Ellis v. Ellis

• Decision Date: 13 August 1992
• Citation: 597 N.E.2d 420,413 Mass. 1003
• Parties: Gary A. ELLIS v. Delores B. ELLIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 420

597 N.E.2d 420

413 Mass. 1003

Gary A. ELLIS v. Delores B. ELLIS.

Supreme Judicial Court of Massachusetts Dukes County.

Argued March 4, 1992.

Decided Aug. 13, 1992.

Rosemarie Haigazian, Edgartown, for Gary A. Ellis.

Albert B. Maggio, Jr., Westford, for Delores B. Ellis.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

RESCRIPT.

A judge in the Probate and Family Court Department granted the plaintiff a divorce nisi, and temporarily ordered that the Department of Social Services would take legal custody of the defendant mother's child. In a memorandum of decision, the judge found the following facts bearing on questions of custody, visitation, and child support. The parties were married on January 23, 1988. The defendant mother gave birth one month later. The child is named after the plaintiff's grandfather. The plaintiff was present at the birth and is named as the father on the child's birth certificate. However, the parties stipulated that the plaintiff is not the child's biological father and, in fact, the plaintiff did not know the defendant at the probable time of conception. Without finding facts or issuing any orders other than the order of temporary legal custody, the judge reserved and reported to the Appeals Court under G.L. c. 215, § 13 (1990 ed.), the following question: "Can [a Probate and Family Court judge] under current Massachusetts statutes and case law award custody or visits to a non-biological[ly related] plaintiff who arguably established a bond with a child born during the plaintiff's marriage to the biological mother, assuming for the sake of argument that the plaintiff can establish that custody or visits in or with him are in the child's best interest"?

General Laws c. 215, § 13 (1990), provides: "A judge of the probate court by whom a case or matter is heard for final determination may reserve and report the evidence and all questions of law therein for consideration of the appeals court, and thereupon like proceedings shall be had as upon appeal. And if, upon making an interlocutory judgment, decree or order, he is of opinion that it so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the appeals court, he may report the question for that purpose, and stay all further proceedings except such as are necessary to preserve the rights of the parties." This statute is the sole source of authority under which the judge reserved and reported this case, Matter of Jones, 379...