Anderson v. Anderson
| Decision Date | 26 June 1968 |
| Citation | 354 Mass. 565,238 N.E.2d 868 |
| Parties | Claire M. ANDERSON v. Lawrence M. ANDERSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Abner Kravitz, Fall River, for respondent.
Joseph B. Abrams, Boston, for petitioner.
Before WILKINS, C.J., and WHITTEMORE, KIRK, SPIEGEL, and REARDON, JJ.
The petitioner brought her suit in equity seeking cancellation of an antenuptial agreement on the ground of fraud. The respondent husband filed a plea in abatement. It was overruled, following which he filed an answer denying all allegations of the petition. He now appeals from a decree of the Probate judge overruling his plea in abatement and from the final decree which ordered the antenuptial agreement cancelled. There were two reports of material facts; one on the plea in abatement and the other on the subject matter of the petition itself. The evidence is reported.
1. We first discuss the plea in abatement. The judge's report indicates that the parties were married in Florida in January, 1963, and last lived together in Fall River, having separated in October, 1965. In May of 1966, the petitioner, described as of New Bedford, brought a separate support proceeding in the Bristol County Probate Court against the respondent, described as of Westport. In September, 1966, this proceeding was dismissed on motion of the petitioner. Since September 14, 1966, the petitioner has resided in an apartment in Boston for which she has a two year lease running through September 30, 1968.
The respondent claims that the suit was vulnerable to abatement in that jurisdiction in the Probate Court is based on residence which is equivalent to domicil and that the petitioner's domicil was that of her husband which was in Bristol County. He adds that he had committed no wrong against the petitioner which would justify the establishment by her of a separate domicil. Rolfe v. Walsh, 318 Mass. 733, 64 N.E.2d 16. He further contends that the Probate Court in Bristol County has exclusive jurisdiction of the matter in that the prior action for separate support, in which the antenuptial agreement was in issue, had been brought there.
Addressing ourselves to the second contention, we are of opinion that while G.L. c. 215, § 7, confers exclusive jurisdiction of a case on that Probate Court which first takes cognizance of it, it is not applicable here in that the two actions brought by the petitioner were different. The petitioner brought her first action under G.L. c. 209, § 32, while she instituted her second one in equity under G.L. c. 215, § 6, as most recently amended in 1963.
The 1963 amendment of G.L. c. 215, § 6, bears on the respondent's first contention. This amendment conferred on the Probate Courts a new and broad equity jurisdiction concurrent with that of the Superior Court, with certain immaterial exceptions. It is apparent that the Legislature intended to make requirements for commencing and prosecuting suits in equity in both the Superior and Probate courts as closely similar as possible. Certainly nothing in G.L. c. 215 indicates a contrary intent. The equity jurisdiction of the Superior Court is established by G.L. c. 214. Section 5 of that chapter provides that the venue of suits in equity shall be the same as that of transitory actions. General Laws c. 223, § 1, lays the venue of transitory actions in the county where either party 'lives or has his usual place of business.' We need not here treat the question of whether 'lives' as employed in G.L. c. 223, § 1, is to be equated with 'domicil.' See Williams v. Campbell, 3 Metc. 209, 211; Hanley v. Eastern S. S. Corp., 221 Mass. 125, 109 N.E. 167; 44 Harv.L.Rev. 41, 44--47. Cf. G.L. c. 208, § 6; Sampson v. Sampson, 223 Mass. 451, 461, 112 N.E. 84. It is our view that the record and transcript before us sufficiently demonstrate that the petitioner was domiciled in Boston and thus might bring her petition in Suffolk County. While, as the respondent maintains, a wife's domicil generally follows that of her husband, she may live apart from him and establish a separate domicil 'if he is guilty of such a marital wrong toward her as will justify her in living separate and apart from him.'...
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