Dennis v. Dennis

Decision Date12 February 1958
Citation337 Mass. 1,147 N.E.2d 828
PartiesStanley W. DENNIS v. Anna DENNIS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Edward R. Bonitz, Belmont (Sidney L. Mitchell, Bay Shore, N. Y., and James J. Curley, Wakefield, with him), for libellant.

Melvin J. Levine, Wakefield, for libellee.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, Jj.

WHITTEMORE, Justice.

This is an appeal from an order of the Probate Court for Middlesex County which dismissed the petition of a libellee in prior divorce proceedings in that court to vacate the divorce decree. The grounds for relief alleged in the petition were fraud on the court and lack of jurisdiction.

There is a report of material facts and the evidence is also before us. The judge found, appropriately, the facts stated in the following paragraphs.

The divorce decree became absolute on May 12, 1947. The libellant had died on June 17, 1954, at Bay Shore, Long Island, New York, leaving a will, which was admitted to probate there and which made no provision for the petitioner nor for the child of the marriage. The petitioner filed a notice of election to waive the provisions of the will and to claim her interest in the estate as the surviving widow. The executrix, whom the libellant had married in 1952, moved to strike the notice. The proceedings in New York awaited the outcome of these proceedings, which are contested by the executrix. The executrix filed in the robate Court a motion to dismiss the petition for revocation and has filed a brief as appellee.

The libel for divorce had alleged marriage in New York city on December 28, 1934, and life together in New York thereafter and never in Massachusetts, that thereafter the petitioner deserted the libellant, and that the libellant had resided in Wakefield, Massachusetts, for more than five years next prior to the filing of the libel. The petitioner was duly served and by an attorney filed an answer denying the desertion and alleging that the libellant had deserted her. The libellant never in fact lived in Massachusetts, misrepresented the fact, and committed perjury at the hearing on November 12, 1946. The petitioner was present in court and represented by counsel at the hearing on November 12, 1946, at which the libellant testified that during the five years next preceding the filing of the libel, dated March 2, 1946, he had lived at 14 Armory Street, Wakefield. Neither the petitioner nor her counsel took any part in the hearing. Upon the record there appeared to be jurisdiction to grant a divorce. The decree nisi, entered November 12, 1946, awarded the care and custody of the minor child to the petitioner and ordered the libellant to pay $20 a month for the support of the child. Fifteen hundred dollars was deposited with the attorney for the petitioner to secure the payments. The petitioner relied upon the libellant's promise, made subsequent to the decree absolute of divorce, that he would establish a trust fund for the maintenance of the son, a victim of multiple sclerosis.

The parties had lived together only in the State of New York. The libellant deserted the petitioner in 1939. See found him in 1941 with the aid of a detective. At that time he was living in Brooklyn, New York, as husband and wife, with the executrix. He was then arrested on the complaint of the petitioner on process of the Domestic Relations Court of New York city and ordered to pay support for the child. In May, 1942, the libellant moved to Bay Shore, Long Island, New York, and was employed by Fairchild Engine and Airplane Company at Farmingdale, Long Island. On May 11, 1943, he was inducted into the United States Army from Brooklyn, New York, and went overseas. The petitioner received an allotment during his army service. He was discharged from the army at Fort Dix, New Jersey, on December 28, 1945, and returned to Bay Shore, Long Island, New York. From 1942 to 1946 the libellant's mother lived at 14 Armory Street, Wakefield, and the libellant visited her there just before he went overseas and again in March, 1946, when the libel was signed. 'The State of New York has given full faith and credit to * * * [the divorce] decree in recognizing * * * [the executrix] as * * * [the libellant's] widow.' The petitioner did nothing to revoke the decree until after the death of the libellant.

