Dumais v. Dumais

• Decision Date: 03 April 1956
• Citation: 152 Me. 24,122 A.2d 322
• Parties: Alcid F. DUMAIS v. Natalie Arlene DUMAIS.
• Court: Maine Supreme Court

Page 322

122 A.2d 322

152 Me. 24

Alcid F. DUMAIS v. Natalie Arlene DUMAIS.

Supreme Judicial Court of Maine.

April 3, 1956.

Edward J. Beauchamp, Lewiston, for plaintiff.

Frank W. Linnell, Auburn, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, BELIVEAU, TAPLEY and MURRAY, JJ.

WILLIAMSON, Justice.

On appeal. This is a bill in equity by a husband to enjoin his wife from proceeding further with a pending divorce action and to obtain custody of their minor children. The controversy centers upon the effect of antenuptial promises relating to divorce and the religious education and custody of the children. A claim in the original bill that the wife held property of her husband exceeding $100 in value, making the bill to this extent at least maintainable in equity under R.S. c. 166, § 40, was completely abandoned by amendment. The case was heard on amended bill and demurrer and reaches us on appeal from a decree dismissing the bill.

We pass objections of form raised by the demurrer to the issues arising from the antenuptial promises. For purposes of testing the demurrer the question is whether the facts here briefly stated justify relief in equity. Whitehouse Equity Jurisdiction §§ 324, 326, 331; Katz v. New England Fuel Co., 135 Me. 452, 199 A. 274.

The plaintiff, a Catholic, and the defendant, a non-Catholic, both over twenty-one years of age, sought and obtained dispensation for their marriage from the Bishop of Cleveland. The application signed by the defendant reads in part:

'I, not a member of the Catholic Church, desiring to marry Joseph Alcide DuMais, a Catholic, promise on my conscience:

'1. that I will ever adhere to the divine law that prohibits all divorce;

* * *

* * *

'3. that all children, boys and girls, that may be born of this union, shall be baptised and educated solely in the Catholic religion by me even in the event of death of my Catholic consort;

'4. that all children in the event of dispute, shall be given to such guardians that will assure the faithful execution of my covenant and promise; * * *'

The plaintiff made a like 'promise on my conscience', with suitable changes arisin from the fact that he was a Catholic.

There are four children from 11 to 3 years in age. The two elder were baptized in the Catholic Church. The defendant has refused to have the two younger so baptized, although often requested by the plaintiff.

In July 1955 the defendant brought a libel for divorce, now pending in the Androscoggin Superior Court, in which she prays for the care and custody of the children. The bill in equity was commenced on November 7 and dismissed on November 23rd last, during which period the record indicates there was in effect a restraining order against proceeding with the libel. We have no official knowledge of what, if any, action has since taken place in the divorce case.

The first and decisive question is whether equity has jurisdiction of the controversy. We answer in the negative.

With respect to the libel for divorce, the plaintiff says in substance that the promises to 'ever adhere to the divine law that prohibits all divorce' formed a binding contract between the parties; that only by preventing further proceedings on the divorce libel may the plaintiff be saved from irreparable loss; and that there is no plain adequate and complete remedy at law. In short, the plaintiff's argument is that by such promises a husband or a wife may forever close the door of the divorce court to the other.

Divorce by statute is placed within the jurisdiction of the Superior Court. R.S. c. 166, § 55. 'The law of divorce in this jurisdiction is wholly statutory.' Wilson v. Wilson, 140 Me. 250, 251, 36 A.2d 774. Given cause, the libelant is entitled of right to a divorce. The decision does not lie within the discretion of the court. Kennon v. Kennon, 150 Me. 410, 111 A.2d 695. The Equity Court has no jurisdiction to grant or deny divorce. The plaintiff husband does not indeed contend otherwise. His position is that the antenuptial promises are not available directly in defense of the divorce libel, and so he seeks indirectly through equity to reach for practical purposes a like result. There is, however, no necessity for the intervention of equity in the pending legal proceedings. The case differs widely from Usen v. Usen, 136 Me. 480, 13 A.2d 738, 128 A.L.R. 1449 in which the court restrained a Maine husband from proceeding further in Florida against his Maine wife with a divorce based upon false allegations of residence.

No authority has been called to our attention in which the point in issue has been raised. The subject matter--divorce--is entirely governed by the statutes, to which alone the courts may look for jurisdiction. Equity on this ground has no...