Creeley v. Creeley
| Decision Date | 04 March 1927 |
| Citation | 258 Mass. 460,155 N.E. 424 |
| Parties | CREELEY v. CREELEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middl sex County; Marcus Morton, Judge.
Petition for contempt by M. Evelyn Creeley, libelant, against Oscar S. Creeley, libelee, for alleged violation of divorce decree as respects maintenance of children. On libelant's exceptions after decree dismissing petition. Exceptions overruled.
J. L. Sheehan, of Boston, for libelant.
James H. Vahey and Philip Mansfield, both of Boston, for libelee.
This is a petition for contempt brought by the libelant, alleging that the libelee has refused and neglected to provide for his children in violation of a decree entered in the divorce proceedings ordering that ‘the care and custody of Philip L. Creeley and Thomas V. Creeley, the minor children of the parties hereto, be and hereby is given to the libelee, Oscar S. Creeley, but the libelant shall have the right to visit said minor children at reasonable times, and shall have the custody of them, or either of them, for reasonable periods during vacation seasons until the further order of the court.’ The case was referred to a master and at the hearing on his report the judge ordered that a decree be entered dismissing the petition. The libelant has presented by a bill of exceptions the questions of law sought to be raised. Inasmuch as upon the merits the conclusion reached by the trial court was right, we have not considered or undertaken to decide whether questions of law arising in contempt proceedings can be brought to this court by bill of exceptions. See Commonwealth v. McNary, 246 Mass. 46, 48, 140 N. E. 255, 29 A. L. R. 483;New York Central Railroad v. Ayer, 253 Mass. 122, 127, 128, 148 N. E. 567.
[1][2][3][4] At common law a father is entitled to the custody of his minor children and, if of sufficient ability, is bound to support them. Commonwealth v. Briggs, 16 Pick. 203, 205;Brow v. Brightman, 136 Mass. 187;Treasurer and Receiver General v. Sermini, 229 Mass. 248, 251, 118 N. E. 331. Accompanying this obligation to support is the right on the part of the father to the custody, society and services of the child. Angel v. McLellan, 16 Mass. 28, 29, 8 Am. Dec. 118;Foss v. Hartwell, 168 Mass. 66, 67, 46 N. E. 411, 37 L. R. A. 589, 60 Am. St. Rep. 366. If the father is deprived of the custody of his child by order of court it is held in this Commonwealth that the common-law duty to support ceases and, apart from statute, his obligation in this respect is then to be determined by judicial decree. G. L. c. 208, § 28; Brow v. Brightman, supra; Stone v. Duffy, 219 Mass. 178, 106 N. E. 595;Miller's...
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