Cohen v. Cohen

• Court: Supreme Judicial Court of Massachusetts
• Citation: Cohen v. Cohen, 319 Mass. 31, 64 N.E.2d 689 (Mass. 1946)
• Decision Date: 07 January 1946
• Parties: HARRY L. COHEN v. FLORENCE COHEN.

319 Mass. 31

64 N.E.2d 689

HARRY L. COHEN v. FLORENCE COHEN.

Supreme Judicial Court of Massachusetts, Hampden.

January 7, 1946

November 27, 1945.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Marriage and Divorce, Jurisdiction, Foreign divorce, Separate maintenance. Jurisdiction, Divorce proceedings. Domicil. Estoppel. Public Policy. Ne Exeat, Writ of. Bail. A decree for separate maintenance under G. L. (Ter. Ed.) c. 209, Section

32, as amended cannot provide for support of the wife after the termination of the marriage relation.

A decree of divorce, procured by the husband in Nevada while he and his wife were domiciled in this Commonwealth, either for a cause occurring here while the parties resided here or for a cause which would not authorize a divorce by the laws of this Commonwealth, was invalid under

G. L. (Ter.

Ed.) c. 208 Section 39, and ineffectual as a bar to enforcement of a decree for separate maintenance under c. 209, Section

32, although the divorce was sought by the husband after residing in Nevada for more than the six weeks required there for obtaining a decree for divorce, "which fact was not contested by the wife," the wife appeared in the Nevada proceeding and filed an answer and cross-complaint, and the Nevada decree recited that evidence was introduced "by and on behalf of the respective parties."

A Nevada court had no jurisdiction to grant a divorce where neither of the parties had a domicil in that State, although the party seeking the divorce had resided there for the six weeks' period required by the

Nevada statute for the purpose of decreeing a divorce and in the Nevada proceeding the other party appeared, filed an answer and cross-complaint, and did not contest the fact of such residence, and the

Nevada decree recited that evidence was introduced "by and on behalf of the respective parties."

At least in the absence of genuine litigation and determination in a court of another State of the jurisdictional facts underlying a judgment of divorce rendered by that court, such facts may be inquired into by the

Massachusetts courts.

A husband, who went from Massachusetts, where he and his wife had their matrimonial domicil, to Nevada to obtain a divorce, not intending to reside there permanently but intending to return to Massachusetts upon obtaining the divorce, and who did return here upon obtaining it, did not acquire a domicil in Nevada sufficient to give the Nevada court jurisdiction to grant the divorce, although he resided there for the six weeks' period required by the Nevada statute for the purpose of decreeing a divorce.

A wife, by appearing and filing an answer and cross-complaint in a divorce proceeding instituted by her husband in Nevada, and not contesting the fact of his residence in Nevada for the six weeks' period required by the Nevada statute for procuring a decree of divorce, was not precluded from contesting in a Massachusetts court the validity of a divorce granted to the husband in the Nevada proceeding, where such divorce was obtained by him in violation of G. L. (Ter. Ed.) c. 208, Section 39. Discussion by WILKINS, J., of the writ of ne exeat.

A writ of ne exeat was properly issued by a Probate Court against a husband where, at a time when he was in arrears in payments previously decreed for the separate maintenance of his wife, he intended to leave the

Commonwealth; but the writ should have been discharged upon his giving sufficient bail.

Bail, posted by a husband in a Probate Court upon the issuance against him of a writ of ne exeat upon the ground that he intended to leave the

Commonwealth at a time when he was in arrears in payments previously decreed for the separate maintenance of his wife, should not later be ordered returned to him unless it appeared that he had paid the arrears due at the time of the issuance of the writ.

PETITION, filed in the Probate Court for the county of Hampden on March 30, 1943.

The case was heard by Denison, J. In this court the case was submitted on briefs.

G. J. Callahan, for the petitioner. M. J. Donovan, for the respondent.

WILKINS, J. This is a petition for vacation of a decree of separate support and of a decree whereunder a writ of ne exeat issued. From a decree dismissing the petition, the petitioner appealed.

