Cassen v. Cassen

• Decision Date: 29 November 1943
• Citation: 315 Mass. 35,51 N.E.2d 976
• Parties: PAULINE M. E. CASSEN v. ERNEST J. CASSEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 35

51 N.E.2d 976

PAULINE M. E. CASSEN v. ERNEST J. CASSEN.

Supreme Judicial Court of Massachusetts, Barnstable.

November 29, 1943

November 2, 1943.

Present: FIELD, C.

J., LUMMUS, QUA COX, & RONAN, JJ.

Probate Court Jurisdiction. Residence. Minor, Guardian, Of minor. Parent and Child. Words, "Resident," "Unfit."

Under G. L. (Ter Ed.) c. 201, Section 1, the Probate Court for a county may appoint a guardian of a minor child residing in that county even though the child's domicil is in another State.

A finding that minor children domiciled in another State were "residents" of a county in Massachusetts within G. L. (Ter. Ed.) c. 201, Section 1, was warranted on evidence that, after the children and their mother with the father's consent had spent a summer in that county as had been their custom for some years, the father brought a divorce proceeding against the mother in the other State and declined to resume friendly relations with her, as a result of which in the autumn she with the children remained in that county in a house which she owned, the children went to school there and she expected to stay there for some time.

The parents of minor children resident with the mother in Massachusetts might properly be found to be "jointly . . . unfit" to have custody of them within G. L. (Ter. Ed.) c. 201, Section 5, and the mother properly might be found to be singly fit to have custody and to be awarded custody upon her appointment as their guardian by a Massachusetts

Probate Court, where the father lived in Florida, and without cause had brought a divorce proceeding against the mother there, and had refused to resume marital relations.

PETITION, filed in the Probate Court for the county of Barnstable on November 30, 1942.

The case was heard by Campbell, J., who made no formal findings. R. E. French, for the respondent.

H. W. Williams, for the petitioner, submitted a brief.

QUA, J. The petitioner was, and so far as appears still is, the wife of the respondent. The respondent appeals from a decree appointing the petitioner guardian of the two minor daughters of the parties, aged respectively about eleven years and about six years, and granting the petitioner custody of the wards. The petition alleges that the petitioner and the children are of Yarmouth in the county of Barnstable, and that the respondent is of Fort Myers, Florida. There is a prayer for custody. The evidence is reported.

The respondent contends that the court had no jurisdiction over the children. It is provided by G. L. (Ter. Ed.) c. 201, Section 1, that the Probate Court may appoint guardians of minors "who are inhabitants of or residents in the county . . . ." We assume that the domicil of the children was in Florida, where the petition, in effect, alleges the domicil of their father to be, but nevertheless, under the statute, the Probate Court had jurisdiction to appoint a guardian over them, if they were "residents" of Barnstable County. Martin v. Gardner, 240 Mass. 350 . Glass v. Glass, 260 Mass. 562, 565.

There was ample evidence to support a finding that, when the petition was filed, the children were residents of Barnstable County. A bare outline of this evidence will suffice. Ever since the marriage of the petitioner and the respondent in 1929 the family had been in the habit of spending their winters in Florida and their summers in Barnstable County. Apparently in general, they divided the year nearly evenly between the two places, although husband and wife did not always go and come together. Following the usual custom, the petitioner, with the consent of the respondent, came to Yarmouth with the children on June 2, 1942. Seemingly the respondent did not spend that summer in Yarmouth. He was arranging to lease a hotel in Florida. But he made a short visit to Yarmouth in July, when it could be found that the relations of the parties were amicable. In September the petitioner received a letter from the respondent conveying the information that he had brought a proceeding for divorce against her in Florida. It could be found that he repulsed her attempts to ascertain the reason for his bringing this proceeding and to resume friendly relations, and that, as a consequence of his attitude, she did not return to Florida for the winter of 1942-1943; that she has since resided in Yarmouth with the children in a house which she owns; and that for some time at least she expects to remain there. When this petition was filed the children had been living in Yarmouth about six months and were going to school there. The evidence did not require a finding that the children had been brought to this Commonwealth or kept here in bad faith for the purpose of procuring jurisdiction here or to avoid jurisdiction in Florida. On the question of residence the case is within the authority of Martin v. Gardner, 240 Mass. 350 . For the meaning of "residence" see further Marlborough v. Lynn, 275 Mass. 394 , 397, Jenkins v. North Shore Dye House, Inc. 277 Mass. 440 , 444, Cambridge v. West Springfield, 303 Mass. 63 , 67, Russell v. Holland, ...