Coe v. Coe
| Decision Date | 30 October 1946 |
| Citation | 320 Mass. 295,69 N.E.2d 793 |
| Parties | KATHARINE C. COE v. MARTIN VAN BUREN COE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
February 6, 7 1946.
Present: FIELD, C.
J., QUA, DOLAN WILKINS, & SPALDING, JJ.
Marriage and Divorce, Jurisdiction, Foreign divorce, Separate maintenance. Probate Court, Rehearing, Acting judge, Costs. Domicil. Estoppel. Jurisdiction, Divorce proceedings. Evidence Interrogatories, Presumptions and burden of proof. Words "Hearing."
A rescript of this court reversing decrees of a Probate Court and ordering the case "to stand for hearing" did not preclude a subsequent hearing by a judge other than the judge who had originally heard the case. A judge of probate who, upon being designated under G. L. (Ter. Ed.) c.
217, Section 8, as appearing in St. 1937, c. 408, Section 5, to act in the Probate Court of another county in the absence of the judge thereof, had heard counsel on various "preliminary matters" in a case without the presentation of evidence, properly heard the case on the merits at a continued hearing several months later, although the judge of the court was then available.
It was not plainly wrong to find that neither a husband nor his wife acquired a domicil in Nevada where each, being domiciled in
Massachusetts, went to Nevada for the purpose of securing a divorce there, remained there for a short time until the conclusion of divorce proceedings between them there and then returned to Massachusetts to live.
A Nevada court had no jurisdiction to grant a divorce where neither of the parties had a domicil in that State, although one of them had resided there for six weeks before the institution of the divorce proceedings and both were physically present and before the court there at the time of the granting of the divorce.
There was no such genuine litigation and determination of the jurisdictional fact of residence in a Nevada divorce proceeding as to preclude an inquiry into that fact in a subsequent proceeding in a
Massachusetts court, where in the Nevada proceeding one party collusively admitted allegations by the other as to his residence there for the required period. A woman seeking separate maintenance from her alleged husband in a
Massachusetts court was not precluded from relying on the invalidity of a divorce previously obtained by her from him in a Nevada court in violation of G. L. (Ter. Ed.) c. 208, Section 39.
A wife's petition for modification of a decree for separate maintenance was not barred by an agreement as to financial matters made by her with her husband in the course of a divorce proceeding in Nevada which had been instituted after the decree for separate maintenance and in which she was granted a divorce invalid in Massachusetts.
Deterioration of a wife's physical condition to a point where she was unable even to do housework, occurring after a decree for separate maintenance, would have been sufficient to support a modification of the decree ordering an increase of payments reasonably within the husband's means, but a decree of modification was reversed because it was based also on a plainly wrong finding as to the husband's financial worth.
A party introducing in evidence answers to interrogatories propounded by him to an adverse party is bound to the truth of facts stated in those answers if they are not contradicted by other evidence.
A decree ordering a husband to pay his wife a sum of money for her use in maintaining a petition for modification of a decree for separate maintenance and in defending a petition by him for revocation of the decree for separate maintenance was proper under G. L. (Ter. Ed.) c.
209, Section 33, as appearing in St. 1933, c. 360.
PETITIONS, filed in the Probate Court for the county of Worcester on May 22, 1943, August 30, 1943, and September 7, 1943, respectively, described in the opinion.
The hearing following the decision by this court reported in 316 Mass. 423, was by Stapleton, J.
S. Perman, (G.
H. Mason with him,) for the respondent.
Nunziato Fusaro, for the petitioner.
