Blitzer v. Blitzer

• Decision Date: 10 May 1972
• Citation: 361 Mass. 780,282 N.E.2d 918
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Dorothy L. L. BLITZER v. Stanford D. BLITZER.

Page 918

282 N.E.2d 918

361 Mass. 780

Dorothy L. L. BLITZER v. Stanford D. BLITZER.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 8, 1972.

Decided May 10, 1972.

A. Theodore Welburn, Welleslly (Maurice E. McLoughlin, Jr., Boston, Mass., with him), for the libellee.

Harris A. Reynolds, Boston, for libellant.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON and HENNESSEY, JJ.

CUTTER, Justice.

Mrs. Blitzer (the wife) was granted a divorce from her husband by decree nisi in the Probate Court on February 11, 1971. The decree provided that the husband was to convey to the wife his interest in the marital home (the locus) in Newton and the husband's appeal is directed only to that part of the decree. The evidence is not reported. The case is before us on certain pleadings and a report of material facts, on the basis of which the facts are stated below.

Personal service was not made on the husband, a resident of Pennsylvania. He did not contest the libel on the merits but filed on December 1, 1970 a 'special appearance to object to (the) order of sale of real estate in lieu of alimony,' through a Massachusetts attorney. Service on the husband and been made only by publication and certified mail. An attachment of the locus was recorded in the registry of deeds on April 18, 1969, pursuant to an order of notice issued on April 10 on the wife's Massachusetts libel for divorce.

The parties separated in July, 1968. The husband then moved to Pennsylvania. Subsequently, in the District Court of Newton, an order was entered requiring the husband to pay to the wife $400 a month for her own support and for the support of two minor children. This was followed by 1969 proceedings in Pennsylvania under the Uniform Reciprocal Enforcement of Support Act (see, in Massachusetts, G.L. c. 273A; M_ _ v. W_ _, 352 Mass. 704, 227 N.E.2d 469). In the Pennsylvania court, both parties appeared with counsel. An order was entered that the husband pay to the wife $400 a month for the support of the wife and two children. ¹

The wife contributed $3,000 to the purchase of the locus, and $4,000 came from joint funds. The wife's parents have advanced $4,199.88 to support the wife and her children and $1,200 to pay mortgage arrearages. The wife has overdue household bills of $2,142.29. The equity in the real estate is 'approximately $26,000.' The husband has contributed a grand total of $1,926 between October 15, 1969, and either (a) December 1, 1970, the date of the hearing, or (b) June 23, 1971, the date of the report of material facts. ² The wife reasonably needs $773 a month for herself and her children. The judge found that the 'only practical way' of providing such support 'is by ordering the conveyance of the' locus to the wife.

1. The wife argues that the husband made a general appearance because he did not (a) specify adequately the purpose of his special appearance, or (b) state that he was a nonresident not subject to the jurisdiction of the Probate Court. The libel had alleged that the husband lived in Pennsylvania. We assume (without deciding) that, although the husband's special appearance could and should have been more specific (see Rule 2 of the Probate Courts (1959), third par.; and analogy of last par. of Rule 19 of the Superior Court (1954)), it was sufficient, in the circumstances, to enable him to appear to defend his interest in the locus without subjecting himself to a personal judgment. See Cheshire Natl. Bank v. Jaynes, 224 Mass. 14, 17--20, 112 N.E. 500; Gulda v. Second Natl. Bank, 323 Mass. 100, 104--105, 80 N.E.2d 12. See also Churchill v. Bigelow, 333 Mass. 196, 198, 129 N.E.2d 903; MADDEN V. MADDEN, MASS., 269 N.E.2D 89,^A cert. den. 404 U.S. 854, 92 S.Ct. 95, 30 L.Ed.2d 94; Minichiello v. Rosenberg, 410 F.2d 106, 111 (2d Cir.). Cf. Gilman v. Gilman, 327 Mass. 143, 146, 97 N.E.2d 404. On the assumption (that the husband's appearance was special) which we have made, there was no jurisdiction in the Probate Court to enter a personal decree against the husband requiring him to convey the locus to the wife. See the Gulda case, supra; Katz v. Katz, 330 Mass. 635, 639, 116 N.E.2d 273; Pennoyer v. Neff, 5 Otto 714, 95 U.S. 714, 723--724, 24 L.Ed. 565. The Probate Court, nevertheless, did have power, by a decree quasi in rem, to subject the husband's interest in Massachusetts real estate to a valid claim by the wife for alimony. The present decree, however, appears to be a decree in personam and should be revised (upon suitable amendment of the pleadings in the Probate Court) to operate only against (and to the extent of the value of) the husband's interest in the locus.

2. The husband contends that the report of material facts contains insufficient findings to support a decree in favor of the wife for a conveyance. He relies largely on Topor v. Topor, 287 Mass. 473, 475--477, 192 N.E. 52. The present findings establish the needs and circumstances of the wife and her children. The Pennsylvania court (in a contested hearing where both parties were represented by counsel) as recently as October 15, 1969, had determined that the husband should pay $400 a month as support for his wife and children. The probate judge could reasonably rely on that recent decree as showing that the husband was able to afford, and should be required to pay, at least that amount. See Klar v. Klar, 322 Mass. 59, 60, 76 N.E.2d 5. Cf. Hillery v. Hillery, 342 Mass. 371, 375, 173 N.E.2d 269. As the case, in any event, must be heard further in the Probate Court opportunity to establish with more accuracy the present circumstances and needs of the parties may be afforded if either party so requests.

3. The remaining question relates to the manner in which the Probate Court may enforce the wife's claim for alimony and support of her children by a decree quasi in rem. By virtue of the divorce, the estate by the entirety in the locus will have been terminated and the wife will own, as tenant in common with her former husband, a one-half interest. Bernatavicius v. Bernatavicius, 259 Mass. 486, 489--490, 156 N.E. 685. Childs v. Childs, 293 Mass. 67, 70--71, 199 N.E. 383. Cf. Finn v. Finn, 348 Mass. 443, 445--447, 204 N.E.2d 293. The husband's one-half interest in the equity (on the finding of the judge) will be worth $13,000. This may be applied, quasi in rem (see Churchill v. Bigelow, 333 Mass. 196, 198--200, 129 N.E.2d 903; Reed,...