319 Mass. 568 | Mass. | 1946
This libel for divorce, filed February 20, 1945, in the Probate Court for Worcester County, alleges desertion and other grounds and seeks custody of a minor child. The answer contains a denial and sets up that on that date the libellant was not the wife of the libellee, because he had obtained a decree of divorce at Reno, Nevada, on March 28, 1938. At the hearing it was agreed that the libellant was entitled to a decree for desertion unless the Nevada divorce was a bar. From a decree reciting that the parties "are not now husband- and wife, having been divorced in another jurisdiction,” and dismissing the libel, but awarding custody, the libellant appealed. The judge made a report of the material facts found by him. G. L. (Ter. Ed.) c. 215, § 11. The evidence is reported. It is our duty to examine the evidence and to decide the case on our own judgment. Questions of fact as well as of law are open for our consideration. Vergnani v. Guidetti, 308 Mass. 450, 455. We can find facts not expressly found by the judge, and if we are convinced that he was plainly wrong, we can find facts contrary' to his findings. Lowell Bar Association
The parties were married in Boston on August 22, 1926, ■and lived together in Worcester until 1933. They have one child, a daughter born April 5, 1928. In 1934, at a time when a cause of divorce for desertion had not accrued under G. L. (Ter. Ed.) c. 208, § 1, the wife filed a petition for separate support in the Probate Court for Worcester County, alleging desertion and “cruelty,” and on May 1, 1934, a decree was entered to the effect that she was living apart from the husband for justifiable cause, and orders relating to custody and payment for support were made. That decree, which did not set forth the grounds on which it was based, was never modified, but a petition for modification was heard and dismissed on March 25,1935, while a “motion to rehear case” was filed by the husband in March, 1937, but never heard.
On January 29, 1938, the husband filed a complaint for divorce on the ground of extreme cruelty in the Second Judicial District Court of the State of Nevada in and for the County of Washoe. It alleged that the husband “is now, and has been, for more than six weeks immediately preceding the commencement of this action, a bona fide resident of Washoe County, Nevada, and that he is now and has been during all of the aforesaid time, actually, physically and corporeally present and residing in said County and State.” The complaint also contained prayers that custody of the daughter be awarded to the wife, and that the husband be ordered to pay $5 a week for the support of the child. In an “affidavit for publication of summons” signed and sworn by the husband, the wife was alleged never to have resided in Nevada, and was described as residing in th.e “City of Roxbury, State of Massachusetts.” The wife was served with a copy of the complaint and summons in Boston by a deputy sheriff of Suffolk County. Thereupon through her Massachusetts attorney she filed a special appearance, which was accompanied by a prayer that the action be dismissed for lack of jurisdiction, or in the alternative that she be “given an opportunity to get in touch with an attorney
“In general, it is well established that jurisdiction to grant a divorce must be based upon the domicil of at least one of the parties, and that the jurisdiction of a State which has undertaken to grant a divorce may be made the subject of inquiry elsewhere.” Cohen v. Cohen, ante, 31, 34, and cases cited. The husband contends, however, that the wife cannot question the jurisdiction of the Nevada court, because the filing of the special appearance brought the case within the principle of Davis v. Davis, 305 U. S. 32. We are not impressed with this contention. Wé have interpreted the Davis case “as resting on the basis that the jurisdictional facts were actually litigated and determined to exist in the court granting the divorce.” Cohen v. Cohen, ante, 31, 35. Bowditch v. Bowditch, 314
The main question is presented by the probate judge’s findings as to domicil. He found “as the most material fact in this case that he [the husband] actually acquired a domicil in Reno from December 15, 1937, to the time. of filing the complaint and for some months later (until April 3, 1938).” The judge found, “as basis for the above facts, that he left Massachusetts with no intention to return, but to stay away indefinitely and perhaps permanently.' This is borne out by the fact that he never returned to Massachusetts until February, 1940, and then for a special reason and not because he intended to return. While in Reno he intended to make it his home for some time — principally because he thought the law so required — but having no intention at that time to five elsewhere. He had some idea of looking for business in his line, the purchase and sale of wool, or rather brokerage of contracts therefor on which he received a commission. There were large wool growing areas in this part of the west, and he sought and did some business. I find, if material, that his purpose and intent in leaving Massachusetts and going to Reno and acquiring a domicil, as above found, were not laudable, but the contrary. He went for the purpose of evading his obligation to support his wife and child and [in order not] to obey the decree of this court for such support, and for the further purpose of obtaining the divorce. He left soon after being served with process from this court on a complaint for contempt for not making pay- ” ments ordered by said decree.”
