Blackinton v. Blackinton
| Decision Date | 01 April 1886 |
| Citation | 141 Mass. 432,5 N.E. 830 |
| Parties | BLACKINTON v. BLACKINTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Appeal from the probate court, which issued a decree in favor of the petitioner. Hearing in the supreme court before FIELD, J., who found the following facts:
The respondent married the petitioner in Massachusetts on October 7, 1868, and both were at the time citizens of Massachusetts and thereafter they lived in Attleborough, in said state until December, 1877, when he left her without cause, and has since resided in New York city, in the state of New York, and is an inhabitant and citizen of that state; that there has been born of said marriage one child, who is now 11 years of age; that said petitioner has always resided in said Attleborough since her marriage with the respondent, and now resides there, in a house which he purchased, and the title of which he procured to be conveyed to her, and in which they both lived together until he went to New York; that the defendant is a member of a firm carrying on a manufacturing business in said Attleborough, but whose principal place of business is in New York, and is the general agent of the firm in said New York city. Notice of the petition was served on the respondent in the city of New York, and the respondent in the probate court filed a plea in abatement, alleging the fact of such service, and that he was a citizen of New York and that the probate court had no jurisdiction. After a hearing the probate court entered a decree for the petitioner, and the respondent appealed. The appellant did not desire to be heard upon the reasonableness of the amount decreed by the probate court, if that court had jurisdiction over him to make the decree.
The single judge affirmed the decree of the probate court, and remitted the case to this court for further proceedings.
N.B. Bryant and C.W. Bartlett, for respondent.
G.W. McConnell, for petitioner.
If the petitioner were proceeding for divorce, there is no doubt that the court would possess and exercise jurisdiction notwithstanding the husband's change of domicile. Pub.St c. 146, §§ 1, 5; Harteau v. Harteau, 14 Pick. 181, 185; Brett v. Brett, 5 Metc. 233, 235; Shaw v. Shaw, 98 Mass. 158; Cheever v. Wilson, 9 Wall. 108, 124. See Niboyet v. Niboyet, 4 Prob.Div. 1. The present proceeding contemplates a continuance of the marriage status instead of its dissolution. But the ground on which it proceeds is a breach of the duties incident to that status,--in this case, desertion, that is, a separation of home and interests without the petitioner's fault. And the same considerations which are stated in Harteau v. Harteau, ubi supra, for declining to treat the domicile of the wife as following that of her husband when she seeks a divorce equally apply when she seeks protection and separate maintenance under Pub.St. c. 147, § 33. The statute is general in its terms, and we know of no principle which would warrant our confining its operation to cases where the deserting husband retains his domicile within the state. Assuming that the probate court has jurisdiction of the subject-matter in such a case, we are of opinion that its right to proceed is not confined to cases where personal service can be made upon the respondents within the state. The jurisdiction in it is not confined to such cases. Burlen v. Shannon, 115 Mass. 438. And whatever may be thought of decisions like People v. Baker, 76 N.Y. 78, and Doughty v. Doughty, 28 N.J.Eq. 581, we do not understand any one to deny that divorces granted against absent defendants, after such notice as the laws of the state prescribe, are valid, within the...
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