Chapman v. Chapman

• Decision Date: 22 June 1916
• Citation: 224 Mass. 427,113 N.E. 359
• Parties: CHAPMAN v. CHAPMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 427

113 N.E. 359

CHAPMAN

v.CHAPMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1916.

Report from Supreme Judicial Court, Suffolk County.

Petition by Lizzie M. Chapman for a widow's allowance against Florence Elliot Chapman. On report from the Supreme Judicial Court. Decree of the probate court reversed.

Samuel Vaughan, John Noble, and Loring, Collidge & Noble, all of Boston, for appellant.

Arthur W. De Goosh, of Boston, for appellee.

RUGG, C. J.

The officer of court, appointed in the case at bar to ‘hear the parties and their evidence, to find the facts and report the same to the court,’ was termed an auditor. The case is a probate appeal. Under R. L. c. 162, § 15, the procedure in probate appeals is according to equity. Cases may be found where in equity an officer called an auditor has been appointed. See, for example, Quimby v. Cook, 10 Allen, 32. It was said also in Whitwell v. Willard, 1 Metc. 216, at page 218, ‘The term, ‘auditor,’ designates an officer, either at law or in equity, assigned to state the items of debt and credit between parties, and exhibit the balance,' and this remark was quoted in Fisk v. Gray, 100 Mass. 191. But it was held in Falmouth v. Falmouth Water Co., 180 Mass. 325, 328, 62 N. E. 255, 256, that, notwithstanding Whitwell v. Willard:

‘In Holmes v. Turners Falls Co., 150 Mass. 535 [23 N. E. 305,6 L. R. A. 283]; it was intimated by this court that under existing statutes masters are to be appointed in suits in equity where auditors are appointed in actions at law. In our opinion that intimation is correct, and we shall treat the report made in this case as a master's report.’

To the same effect in substance, are In re Norwood, Petr., 183 Mass. 147, 151, 66 N. E. 637, and Gray v. Chase, 184 Mass. 444, 448, 68 N. E. 676. See Stockbridge v. Mixer, 215 Mass. 415, 419, 102 N. E. 646. The decesive factor is not a designation given to an appointee of the court, but the nature of the duties imposed on him and the character of the work performed by him. The reference in the case at bar appropriately describes the duties of a master. Warfield v. Adams, 215 Mass. 506, 519, 102 N. E. 706;Bradley v. Borden, 112 N. E. 416. It would have been more accurate to have described him as a master. His report will be treated as the report of a master.

The question presented is whether the appellant or the appellee is the widow of Hiram T. Chapman, deceased, late of Revere in this commonwealth. The salient facts are these: Hiram, then domiciled in this commonwealth, was legally married to Florence, the appellee, in Boston in July, 1894. They lived together as husband and wife in Boston until the following October, when they went to Nebraska to visit the mother of Florence, where they remained until January, 1895, during which time difficulties arose between them. In January, 1895, Hiram went to Fargo, North Dakota, and exactly ninety days from the date of his arrival filed in a court of that state a complaint for divorce on the grounds of extreme cruelty. Florence duly appeared and answered, admitting Hiram's residence in North Dakota and her marriage with him. In September, 1895, a divorce was entered on this petition. In December, 1895, Hiram returned to Massachusetts. A year later he married in New York, Lizzie, the appellant, then domiciled in Massachusetts. After living at various beaches and spending a winter in Washington and another in Virginia, and the third in Boston, they established a home in Revere, where they have lived ever since until his death in August, 1914. In November, 1902, Florence brought a petition in equity against Hiram in Nebraska, alleging desertion and claiming separate support. Hiram appeared and answered, setting up the North Dakota divorce. Florence replied, alleging that neither she nor Hiram was a resident of North Dakota at that time, that the North Dakota law required as a condition precedent to jurisdiction in an action for divorce that the petitioner should have been a resident in good faith and domiciled in North Dakota for at least ninety days before bringing his petition,and that as this condition was not complied with the North Dakota decree was null and void. After a contested hearing, the Nebraska court found that the North Dakota divorce was illegal, because neither party was domiciled in that state, and both knew that Hiram was there for the purpose of securing a divorce, and that they perpetrated a fraud upon the North Dakota court. That decision was reversed because of error in the admission of evidence and in the character of the judgment awarded. Chapman v. Chapman, 74 Neb. 388, 104 N. W. 880. In March, 1907, Florence moved to dismiss this proceeding ‘with prejudice,’ and thereupon the order was made:

‘This cause coming on on the motion of the plaintiff to dismiss this case with prejudice, it is by the court ordered that this case be and same hereby is dismissed.’

