Conley v. Conley

• Decision Date: 05 July 1949
• Citation: 324 Mass. 530,87 N.E.2d 153
• Parties: CONLEY v. CONLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 530

87 N.E.2d 153

CONLEY

v.CONLEY.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 8, 1949.

Decided July 5, 1949.

Appeal from Probate Court Plymouth County; H. K. Stone, Judge.

Libel for divorce by Lucille A. Conley against Louis B. Conley. From so much of the decree as granted custody of one of children of parties to libellant, libellee appears specially and appeals.

Affirmed.

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

L. H. Miller, Brockton (D. Silverstein, Brockton, with him), for libellant-appellee.

G. L. Wainwright, Brockton, for libellee-appellant.

QUA, Chief Justice.

In this libel for divorce for cruel and abusive treatment, filed in the Probate Court for the county of Plymouth, a decree nisi was granted on July 12, 1948, including an order that the libellant have custody of the minor children of the parties, Lynette C. Conley, born March 11, 1945, and David A. Conley, born September 16, 1947, and that the libellee make payments for their support. The libellee appears specially and appeals from the decree in so far as it affects the custody and support of the child Lynette.

The facts appear from an ‘agreed statement of facts' in the nature of a case stated, from which further inferences of fact may be drawn. We summarize the facts agreed so far as necessary for the purposes of this decision. On February 12, 1947, while the wife, the husband, and Lynette were all living and domiciled in Brockton in the county of Plymouth, the wife filed a separate support petition against the husband in the Probate Court for that county. The husband appeared by counsel. After hearing, the court made an order by which the temporary custody of Lynette was given to the wife, and the husband was ordered to pay $10 weekly for her support. The husband complied with this order for a few weeks, after which he ceased to make payments. The wife continued to live and have her domicil in Brockton at the home of her mother and ‘exercised the custody’ of Lynette there. The husband lived apart from the wife and Lynette. On June 26, 1947, while the wife was pregnant with the second child, David, and while she had custody of Lynette under the order of the court, the husbandwent to the home of the wife's mother, ‘inflicted a brutal beating to his wife and her mother’ sufficient to endanger the wife's life and health, and ‘forcibly and in spite of the efforts of his wife and her mother, succeeded in tearing the child away from them.’ He took the child out of the Commonwealth, and she has not been in the Commonwealth since that day. The wife did not know the whereabouts of the husband and the child. At the hearing on this libel for divorce on July 12, 1948, counsel for the husband informed the judge that Lynette was in Amarillo, Texas, with her father. In the meantime counsel for the husband had withdrawn his appearance in the separate support proceedings,¹ and, after hearing, at which the husband, whose whereabouts were unknown, was not represented, a decree had been entered therein in favor of the wife, giving her custody of both children, the child David having by that time been born, and ordering the husband to make payments for the support of his wife and children. The present libel for divorce was brought January 13, 1948. Service upon the husband was ‘duly made by publication.’ At the hearing on the present libel counsel for the husband ‘conceded’ the jurisdiction of the Probate Court for the county of Plymouth ‘over the parties and over their marital status.’ He also admitted that the facts warranted the granting of a decree of divorce. ‘All of the evidence showed that the libellant was a proper person to exercise custody of the minor children.’ To all the foregoing facts the husband-now libellee-has agreed in this present ppoceeding.

The libellee's sole contention is that the court had no authority to make any order for the custody of Lynette for the reason that she had been out of the Commonwealth since he abducted her on June 26, 1947. We cannot accept this contention.

Mere physical presence of a child within its borders confers upon a State some jurisdiction with respect to his custody. Woodworth v. Spring, 4 Allen 321;Martin v. Gardner, 240 Mass. 350, 354, 134 N.E. 380;Schmidt v. Schmidt, 280 Mass. 216, 218-219, 182 N.E. 374;Finlay v. Finlay, 240 N.Y. 429, 431, 148 N.E. 624, 40 A.L.R. 937;New York v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133. See Durfee v. Durfee, 293 Mass. 472, 478-479, 200 N.E. 395. But it would be difficult to formulate any satisfactory reason why mere physical absence should preclude a decree for custody of a child whose domicil remains within the jurisdiction, there being no question of a conflicting decree in the State to which the child has been taken. We recently examined this subject at length in Heard v. Heard, 323 Mass. 357, 82 N.E.2d 219. At page 374 of 323 Mass., at page 230 of 82 N.E.2d, we said, ‘By virtue of the fact that the child here concerned is an inhabitant of this Commonwealth, that is, has his legal domicil here, that of his father, we conclude that as strict matter of law notwithstanding that the child was not within our borders when the present proceeding was begun and determined in the Probate Court, that court had jurisdiction thereof.’ See also 323 Mass. at page 370, 82 N.E.2d 219. And see Blackinton v. Blackinton, 141 Mass. 432, 5 N.E. 830,55 Am.Rep. 484;Glass v. Glass, 260 Mass. 562, 157 N.E. 621, 53 A.L.R. 1157;Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518;Gallup v. Gallup, 271 Mass. 252, 171 N.E. 464. This position is further supported by Restatement: Conflict of Laws, §§ 117, 144, 145, 146, 148; Minick v. Minick, 111 Fla. 469, 487-491, 149 So. 483;White v. White, 77 N.H. 26, 86 A. 353, and Motichka v. Rollands, 144 Wash. 565, 258 P. 333. We cannot follow De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82, 53 Am.St.Rep. 165, upon which the husband relies. The majority opinion in that case apparently proceeded upon the theory that a party, even though domiciled in the State, was not bound by substituted service while outside of it. But the contrary is now settled by Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357.

The domicil of the child Lynette was at all material times and still is in this Commonwealth. The events in the case start with the domicil of the entire family at Brockton in the county of Plymouth. A domicil once established is presumed to continue until a new domicil is shown to have been substituted. Sullivan v. Ashfield, 227 Mass. 24, 26, 116 N.E. 565;Connolly v. Phipps, 283 Mass. 584, 588, 186 N.E. 646;Commonwealth v. Davis, 284 Mass. 41, 49, 187 N.E. 33. No facts appear sufficient to show any...