Atwood v. Atwood
| Decision Date | 24 May 1937 |
| Citation | 297 Mass. 229,8 N.E.2d 916 |
| Parties | ETHEL G. ATWOOD v. BENJAMIN W. ATWOOD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 15, 1936.
Present: CROSBY PIERCE, DONAHUE, LUMMUS, & QUA, JJ.
Marriage and Divorce, Validity of marriage, Foreign marriage. Domicil. Words, "Residing." In order to come within the prohibition of G. L. (Ter. Ed.) c. 207, Section
10, making void in this Commonwealth certain marriages contracted elsewhere with intent to evade the marriage laws in force here, it must appear that one of the parties not only had a domicil here at the time of the foreign marriage but that he also had an intention to continue that domicil.
A finding, that one in military service was not "residing" in Massachusetts within G. L. (Ter. Ed.) c. 207, Section 10, at the time of his marriage in
Maryland, was not precluded by the mere fact that he had once lived in Massachusetts and in a previous court proceeding here had been described as a resident of Massachusetts. A finding that a party to a foreign marriage did not have an intention to
"continue to reside" in Massachusetts within G. L. (Ter. Ed.) c. 207 Section 10, was warranted by evidence that the marriage took place in
Maryland while he was in military service and just previous to his departure for France, and that the parties to the marriage had made no marital plans for the future and had no intention of living in any particular place although they had the intention ultimately to live in
Massachusetts and actually resided together in Massachusetts as soon as the husband returned from France.
A marriage in Maryland, not shown to have been invalid there, was not invalid here under G. L. (Ter. Ed.) c. 207, Section 10 although as to one party it was a remarriage within two years contrary to G. L. (Ter. Ed.) c.
208, Section 24 where it did not appear that at the time of the marriage that party resided and intended to continue to reside here.
PETITION for separate maintenance, filed in the Probate Court for the county of Plymouth on November 7, 1934.
The case was heard by L. E. Chamberlain, J., and a decree was entered for the petitioner. The respondent appealed.
The case was submitted on briefs.
H. F. Hathaway & S.
C. Saunders, for the respondent.
E. G. Townes, for the petitioner.
The respondent named in a petition for separate support has appealed from a decree of the Probate Court which declared that because of his cruel and abusive treatment the petitioner was living apart from him for justifiable cause and ordered the respondent to pay to the petitioner a stated sum of money monthly for the support of the petitioner and a minor child. It is the contention of the respondent that his marriage to the petitioner was null and void in this Commonwealth and that therefore the Probate Court was without jurisdiction to entertain the petition for separate support. Wright v. Wright, 264 Mass. 453 , 456.
The respondent was divorced from a former wife on a libel brought by her in the Superior Court by a decree which became absolute on August 20, 1917. By statute he was prohibited from marrying again within two years of that date. G. L. (Ter. Ed.) c. 208 Section 24. Within that period, on October 4, 1918, the petitioner and the respondent were married in Baltimore, Maryland. The petitioner left her home in South Hanson in this Commonwealth on the day of the marriage. When the marriage ceremony was performed she immediately returned to her home. The respondent was, at the time, in the military service of the United States, and following the marriage at once left for France where he remained eight months. Upon his return to this country he went to live with the petitioner at South Hanson.
The marriage was entered into by the petitioner in good faith. She knew that the respondent was divorced but not the date of the divorce or that there was any question of the length of time which must elapse after the divorce before the respondent could remarry or that there was any impediment to the marriage. The facts found do not provide the basis for a finding that the petitioner went to Maryland to be married with the purpose of evading the marriage laws of this Commonwealth.
It is not contended by the respondent, and the record does not warrant the conclusion, that the marriage of the parties was an invalid marriage under the laws of the State of Maryland. It is the general rule that where parties residing in this Commonwealth go into another State and enter into a marriage valid by the laws of that State it will be recognized here as a valid marriage. Palmer v. Palmer, 265 Mass. 242 . But our Legislature has, and early exercised, the power to declare such a marriage void in this Commonwealth if the parties went to another State to be married in order to evade provisions of our laws which forbade their marriage in this Commonwealth. Murphy v. Murphy, 249 Mass. 552 , 554. Commonwealth v. Lane, 113 Mass. 458 , 464. Rev. Sts. c. 75, Section 6. The respondent rests his contention that his marriage to the petitioner in Maryland is void in Massachusetts on such a statute, G. L. (Ter. Ed.) c. 207, Section 10, which provides: "If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth."
The probate judge found that the respondent at the time of his marriage to the petitioner "was not residing and intending to continue to reside" in this Commonwealth. The evidence was not reported, but at the request of the respondent the judge made a report of the material facts found by him. G. L. (Ter. Ed.) c. 215, Section 11. The questions raised by the appeal therefore are whether the findings of the judge are inconsistent with each other and whether they justify the general conclusion reached by him. Wyness v. Crowley, 292 Mass. 461 , 463.
The phrase of the statute "residing and intending to continue to reside in this commonwealth" means: having a domicil and intending to continue to have a domicil in this Commonwealth. Hanson v. Hanson, 287...
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