Marshall v. Marshall

236 Mass. 248 | Mass. | 1920

Braley, J.

The appellate court correctly ruled that the petition was brought under K L. c. 153, § 33, while the decree is in accordance with § 37. The question for decision therefore is whether the Probate Court had authority to enter the decree. The material allegations which the respondent was called upon to meet are, that the petitioner is his lawful wife; that he fails to support her; that she is living apart from him for justifiable cause; and “that there has been born to them the following children: Margaret Marshall, born March 13, 1905.” The relief asked is, that the court will make such temporary and permanent orders as it deems expedient concerning her support, “and the care, custody and maintenance of said minor children.” It appears from the recitals in the record that the petitioner failed to sustain the essential allegations relating to her alleged right to separate support. Bucknam v. Bucknam, 176 Mass. 229. Smith v. Smith, 154 Mass. 262. Everett v. Everett, 215 U. S. 203. But by § 37, “If the parents of minor children live separately, the Probate Court shall have the same power, upon the petition of either parent, to make decrees relative to their care, custody, education and maintenance, as relative to children whose parents are divorced; and shall determine which of the parents of such children shall be entitled to such custody in accordance with the law relative to the custody of children whose parents have been divorced.” . The respondent under our practice was not required to file an answer, and the issues being shown by the petition, he could not have been misled. We are of opinion that the petition is sufficient to warrant a decree under § 37. The allegation that she is living apart from her husband for justifiable cause means not only actual separation, but that he had failed to perform his matrimonial obligations. If, however, separation of the spouses was shown, the court even without passing on the question of the wife’s justification could “make such temporary and permanent orders as it deemed expedient concerning . . . the care, custody and maintenance of the minor children of herself and her said husband.” While the evidence is not before us the decree recites, that “it appearing to the court that said petitioner and her said husband are living separately,” the petitioner is given the care and custody of their minor child, toward whose support the respondent is ordered to make certain payments until the further order of the court. The identity of the issues viewed in connection with the decree are free from doubt, namely, that the parents were living separately and that the husband and father should be required to contribute to the support of his child, the care and custody of which under certain conditions is awarded to the wife and mother. The court had jurisdiction of the parties and of their domestic relations in so far as disclosed by the record, and the respondent who appeared had a full opportunity to be heard. Chase v. Proprietors of Revere House, 232 Mass. 88, 98. If for any reason relief were denied to the wife, the judge if he deemed it expedient could under the express wording of the petition make provision for the care, custody and support of their minor child, and having determined the fundamental fact of separation, the decree which followed was not in excess of the jurisdiction of the court. See Fourth National Bank of Boston v. Mead, 214 Mass. 549. The respondent’s first, second, fifth and sixth requests, and his motion to dismiss were all denied rightly, and under the terms of the report the case is to stand for further trial.

So ordered.