William C. Madden (William) appeals from a decree on a petition in equity brought by Ana A. Madden (Ann) and a trustee for her under a separation agreement *358 dated February 1, 1955. The petition sought modification and enforcement of a previous decree dated August 1, 1967, awarding Ann, as William’s wife, separate support for herself and their three minor children. The other respondents are trustees under two trusts administered in Massachusetts, one established by William’s father in 1923 (the M. L. Madden trust), and one established under the will of his mother by a codicil executed in 1942 (the Grace E. Madden trust). William’s income as life beneficiary of the two trusts is about $52,000 a year, and the petition sought to hold his property in the trusts to respond to and be applied to the satisfaction of the decree to be rendered. William was not served with process, but appeared specially to contest the jurisdiction of the court and to protect his property interest in the trusts. The judge made a report of material facts, and the evidence is reported.
William and Ann were married in Massachusetts in 1949 and thereafter lived in Massachusetts. One child was born to them in 1950 and another in 1951. They separated in October, 1954, and entered into a separation agreement dated February 1, 1955. The separation agreement, made between Ann and William and their trustees, provided that Ann might live apart from William and gave custody of the two children to Ann; William promised to provide, tax free, $400 a month for her support and $150 a month for the support of each child, plus certain medical and educational expenses, and agreed that if without legal justification he failed to make payments by the fifth of each month he would give the trustees under his parents’ trusts written authorization to make the payments directly to Ann.
In May, 1957, there was a conditional reconciliation; the parties lived together until December, 1957, and a third child was born to them in February, 1958. For almost six years after the last separation in December, 1957, the trustees of the M. L. Madden trust made the monthly payments provided in the separation agreement. In August, 1963, William and Ann orally agreed to modify the separation agreement to provide for the support of the third *359 child, and the aggregate monthly payment was increased to $1,000. Monthly payments of $1,000 were made by the trustees until March 29, 1968.
In the fall of 1966, William was living in an apartment in Natick, Massachusetts. He told a Boston attorney that he wanted a divorce from Ann in order to marry a Mrs. Z. On November 25, 1966, he and the attorney flew to Atlanta, Georgia, to establish William’s residence there as a basis for divorce. They met a Georgia attorney, rented a furnished apartment on the premises of the Georgia attorney for roughly $10 a week, opened a checking account in an Atlanta bank, arranged for telephone service, and flew back to Boston that evening. Since then William has spent some time in Atlanta and some time in Massachusetts. His checks from the trusts were deposited in a Natick bank until March, 1967, and in March William and Ann filed joint State and Federal tax returns for 1966, showing a Massachusetts address for William.
On May 3, 1967, Ann filed a petition against William for living apart for justifiable cause under G. L. c. 209, § 32. The petition alleged that William had moved to Georgia on or about December 1, 1966, and that he intended to seek a Georgia divorce in violation of the separation agreement. William was served by publication; a copy of the citation sent to him at an Atlanta address was returned undelivered. On June 9, 1967, he entered a special appearance; he made a special plea to the jurisdiction, which was overruled.
On July 2, 1967, William filed a petition for divorce in Georgia on the ground of desertion, alleging as required by Georgia law that he had been a bona fide resident of Georgia for six months. The petition failed to list the three minor children of the parties as required by Georgia law, and failed to mention Ann’s petition filed May 3; 1967. Ann was served by publication and by mail, but did not appear in the Georgia suit. On July 28, 1967, Mrs. Z purchased a home in Barnstable County, Massachusetts, and William stayed there for a few days in July.
On August 1, 1967, after hearing, a decree was entered on *360 Ann’s petition. The decree determined that she was living apart from William for justifiable cause, awarded her custody of the three minor children, and made provisions “in accordance with a written agreement between the parties dated February 1, 1955, as amended,” that he pay her $500 a month for her support and $166.67 a month for each of the three children, plus their educational expenses. No appeal was taken from that decree. ,J
On September 8, 1967, a decree of divorce was granted to William in Georgia. He returned to Massachusetts and stayed here from September 8 to September 15, 1967. On September 15, he and Mrs. Z went to Georgia and were married there.
