324 Mass. 340 | Mass. | 1949
After our earlier decision in this case (319 Mass. 568), there was a hearing in the Probate Court. On March 24, 1947, a decree nisi of divorce was entered on the ground of cruel and abusive treatment, and the libellee appealed. In the meantime, there have been decided Sherrer v. Sherrer, 334 U. S. 343, and Coe v. Coe, 334 U. S. 378 (reversing respectively two of our later decisions, Sherrer v. Sherrer, 320 Mass. 351, and Coe v. Coe, 320 Mass. 295), which overrule, certainly in part, Andrews v. Andrews, 188 U. S. 14, and give to Davis v. Davis, 305 U. S. 32, a far more general application than had been our interpretation of that case. See Rubinstein v. Rubinstein, 319 Mass. 568, 571-572. We are now asked to reconsider our earlier decision that the libellee had no bona fide domicil in the State of Nevada, and that that State lacked jurisdiction to grant him a divorce. We, accordingly, make such reconsideration, noting that there is a presumption of the validity of the Nevada decree. Williams v. North Carolina, 325 U. S. 226, 233-234. Esenwein v. Commonwealth, 325 U. S. 279, 280-281.
The Sherrer case is founded upon the proposition that “the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full
The first question confronting us is the determination of the category in which the case falls. The parties were married in this Commonwealth on August 22, 1926, and lived together here until December, 1933. The husband’s complaint seeking a divorce was filed in the Nevada court on January 29, 1938. The wife was served with process in this Commonwealth on February 11, 1938. The decree
In our opinion, the proceedings in Nevada were ex parte. Up to and including the decisive date of the decree there was no appearance nor participation by the defendant wife, who never had been in Nevada. The only service was in this State. In Rice v. Rice the only service was in Connecticut. See 134 Conn. 440, 442-443. It is, therefore, permissible for this court to reexamine the findings of jurisdictional facts. Upon reconsideration now of our earlier reexamination of such facts in 319 Mass. 568, we affirm our conclusion that the Nevada court lacked jurisdiction.
The libellee also urges upon us that the evidence did not warrant a finding of cruel and abusive treatment. The judge made a report of the material facts found by him. G. L. (Ter. Ed.) c. 215, § 11. We need not recount the reported evidence, as the libellee does not contend that there was no evidence of three instances of physical violence reported by the judge. In the summer of 1933 when they were returning from New York by automobile the libellee hit the libellant with a pillow; her head fell back; she became hysterical; and the libellee threatened to leave her on the road. Early in December, 1933, he became angry,
Decree affirmed.