We summarize other findings of the probate judge. The husband left Worcester about December 12, 1937, and arrived in Nevada “on or about” December 15, 1937. About ten days after he left, a copias for his arrest was issued in the separate support case. He left Reno on or about April 3, 1938, and went to New York city, where he
In a "supplementary report of findings of material facts” the probate judge stated: "I find that the libellee deserted the libellant on or about December 7, 1933, and that this desertion continued, without justification, up to the filing of the present libel.” This finding is inconsistent with the ruling that he was validly divorced in Nevada on March 28, 1938. Unless the wife continued to be in law his wife, the state of desertion which, it was found, began on or about December 7, 1933, could not have existed after the granting of the divorce in Nevada, if that divorce was valid, nor could it have continued "without justification” until February 20, 1945, the date of filing the present libel.
In accordance with our duty we proceed to a considera- ' tian of the evidence, and we do so in the light of the finding that the testimony of the husband was not found to be "frank and truthful.” See Berman v. Coakley, 257 Mass. 159, 164. A certificate of the city clerk of the city of Boston discloses that the husband was born in Worcester and lived
On the evidence we find that the husband was not domiciled in Nevada at any time; that the Nevada court was" without jurisdiction to grant the divorce; that he was absent from the Commonwealth as a fugitive from justice; that be left the Commonwealth because of the citation for contempt in the separate support case; that a copias for his arrest was issued December 21, 1937, in that case; that he returned within two months after December, 1939, when the financial questions involved therein had been adjusted; and that, contrary to the finding of the judge, he did not leave the Commonwealth “with no intention to return.” This case falls within the authority of such cases as Bowditch v. Bowditch, 314 Mass. 410, Coe v. Coe, 316 Mass. 423, Cohen v. Cohen, ante, 31, Williams v. North Carolina, 325 U. S. 226, and Esenwein v. Commonwealth, 325 U. S. 279.
We now consider whether a divorce on the ground of desertion should be granted. Notwithstanding that the parties agreed that, unless the Nevada divorce was a bar, the wife would be entitled to a decree of divorce for desertion, and notwithstanding that the judge found that the wife had been deserted on or about December 7, 1933, and that the desertion had continued until the filing of the present libel, it is plain that a divorce on that ground cannot be granted. The petition for separate support (G. L. [Ter. Ed.] c. 209, § 32) filed in 1934 alleged “cruelty,” as well as desertion. We have already noted that at the time of filing that petition a cause of divorce for desertion had not accrued within the provisions of G. L. (Ter. Ed.) c. 208, § 1. And it has been held that the overt act of filing a libel on the grounds of cruel and abusive treatment necessarily shows a legal intention on the part of the libellant not to live with
The present libel also contains allegations of cruel and abusive treatment and that the husband “being of sufficient ability did not provide suitable support for libellant.” The latter allegation falls short of the statutory requirements, which are that “the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance.” G. L. (Ter. Ed.) c. 208, § 1. Peabody v. Peabody, 104 Mass. 195. Holt v. Holt, 117 Mass. 202. Keenan v. Keenan, 219 Mass. 107.
While the record fails to contain any evidence of cruel and abusive treatment, we are uncertain whether such testimony was not withheld by reason of a limitation of the issues by. the judge which led to the making of the stipulation. Consequently, we feel that the door.should be left open for a hearing of the libel on this ground.
The decree is reversed. The case is to be further heard on the issue of cruel and abusive treatment. Costs and expenses of this appeal may be allowed to the libellant or her . counsel in the discretion of the Probate Court. G. L. (Ter. Ed.) c. 208, § 38, as appearing in St. 1933, c. 288.
So ordered.