In April, 1968, Ann filed her present petition. A plea to jurisdiction and motion to dissolve a temporary restraining order and to dismiss the petition were denied in June, 1968. After hearing, a final decree was entered April 22, 1969. The judge found that William did not have a bona fide residence in Georgia for the required period, and that his failure to list the names of the children in his divorce petition was intentional and for the purpose of deceiving the Georgia court, and decreed that the Georgia divorce decree was not entitled to be accorded full faith and credit or to be recognized in this Commonwealth. The decree also directed William to appoint a successor trustee under the separation agreement, held the M. L. Madden trust to respond to and be applied to the satisfaction of the payments for the support of Ann and the three children, modified the decree of August 1, 1967, accordingly, and provided that the Grace B. Madden trust may not be held to respond to and be applied to the satisfaction of the support payments.
William now claims (1) that the decree of August 1, 1967, requiring him to pay Ann certain sums of money, was void because he was a nonresident who was not served with process and did not appear generally; (2) that the separation agreement was a bar to the present suit; (3) that the petition in the present suit fails to allege a basis for relief cognizable in equity, that there was an adequate remedy at *361 law, and that there was no proof that any debt was owed when the petition was filed; (4) that the judge erred in failing to give full faith and credit to the Georgia divorce decree; and (5) that it was error to enter a decree against him personally, directing him to appoint a successor trustee under the separation agreement.
1.
The decree of August 1, 1967.
Ann’s 1967 petition was filed under G. L. c. 209, § 32. “It is plain that the court had jurisdiction over the petition, at least so far as concerned custody of the minor children and direction for their personal treatment. . . . The court doubtless had jurisdiction, also, over the relation of the petitioner to the status of her marriage with the respondent so far as necessary to protect her as a resident of this Commonwealth.”
Schmidt
v. Schmidt,
“Every court confronted with a law suit of any kind is under both the necessity and the duty of determining whether or not it has jurisdiction to entertain the suit, and it necessarily has jurisdiction to make this determination. If it determines erroneously that it has jurisdiction, its own erroneous determination does not give it any true jurisdiction of the case as a whole, and its judgment is in general void and therefore subject to collateral attack, but in accordance with principles which also form the basis for the familiar doctrine of res judicata the judgment
may,
after it
*362
becomes final, be binding upon the
parties
to the suit although not upon others, and the rights of
parties
may therefore be limited to appeal, writ of error, petition to vacate, or other methods of direct attack.”
Old Colony Trust Co.
v.
Porter,
In response to Ann’s 1967 petition William entered a special appearance and made a special plea to the jurisdiction of the court over him. His special plea was overruled and he did not appeal. The court had jurisdiction to rule on the special plea, and its ruling that it had jurisdiction over him was binding on him unless set aside on appeal or other direct attack. It follows that he was fully bound by the decree of August 1, 1967, and cannot now attack it collaterally.
2.
The separation agreement as a bar.
William contends that the separation agreement of February 1, 1955, bars the present suit, citing
Bailey
v.
Dillon,
*363
On William’s theory, it may be that the enforcement of the separation agreement should be sought by his trustee under the separation agreement rather than by him. G. L. c. 209, §§ 2, 6, as they were before St. 1963, c. 765, §§ 1 and 2.
Proctor
v.
Lombard,
But we need not resolve these difficulties, since the separation agreement does not bar a proceeding under G. L. c. 209, § 32. That section provides that “upon the application of the . . . wife . . . the court may make further orders relative to the support of the wife and the care, custody and maintenance of their minor children . . . and may, from time to time, upon a similar application, revise and alter such order or make a new order or decree, as the circumstances of the parents or the benefit of the children may require.” As we said in
Wilson
v.
Caswell,
3.
Want of equity.
William treats Ann’s present petition as an attempt to state a basis for relief “cognizable under the general principles of equity jurisprudence, arising between husband and wife,” under G. L. c. 208, § 33, as in
*364
corporated by reference by G. L. c. 209, § 33. On this basis he contends that no such cause is shown, citing
Blumenthal
v.
Blumenthal,
We treat the petition as seeking modification and enforcement of the August 1, 1967, decree pursuant to G. L. c. 209, §§ 32, 33, and G. L. c. 208, §§ 12, 13.
