own mother and is being reared with her baby brother of the half blood.
Order denying plea to jurisdiction affirmed.
Decree modifying decree nisi dated March 13, 1925, and awarding custody of Joan Hersey to the petitioner, reversed.