The facts appear from a "statement of agreed facts" which meets the requirements of a case stated. G. L. (Ter. Ed.) c. 231, Section 126. On August 30, 1923, the parties, both of Springfield, were married there, and thereafter lived together in that city. On April 23, 1930, the wife filed a petition for separate support in the Probate Court for Hampden County, and on June 16, 1930, a decree was entered which declared that she was living apart from her husband for justifiable cause, awarded her custody of a minor daughter, and ordered the husband to pay for their support the sum of $150 and a further weekly sum of $20. In the summer of 1932 the husband went to Nevada to obtain a divorce either for a cause occurring in this Commonwealth while the parties resided here or for a cause which would not authorize a divorce by the laws of this Commonwealth. He never intended to reside permanently in Nevada, but intended to return to this Commonwealth as soon as he should obtain a divorce in Nevada. He did so return after he had obtained on November 3, 1932, a judgment and decree of absolute divorce in the First Judicial District Court of the State of Nevada in and for the County of Ormsby, which also ordered him to pay the wife $30 monthly for the support, maintenance, and education of the minor child, "the court reserving jurisdiction over the support, maintenance and education of said minor child." The husband resided in Nevada for more than six weeks immediately preceding the filing of his petition for divorce, "which fact was not contested" by the wife, who filed an answer and a cross-complaint, "appearing by deposition and by her attorneys." The divorce decree states that "witnesses . . . appeared by depositions and evidence [was] introduced by and on behalf of the respective parties." The Nevada law required a residence in that State "of only six weeks" for the purpose of decreeing a divorce.

On January 13, 1933, during "a hearing for contempt" for failure to comply with the decree of June 16, 1930, the wife filed in the Probate Court for Hampden County a petition for a writ of ne exeat. The petition was allowed on the same day, it appearing that there had not been compliance with that part of the decree of June 16, 1930, requiring weekly payments, and that the husband intended to absent himself permanently from the Commonwealth. In accordance with a court order the husband posted $2,000 in cash with the register of probate as "bail and security" that he "will not go or attempt to go into parts beyond the Commonwealth without the leave of said court." On October 17, 1935, the decree of June 16, 1930, was modified by increasing the weekly payments to $30. Since January 13, 1933, the husband has continuously resided and been domiciled in this Commonwealth at either Springfield or Pittsfield, and "has never absented himself from this Commonwealth except for vacation and business trips, the duration of which never exceeded the time required for a so called weekend trip."

1. A decree for separate support under our statute cannot provide for the support of the wife after the termination of the marriage relation. Rosa v. Rosa, 296 Mass. 271 , 272, and cases cited. See G. L. (Ter. Ed.) c. 209, Section 32, as amended. We are thus confronted with the question of the validity of the Nevada divorce. Esenwein v. Commonwealth, 325 U.S. 279, 280. In general, it is well established that jurisdiction to grant a divorce must be based upon the domicil of at least one of the parties, and that the jurisdiction of a State which has undertaken to grant a divorce may be made the subject of inquiry elsewhere. Andrews v. Andrews, 176 Mass. 92, 93; S. C. 188 U.S. 14, 40. Bowditch v. Bowditch, 314 Mass. 410 , 415. Coe v. Coe, 316 Mass. 423 , 426. Williams v. North Carolina, 325 U.S. 226, 229. Am. Law Inst. Restatement: Conflict of Laws, Section 111. Beale, Conflict of Laws, Sections 111.1, 111.2. It is "clear that the provision of the Nevada statute that a plaintiff in this type of case must `reside' in the State for the required period requires him to have a domicil, as distinguished from a mere residence, in the State." Williams v. North Carolina, 317 U.S. 287, 298. Likewise it is settled that the mere recital in the proceedings of the facts necessary to show jurisdiction may be contradicted. Sewall v. Sewall, 122 Mass. 156 , 161. Thompson v. Whitman, 18 Wall. 457, 468. Bell v. Bell, 181 U.S. 175, 178. The filing of an appearance by the appellee does not avail to cure jurisdictional defect. Andrews v. Andrews, 176 Mass. 92 , 94-96; S. C. 188 U.S. 14, 40-41. Langewald v. Langewald, 234 Mass. 269 , 270-271. Chicago Life Ins. Co. v. Cherry, 244 U.S. 25, 29.

Here it is patent that neither husband nor wife was domiciled in Nevada. It is also clear that there was a violation of G. L. (Ter. Ed.) c 208, Section 39. ^[1] All this the husband frankly concedes may be properly determined on the facts. His contention, however, is that the Nevada decree is binding upon the wife because she appeared, and filed an answer and a cross-complaint, and because "witnesses . . . appeared by depositions and evidence [was] introduced by and on behalf of the respective parties." He relies upon Davis v. Davis, 305 U.S. 32, a case which we have interpreted as resting on the basis that the jurisdictional facts were actually litigated and determined to exist in the court granting the divorce. Bowditch v. Bowditch, 314 Mass. 410...