Chittick v. Chittick

• Decision Date: 28 April 1955
• Citation: 332 Mass. 554,126 N.E.2d 495
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Dorothy B. CHITTICK v. C. Yardley CHITTICK.

Page 495

126 N.E.2d 495

332 Mass. 554

Dorothy B. CHITTICK v.C. Yardley CHITTICK.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 7, 1954.

Decided April 28, 1955.

David H. Stuart, Cambridge, for petitioner.

Frank B. Wallis, Boston (William J. Pechilis, Boston, with him), for respondent.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

QUA, Chief Justice.

This is a petition for separate support brought under G.L. (Ter.Ed.)c. 209, § 32.¹The petitioner claims, to be the wife of the respondent.The respondent insists that she is not his wife because on March 18, 1952, she was awarded a decree of divorce against him by the District Court of the Virgin Islands, Division of St. Thomas and St. John at Charlotte Amalie, for 'incompatibility of temperament.'The decree contained provisions for the petitioner's support in accordance with an elaborate agreement in the nature of a property settlement which had been entered into with the aid of trustees for the respective parties on October 25, 1951.The petitioner cannot maintain this proceeding if she is not now the wife of the respondent.Rosa v. Rosa, 296 Mass. 271, 272, 5 N.E.2d 417;Welker v. Welker, 325 Mass. 738, 743, 92 N.E.2d 373.The issue in the case is whether this Virgin Islands divorce is valid.

The judge of probate ruled that the divorce was void because neither of the parties had acquired a domicil in the Virgin Islands and because the divorce was the result of 'fraud or collusion' between them.He entered a decree for the support of the petitioner.The respondent appeals.The judge made a report of material facts, and the evidence is reported.

Certified copies of proceedings in the District Court at Charlotte Amalie show that the present petitioner swore to her complaint there on March 11, 1952; that she appeared in person and by her attorneys; that the present respondent filed his 'verified Notice of Appearance, Waiver and Consent and verified Answer' and was represented by his attorneys, who 'filed their verified Retainer and Power of Attorney'; that the matter was 'assigned to the District Court Commissioner to take the evidence and report his findings and conclusions to the Court, in accordance with statute'; that 'after hearing all of the evidence adduced on behalf of the plaintiff and after hearing the plaintiff testify under oath' the commissioner found that she had been a bona fide resident and inhabitant of the district for more than six weeks prior to the commencement of the action, and made other findings as to the existence of a state of incompatibility of temperament between the parties and in relation to the agreement between them of October 25, 1951, from which he quoted extensively; and that the court having reviewed the evidence, findings, and conclusions of the commissioner approved them and granted a divorce absolute with the provisions for support to which reference has already been made.

At the time of the Virgin Islands decree the applicable statute appears to have been known as 'BillNo. 14' of the Eighth Legislative Assembly.Section 9 of this statute required that the 'plaintiff' in an action for the dissolution of a marriage must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto.An amendment to this section in 1953 which was the subject of litigation in Alton v. Alton, 3 Cir., 207 F.2d 667, and in Granville-Smith v. Granville-Smith, 75 S.Ct. 553, had not yet been enacted.'Inhabitant' in § 9 of this statute means domiciliary.Burch v. Burch, 3 Cir., 195 F.2d 799, 804.

The evidence in the Probate Court here showed, and the judge found, that previous to their separation in July, 1951, the parties had been living in Newton in our county of Middlesex; that the petitioner arrived in the Virgin Islands on January 28, 1952, stayed at different hotels, engaged in no business or occupation, filed her complaint immediately upon the expiration of the six weeks, and left the day after the decree.She did not testify that she intended to make the Virgin Islands her place of residence.There is no suggestion anywhere in the case that the respondent was ever in the Virgin Islands, if that is material.There is some evidence that he was not domiciled there.If the judge of probate was free to find, as he did, that neither of the parties had or acquired a domicil in the Virgin Islands the finding was supported by the evidence before him and would be sustained by us.

But the judge was not free to find that the petitioner, who was the 'plaintiff' in the Virgin Islands Proceeding, had not acquired a domicil there.The District Court had jurisdiction over divorce.U.S.C.(1952 ed.)Title 48, § 1406(4)[48 U.S.C.A. § 1406(4)].BillNo. 14.Alton v. Alton, 3 Cir., 207 F.2d 667, 669.Its records and judicial proceedings are entitled to the same full faith and credit as are those of the court of a State, U.S.C. (1952 ed.)Title 28, § 1738.Embry v. Palmer, 107 U.S. 3, 9-10, 2 S.Ct. 25, 27 L.Ed. 346;Atchison, Topeka & Santa Fe Railway Co. v. Sowers, 213 U.S. 55, 64-65, 29 S.Ct. 397, 53 L.Ed. 695;Alaska Packers Association v. Industrial Accident Commission of California, 294 U.S. 532, 545-546, 55 S.Ct. 518, 79 L.Ed. 1044;Garvin v. Garvin, 302 N.Y. 96, 103, 96 N.E.2d 721.The Virgin Islands record recites that the present respondent, 'defendant' in the Virgin Islands, appeared and answered and was represented by counsel in the proceedings there.This recital was at least prima facie evidence of the facts.Makorios v. H. V. Greene Co., Inc., 256 Mass. 598, 153 N.E. 11;Portland Maine Publishing Co. v. Eastern Tractors Co., Inc., 289 Mass. 13, 193 N.E. 888.See alsoRice v. Rice, 336 U.S. 674, 675, 69 S.Ct. 751, 93 L.Ed. 957;Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 96 L.Ed. 146.The present record reveals no evidence to the contrary.A finding by the judge of probate that the respondent's Virgin Islands counsel was 'unknown to him,' if material, is not supported by any evidence in the transcript and cannot stand.A further finding that 'There was no hearing held by the court' is likewise without support in the evidence and is without significance in the face of the recitals of the decree as to the matter 'having come on to be heard' and as to the 'defendant' being represented by his attorney.It is plain from the Virgin Islands record, not contradicted by any evidence before the judge of probate, that the present respondent appeared through counsel in the Virgin Islands proceeding and could have been fully heard there.SeeRoyal v. Royal, 324 Mass. 613, 617-618, 87 N.E.2d 850;Aufiero v. Aufiero, 332 Mass. ----, 123 N.E.2d 709.And of course the present petitioner was herself the 'plaintiff' there.We are therefore compelled to hold that the finding of the District Court that the 'plaintiff' was domiciled in the Virgin Islands is binding upon both parties, and that the issue of domicil could not be tried again before the Probate Court here.This is the inevitable consequence of the decisions of the Supreme Court of the United States in Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, andCoe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451.See further Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552;Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146.The doctrine of the Sherrer and Coe caseswe understand to be that constitutional requirements of full faith and credit bar a party to divorce proceedings from collaterally attacking the decree on jurisdictional grounds in the courts of a sister State, if the has participated in the divorce proceedings and has had full opportunity to contest the jurisdictional issues, and if the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.²'In other words, no matter what may have been the actual fact as to domicil, appearance and participation of both parties in such circumstances preclude further inquiry elsewhere, at least in a case between them.'Rubinstein v. Rubinstein, 324 Mass. 340, 342, 86 N.E.2d 654, 655.And it appears that the Virgin Islands must now be accepted as fully accredited to engage in the business of interfering with domestic relations in all the other jurisdictions throughout this great country.

We are unable to perceive that the petitioner is helped by the further finding that the Virgin Islands decree 'was the result of fraud between the parties.'In so far as this may refer to fraud or collusion, in persuading the...