Chiminiello v. Chiminiello

• Decision Date: 14 December 1979
• Citation: 8 Mass.App.Ct. 806,397 N.E.2d 1141
• Parties: Mary E. CHIMINIELLO v. Peter J. CHIMINIELLO (and a companion case).
• Court: Appeals Court of Massachusetts

Page 1141

397 N.E.2d 1141

8 Mass.App.Ct. 806

Mary E. CHIMINIELLO v. Peter J. CHIMINIELLO (and a companion case).

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 21, 1979.

Decided Dec. 14, 1979.

Nathaniel M. Sherman, Quincy, for plaintiff.

George G. Burke, Quincy, for defendant.

Before ARMSTRONG, ROSE and KASS, JJ.

KASS, Justice.

On August 14, 1973, Peter J. Chiminiello petitioned the Probate Court that partition be made of land located partly in Quincy and partly in Braintree which, he alleged, he owned together with Mary E. Chiminiello as tenants in common. Two months later, on October 17, 1973, Mary brought a contempt proceeding against Peter on the ground that he was delinquent in obligations to make separate support payments imposed by a separate support order originally entered December 21, 1945 (shortly after Mary and Peter first lived apart from each other), and last amended June 29, 1955.

The resolution of both proceedings turns on whether the Chiminiellos had been divorced in Reno, Nevada in 1959, fourteen years after they separated, and the Probate Court referred an inquiry into the circumstances of that divorce to a master.

The master's subsidiary findings, to which Mary did not serve written objections, Mass.R.Dom.Rel.P. 53(e)(2) (1975), were that: Peter went to Reno in July, 1959; intended to remain there indefinitely; established a residence and obtained employment in Reno; obtained a decree of divorce from Mary on October 9, 1959; remarried; and lived in Nevada for approximately six months thereafter (his entire sojourn in Nevada was nine months). Those findings were consistent with the master's further finding that Peter was domiciled in Nevada when he obtained a divorce from Mary in a Nevada court. The master also found that Mary had been served with notice of the Nevada proceeding, but did not appear.

These findings warranted a conclusion that the elements of jurisdiction had been established, and that the Nevada divorce was entitled to full faith and credit. Williams v. North Carolina, 317 U.S. 287, 299, 63 S.Ct. 207, 87 L.Ed. 279 (1942). Coe v. Coe, 334 U.S. 378, 383-384, 68 S.Ct. 1094, 92 L.Ed. 1451 (1948). Heard v. Heard, 323 Mass. 357, 364-365, 82 N.E.2d 219 (1948). Shain v. Shain, 324 Mass. 603, 607, 88 N.E.2d 143 (1949), cert. denied 338 U.S. 954, 70 S.Ct. 492, 94 L.Ed. 589 (1950). Compare Rubinstein v. Rubinstein, 319 Mass. 568, 569-575, 66 N.E.2d 793 (1946); Barnard v. Barnard, 331 Mass. 455, 120 N.E.2d 187 (1954). By reason of the divorce, the tenancy by the entirety held by Mary and Peter in the real estate in Quincy and Braintree (which had been their marital domicile until they separated) became a tenancy in common. Childs v. Childs, 293 Mass. 67, 71, 199 N.E. 383 (1935). The Nevada divorce also terminated Peter's obligation to make separate support payments since separate support "is dependent on the existence of the marriage relation." Rosa v. Rosa, 296 Mass. 271, 272, 5 N.E.2d 417, 418 (1936). Termination of the marriage relation "by a divorce decreed in another jurisdiction, valid and effectual in this Commonwealth, entitles the husband to be discharged from his liability for payments, under the decree for separate support, which had not become due at the time of the divorce." Id.

Although the probate judge purported to enter a judgment in the partition case, that proceeding did not result in any order to commissioners pursuant to G.L. c. 241, § 31. Rather the judgment simply concluded that Peter was to "have the right to proceed with his petition for partition." In that form the "judgment" was no more than an interlocutory order. Although we have...