Williamson
v.
Williamson,
There was ample basis for such a proceeding on April 23, 1968, when the present petition was filed. After the support decree of August 1, 1967, William obtained the Georgia divorce decree and remarried. In February, 1968, William notified the trustees to stop providing educational support for the children. According to Ann’s uncontradicted testimony, payments for February and March were not made, as the separation agreement provided, “not later than the fifth of each month.’’ Nor were payments made “tax free,’’ as required by the separation agreement. Compare
Meyer
v.
Meyer,
4.
Effect of the Georgia divorce decree.
William asserted that the Georgia divorce decree was a bar to the maintenance of the present suit, and claims error in the judge’s refusal to give the Georgia decree full faith and credit. Separate support under G. L. c. 209, § 32, is dependent on the existence of the marriage relation, and termination of that relation by a valid divorce decree rendered in another State entitles the husband to a discharge from his liability for payments which had not become due at the time of the divorce.
Rosa
v.
Rosa,
But the Georgia divorce decree has the effect of terminating liability for support only if it is valid.
Welker
v.
Welker,
The judge found that “William did not have a bona fide residence in the State of Georgia for the requisite period be *366 fore he filed a petition for divorce.” That finding is attacked on this appeal, and it is contrary to testimony given by William and to an allegation in Ann’s petition of May 3, 1967. But the judge was not bound by William’s testimony or by Ann’s allegation in the prior suit. His finding is supported by bis subsidiary findings and by substantial evidence, and we cannot say it is plainly wrong.
According to William’s testimony, he first went to Atlanta late in November, 1966. This was the one day trip with his Boston attorney to visit bis Georgia attorney with a view to divorce. He testified that he flew to Georgia again in December, returned to Boston later that month, drove to Atlanta late in December with Mrs. Z, and returned to Boston January 14-16 and January 25-29, 1967. On January 5, 1967, six months before he filed his petition for divorce, he was staying in a $10 a week apartment rented from his Georgia attorney; Mrs. Z was staying in the Marriott Hotel in Atlanta. When he returned to Boston January 25, he stayed at Mrs. Z’s home in Wellesley. He gave a Massachusetts return address on a valentine sent to bis daughter in February, paid rent on his Massachusetts apartment until some time in February or March, sold his Massachusetts furniture in the early spring, gave a Massachusetts address on income tax returns signed in March, deposited the checks from the trustees in a Massachusetts bank until March, and did not give a notice of change of address to his life insurance companies until 1968. In July, 1967, Mrs. Z bought a house in Massachusetts, and William stayed there for a few days. Neither William nor Mrs. Z owns any real estate in Georgia. Georgia Code 1933, § 30-105, as amended by Ga. Laws (1967) No. 504, § 1, requires that a divorce petition show “whether or not there are any minor children of the parties and the name and age of each minor child.” William’s divorce petition failed to list the three minor children of the parties, or to mention Ann’s petition then pending in Massachusetts. The judge found that the failure to fist the children was intentional and for the purpose of deceiving the Georgia court.
*367
On these facts we think the finding was justified that William’s alleged domicil in Georgia was not bona fide. The case thus comes within the principle of
Patterson
v.
Patterson,
5.
The appointment of a successor trustee.
Paragraph 2 of the decree provides that William “is directed to appoint forthwith a Trustee in place of Lothrop Withington deceased, -under separation agreement of February 1, 1955, and said party so appointed is made a party hereto.” William asserts that under the separation agreement, in the event of the death of trustee Withington, he was to “have the sole power to choose his successor,” that this trust is not within the scope of the power of the courts to appoint trustees to fill vacancies -under G. L. c. 203, §§ 5 et seq., and that the direction is a personal decree against William not warranted by his special appearance to defend his property. We agree that this paragraph of the decree, directing personal action by William, is erroneous in view of William’s special appearance.
Schmidt
v.
Schmidt,
*368 6. The decree appealed from is modified by striking out paragraph 2, and as so modified it is affirmed. Costs and expenses of appeal may be allowed to the appellee or her counsel in the discretion of the Probate Court.
So ordered.