The marital controversies between Katharine C. Coe and Martin Van Buren Coe (hereinafter referred to as Mrs. Coe and Mr. Coe respectively) reach this court for the third time. In 313 Mass. 232 , we affirmed a decree of the Probate Court of Worcester County, dated March 25, 1942, awarding Mrs. Coe $35 a week for her separate support. On May 22, 1943, Mrs. Coe filed a petition for contempt against Mr. Coe for failure to comply with that decree, and on August 30, 1943, she filed a petition (amended October 21, 1943) for modification of that decree. To the petition for modification Mr. Coe filed a plea in bar based upon certain Nevada divorce proceedings. On September 7, 1943, he filed a petition to revoke the separate support decree. In 316 Mass. 423 , because Mrs. Coe had been denied the right to introduce evidence to show that the Nevada court did not have jurisdiction and that there had been a violation of G. L. (Ter. Ed.) c. 208, Section 39, we reversed decrees dismissing her petitions and a decree allowing Mr. Coe's petition to revoke, and the rescript ordered the cases
"to stand for hearing in conformity with the opinion." The rescript interpreted in the light of the opinion (E. Kronman, Inc. v. Bunn Bros. Inc. 265 Mass. 549 , 552) did not mean that only the judge who had heard the cases could conduct the hearing. The words "further hearing" were not used, as had been done in Woodworth v. Woodworth, 271 Mass. 398 , 400; see 273 Mass. 402, 406-407. Even those words, "unless expressly limited, ordinarily import a new trial of those matters as to which the new or further hearing is to be had." C. W. Hunt Co. v. Boston Elevated Railway, 217 Mass. 319 , 320-321.
After rescript the three petitions, together with a petition of Mrs. Coe for counsel fees and expenses, were heard by a judge of probate of Hampden County designated under G. L. (Ter. Ed.) c. 217, Section 8, as appearing in St. 1937, c. 408, Section 5. On May 21, 1945, decrees were entered dismissing the petition for contempt; modifying the decree of March 25, 1942, by ordering Mr. Coe to pay for the support of Mrs. Coe $5,000 forthwith and $100 weekly; requiring Mr. Coe to pay to Mrs. Coe $1,000 for her use in maintaining her petition for modification and in her defence in the matter of the petition for revocation; and dismissing the petition for revocation. On May 31, 1945, Mr. Coe appealed from the decree for modification, the decree for $1,000 "for counsel fees," and the decree dismissing the petition for revocation. The judge filed a report of the material facts found by him. G. L. (Ter. Ed.) c. 215, Section 11. The evidence is reported. Shattuck v. Wood Memorial Home, Inc. 319 Mass. 444 , 445-446. Rubinstein v. Rubinstein, 319 Mass. 568 , 569.
Coe that the judge of probate of Hampden County who entered the decrees was without power and authority to act in these cases. On July 7 1944, the first judge of probate of Worcester County (who was not the judge who theretofore had heard the cases) made the following designation under G. L. (Ter. Ed.) c. 217, Section 8, as appearing in St. 1937, c. 408, Section 5: "I request Honorable Thomas H. Stapleton, judge of probate, in and for the county of Hampden, to perform part of the judicial duties of this court by holding a simultaneous session of this court at the court house in Worcester, at times and places to be designated by said aforesaid judge of probate, by reason that neither of the judges of probate are available to hear said case." In view of later occurrences it is not clear what was meant by "said case." On July 10, 1944, there was a hearing, hereinafter referred to, concerning the present cases before the acting judge of probate previously designated. Although the request of July 7, 1944, had nothing to do with these cases, through error the certification of designation of the judge of probate of Hampden County as acting judge was entered under the docket number of these cases. This was later changed so that the designation was docketed with a new number under the name of the judge designated. On October 19, 1944, Mr. Coe filed a motion that the designation of the judge of probate of Hampden County to hear the cases be vacated. There were numerous grounds assigned for the motion, the chief of which was that the hearing should be before the judge of probate of Worcester County who had previously heard the cases. On January 4, 1945, the motion was denied by the first judge of probate of Worcester County, "it appearing that the certification referred to was entered on the docket in this case by mistake and inadvertence and has now been expunged." On January 18, 1945, the judge who had originally heard the cases assigned them for hearing before the judge of probate of Hampden County who had been designated as set forth above. On January 22, 1945, Mr. Coe filed a motion to revoke the assignment. On January 31, 1945, the judge who had originally heard the cases denied the motion by a decree which contained in substance the following findings: While Judge Wahlstrom, who had heard all previous matters, was "away on summer vacation and thus unavailable," the designation was made of Judge Stapleton, who sat on July 10, 1944, and heard and decided "four preliminary matters." At that hearing ...
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