The judge also found that the petitioner was never in Massachusetts until the time of the hearing on the libel 'and knew nothing of the libellant's whereabouts from 1941 to that time, except that he was in the army.' We think this finding is somewhat more favorable to the petitioner than her own testimony warrants, and that it can reasonably be concluded, as the appellee contends, that the petitioner knew that her husband had an abode in Brooklyn in 1943 when he was drafted there and that she learned from her niece who lived in Bay Shore, Long Island, soon after the husband's discharge from the army in 1945, that he was living in Bay Shore, Long Island. However we do not think there was any evidence which required a finding that the petitioner consciously withheld information which she knew to be material. The result here is not affected by the absence of such a finding, and as it was not made by the judge who heard and saw the witnesses, we ascribe no bad faith to the petitioner in not disclosing facts which were material.

The decree of divorce, although beyond the court's power for want of statutory jurisdiction, was nevertheless binding on the parties until and unless reversed on direct attack. See Old Colony Trust Co. v. Porter, 324 Mass. 581, 586-587, 88 N.E.2d 135, 12 A.L.R.2d 706; Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429; Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451; Rubinstein v. Rubinstein, 324 Mass. 340, 342, 86 N.E.2d 654; Royal .v Royal, 324 Mass. 613, 618, 87 N.E.2d 850.

The principles to be applied when direct attack is instituted are stated and exemplified in our decisions. The petitioner's participation in the proceedings, without more, is not a bar to relief. Bergeron v. Bergeron, 287 Mass. 524, 526, 192 N.E. 86, 88. The issue can be raised 'at any stage of the proceedings. No one party nor all parties can by their conduct confer jurisdiction over a cause on a court which has no jurisdiction.' Ibid., 287 Mass. 526, 192 N.E. 88. But the happening of events after the entry of a decree with the sufferance or cooperation of the petitioner may be a bar to relief. A number of our decisions have recognized that remarriage of the parties or either of them in reliance on the decree of divorce, so that status and rights of other persons are affected, may be a bar to the vacation of the decree. The principle has been applied in several cases in which a foreign decree of divorce obtained in proceedings in which both husband and wife participated was attacked in subsequent proceedings in this Commonwealth. These cases were decided while it was supposed that constitutional requirements of full faith and credit did not prevent collateral attack on a foreign decree of divorce in the courts of the jurisdiction of original domicil (see Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366; Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429), so that this court acted as with power to determine the effect of the decree in this State equal to that which it would have had in the case of a domestic decree.

The cases we refer to are Loud v. Loud, 129 Mass. 14; Chapman v. Chapman, 224 Mass. 427, 113 N.E. 359, L.R.A.1916F, 528; and Langewald v. Langewald, 234...

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8 cases
  • Madden v. Madden
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 21 Abril 1971
    ...to vacate, or other methods of direct attack.' Old Colony Trust Co. v. Porter, 324 Mass. 581, 586, 88 N.E.2d 135. See Dennis v. Dennis, 337 Mass. 1, 4, 147 N.E.2d 828. These principles are properly applicable to an objection to jurisdiction over the person. Restatement: Judgments, § 9, illu......
  • Leatherbury v. Leatherbury
    • United States
    • Maryland Court of Appeals
    • 24 Enero 1964
    ...decree or one who aided in its procurement so that he could marry the procurer cannot attack it even if it is invalid); Dennis v. Dennis, 337 Mass. 1, 147 N.E.2d 828 (whatever the standing or lack of it of a person not a party to a foreign divorce to show the validity in a collateral procee......
  • Poor v. Poor
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 28 Agosto 1980
    ...N.E. 566 (1920). Chapman v. Chapman, 224 Mass. 427, 113 N.E. 359 (1916). Loud v. Loud, 129 Mass. 14 (1880). See also Dennis v. Dennis, 337 Mass. 1, 4, 147 N.E.2d 828 (1958). Similarly, a challenge to a divorce obtained in a foreign country was precluded where the attacking party had acquies......
  • Lorant v. Lorant
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 13 Noviembre 1974
    ...it in the sense that it would be conspicuously unfair and inequitable for him to do so at this stage. See Dennis v. Dennis, 337 Mass. 1, 4--7, 147 N.E.2d 828 (1958), and cases cited. A case where the spouse who himself initiated the divorce proceeding and obtained the divorce decree seeks m......
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