Aufiero v. Aufiero

• Decision Date: 10 January 1955
• Citation: 332 Mass. 149,123 N.E.2d 709
• Parties: Rocco L. AUFIERO and others v. Marion H. AUFIERO. Marion H. AUFIERO v. Rocco L. AUFIERO and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 709

123 N.E.2d 709

332 Mass. 149

Rocco L. AUFIERO and others v. Marion H. AUFIERO.

Marion H. AUFIERO v. Rocco L. AUFIERO and others.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 6, 1954.

Decided Jan. 10, 1955.

Alfred Sigel, Boston (David M. Brackman, Boston, with him), for Rocco L. Aufiero and others.

Wells G. Ruggles, Quincy (Samuel Pitchel, Quincy, with him), for Marion H. Aufiero.

Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

We have before us on appeals from decrees of the Probate Court for the county of Norfolk two petitions, both of which relate to the custody of Ethel Annette Aufiero, the minor daughter of Rocco L. Aufiero and his former wife Marion. The first petition is brought by Rocco and his father, Lorenzo Aufiero, and his mother, Antoinette Aufiero, all of the county of Bronx in the State of New York, against Marion Aufiero described as of Quincy in our county of Norfolk. This first petition has been called a petition for habeas corpus. The prayer, however, is for a citation and not for the writ, and so far as appears no writ was issued and no proceeding in which the custody of the child was drawn in question was pending when the petition was filed. We are of opinion therefore that this first petition must be treated as brought under G.L. (Ter.Ed.) c. 248, §§ 35-40, and not under c. 208, § 32. The second petition is brought by Marion against Rocco, Lorenzo, and Antoinette under G.L. (Ter.Ed.) c. 208, § 29, for temporary and permanent custody of the child. The trial judge dismissed the petition of Rocco, Lorenzo, and Antoinette and entered a decree for permanent custody in favor of Marion. We required a transcript of the evidence to be delivered to us in accordance with Rule 2(G) of the Rules for the Regulation of Practice before the Full Court, 1952, 328 Mass. 695, and we now treat the cases as before us on the evidence and the findings of the judge.

The underlying facts are these: Ethel was born in New York on March 15, 1946. At that time Rocco and Marion were both domiciled in New York and were living there with Rocco's parents, Lorenzo and Antoinette. All four Aufieros continued to live together in New York, and the child Ethel lived with them, until March 19, 1949. On that day Marion left her husband and returned to the home of her parents in Quincy. She left Ethel, then three years of age, with her grandparents in New York and thereafter saw her only occasionally. In our view of the case the reasons for the separation are not material. This state of affairs continued for about three years until March or April, 1952, when Rocco went to Nevada for the purpose of obtaining a divorce. Marion learned of this when she visited New York in April of that year. At that time Rocco's New York attorney persuaded Marion to sign a waiver of her right to contest the libel in Nevada and a power of attorney authorizing a Nevada attorney to appear for her in the Nevada proceedings, and he did so appear. On May 16, 1952, the Nevada court awarded a divorce to Rocco, with custody of Ethel to Rocco's parents, Lorenzo and Antoinette. As so often occurs where persons have obtained these Nevada divorces, Rocco had no intention of remaining there and returned to live in New York immediately after the divorce. He remarried in July of the same year. In that same month Marion brought in the Supreme Court of New York for the county of Bronx a petition for habeas corpus to secure possession of Ethel. On the day set for hearing, the case was continued until September 12, 1952, and a stipulation was signed by Marion and by Rocco's attorney and made part of the record of the proceedings in the New York court to the effect that Marion might take the child to Massachusetts for three weeks until September 12. When the three weeks expired she did not return the child but kept her in this Commonwealth in violation of the stipulation entered into in New York and contrary to the terms of the custody decree in Nevada. Shortly after coming into this Commonwealth with the child, Marion brought proceedings here to obtain custody, and Rocco, Lorenzo, and Antoinette brought their so called petition for habeas corpus here. Marion's petition in New York was dismissed, but whether on the merits or not the record does not enable us to say.

The judge found that the child Ethel was a resident of Norfolk County; that she had made a happy adjustment to her new home; and that her happiness and welfare would be best served by giving her care and custody to her mother.

Inasmuch as Marion appeared by attorney in the Nevada divorce proceedings, we are forced to hold that the divorce there obtained by Rocco is valid, even though in truth Rocco had no domicile in Nevada. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429; Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451. For present purposes only we assume that that part of the Nevada decree which gave custody of the child to Rocco's father and mother was also valid when rendered, since both parents of the child were represented there. Compare May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221. But see People of State of N. Y. ex rel. Halvey v. Halvey, 330 U.S. 610, 615-616, 67 S.Ct. 903, 91 L.Ed. 1133; Restatement: Conflict of Laws, § 146, comment c. There was some evidence that Marion may not have been fully informed as to the effect in Nevada of the papers she signed; but there is no finding that she was the victim of actual fraud, and we would not feel justified in making such a finding ourselves on the evidence.

In order to maintain her petition under G.L. (Ter.Ed.) c. 208, § 29, the wife must show that the child was either domiciled in or a resident of this Commonwealth when her petition was filed. Such is the language of that section itself, and the decisions upon it are to that effect. Glass v. Glass, 260 Mass. 562, 565, 157 N.E. 621, 53 A.L.R. 1157; Bergeron v. Bergeron, 287 Mass. 524, 527, 192 N.E. 86; Durfee v. Durfee, 293 Mass. 472, 478, 200 N.E. 395. It is plain that the child had no domicile in this Commonwealth. When her mother brought her here the child and her father and...