During the pendency of these proceedings in Nebraska Hiram brought a libel for divorce against Florence in the superior court for this commonwealth. Personal service was made on her in Nebraska and she appeared and answered. The case was in order for trial in February, 1907, but no trial was had and no proceedings have been taken since. In 1910 Florence brought a petition against Hiram for divorce in the same court in Nebraska where in 1902 she had brought the previous proceeding for separate support. Hiram appeared and set up in defense the North Dakota divorce. In November of that year the Nebraska court entered a decree holding that the North Dakota court had full jurisdiction to grant the divorce, that it was still in full force and effect, and that the petition should be dismissed. Nine days later she went through the marriage ceremony with one Hough. They have cohabited as husband and wife since then in South Dakota and she has been known by the name of Hough.

It has been expressly found by the master that Hiram did not go to North Dakota to obtain a divorce for a cause which occurred in Massachusetts while he and Florence resided here. The cause alleged in the North Dakota libel was extreme cruelty, which is established as a cause for divorce by R. L. c. 152, § 1. The master was unable to find that the evidence upon which that divorce was granted would not have warranted the granting of a divorce by the courts of this commonwealth. An inevitable consequence of this finding is that the North Dakota divorce is not such a divorce as R. L. c. 152, § 35, provides ‘shall be of no force or effect in this commonwealth.'¹

The earlier part of that section declares that the divorces in other states and countries by courts ‘having jurisdiction of the cause and of both the parties, shall be valid and effectual in this commonwealth.’ This is simply assertive of the validity of certain foreign divorces. The denial of validity of other foreign divorces which follows is not precisely correlative or antithetical. It does not extend to all such divorces by courts not ‘having jurisdiction of the cause and of both parties,’ but to the narrower field where a resident of this commonwealth resorts to a foreign court to obtain a divorce for a cause which occurred while both spouses resided here, or which is not recognized as a cause by our laws. Manifestly this negation is not so comprehensive as the positive declaration of the earlier part of the section.

On the present findings a case is presented where the parties, being residents of Massachusetts and not domiciled in the foreign state, go there for the purpose of procuring a divorce for a cause recognized as a cause by the law of this commonwealth, but which did not occur here during the period of their residence within the state. This is a state of facts not within the scope of the words of R. L. c. 152, § 35. The commonwealth has not intervened by legislation to declare a governing public policy, as it had in Andrews v. Andrews, 176 Mass. 92, 57 N. E. 333. The case, therefore, must be considered and decided on general principles concerning the marriage relation.

[5] The pivotal question in many perhaps in most cases would be whether the foreign court obtained ‘jurisdiction of the cause and of both the parties.’ If it did not, then it could not sever the marriage relation. This was the ground of decision in Andrews v. Andrews, 188 U. S. 32, 23 Sup. Ct. 237, 47 L. E. 366. The case at bar is different from Andrews v. Andrews, 176 Mass. 92, 57 N. E. 333, affirmed in 188 U. S. 32, 23 Sup. Ct. 237, 47 L. Ed. 366, in that there the cause of divorce set forth in the South Dakota record was one for which divorce could not be granted in Massachusetts. The state had intervened and declared all such divorces null and void in this commonwealth. Here the cause set forth in the North Dakota record is one for which divorce is allowed in this commonwealth. This is the converse of Andrews v. Andrews. Florence does not get ‘the benefit of’ the intervention of the commonwealth by legislation ‘irrespective of any merits of her own.’ 176 Mass. 96, 57 N. E. 333. She must stand on the strength of her own case, because, as has been pointed out, the legislative declaration of policy does not reach to these facts.

The master has found that the court of North Dakota had no jurisdiction of the parties and the cause. The subsidiary facts appear to warrant this finding. Dickinson v. Dickinson, 167 Mass. 474, 477, 45 N. E. 1091. The evidence is not all reported and this finding must be accepted as final. He also has found that Florence had acquired no domicile in Nebraska and that the decree of the court of that state entered in the 1910 proceeding for divorce instituted by her, she having no domicile there, was not within the jurisdiction of that court, Haddock v. Haddock, 201 U. S. 562, 571, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1, so as to render applicable to it the doctrine of res judicata within Hood v. Hood, 110 Mass. 463....