Gallup v. Gallup

• Decision Date: 28 May 1930
• Citation: 171 N.E. 464,271 Mass. 252
• Parties: GALLUP v. GALLUP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 252

171 N.E. 464

GALLUP

v.GALLUP.

Supreme Judicial Court of Massachusetts, Hampden.

May 28, 1930.

Appeal from Probate Court, Hampden County; C. L. Long, Judge.

Action by Everita Bray Gallup against Burton Augustus Gallup. Decree awarding custody of minor child to plaintiff was modified on respondent's petition, and plaintiff appeals.

Affirmed.

R. A. Bidwell, of Springfield, for appellant.

Avery, Gaylord & Davenport, of Holyoke, for respondent.

WAIT, J.

On May 22, 1929, the Probate Court for Hampden County entered a decree which found that Everita B. Gallup was actually living apart from her husband Burton A. Gallup for justifiable cause under the facts found by the court in writing and filed therewith, which prohibited him from imposing any restraint on her personal liberty, and which ordered that she have the care and custody of Mary Erminia Gallup, their minor child, and that he make specified payments to her for the support of herself and their child until further order of the court. The decree was entered upon a petition filed under G. L. c. 209, § 32. The decree and the written finding filed with it show that the parties were married in 1921 and, two weeks thereafter, went to live in Holyoke, Massachusetts, the home and domicil of the husband, where he continued to reside until about May 8, 1926, when he ceased to live with his wife and went to live in the State of Connecticut. Until March 5, 1928, he remitted weekly a sum for her support. On October 20, 1927, he arrived in Nevada where by law a residence of three months is required before a libel for divorce may be filed. On January 21, 1928, he there filed a libel for divorce alleging ‘a course of habitual, extreme cruelty’ on her part. Summons was served upon her in Texas where she was then staying with her parents. She made no answer or demurrer, and was defaulted on March 6, 1928. After a hearing, a decree of divorce was entered on March 12. At that time and ever since he has discontinued to live with her and she was living apart from him for justifiable cause. On April 9, 1928, a marriage ceremony between him and one Ruth Ballard was performed in Brookline, Massachusetts, by a person duly authorized, and record of this marriage was recorded with the town clerk of Brookline. He resides in Bridgeport, Connecticut; she, in Holyoke, Massachusetts.

On June 13, 1929, he filed in Hampden County a petition alleging that he was the father of a child born October 2, 1922; that on May 22, 1929, the court on petition of the mother awarded custody of the child to her; that he believed it was not for the benefit and advantage of the child that the mother should have the custody; that the mother was planning and purposing to remove the child out of the Commonwealth without his consent; and praying that an order issue preventing such removal during the pendency of the petition and then only if suitable security be given, and further praying that the decree of May 22, 1929, in so far as it awarded the custody of the child to the mother be revised so that the petitioner or some other suitable person should have such custody, and for such further orders as the court deemed expedient. A restraining order issued forthwith. On July 10, 1929, after hearing the court entered a decree which recited the substance of the petition, that notice had been given and the parties had been heard and concluded as follows: ‘It is decreed that the decree of this Court dated May 22, 1929 be not modified and it is further decreed that the restraining order restraining said Everita Bray Gallup from removing said Mary Erminia Gallup from this Commonwealth shall continue in force until the further order of this Court.’ Appeal was claimed by Everita B. Gallup on July 19, 1929. On July 27 the judge filed the following ‘Finding of Facts': ‘In the above entitled petition I find that the following are all the material facts and upon which material facts, the decree in the case is based: The mother, Everita Bray Gallup, and who is the respondent in the petition of Burton Augustus Gallup, and to whom custody of the minor child Mary Erminia Gallup was given under decree of May 22nd, 1929, is a suitable and proper custodian in every respect for the said minor child; and I do not find any fact justifying a change of custody. I find, however, that the said Everita Bray Gallup was planning to leave this Commonwealth with the said minor child for a trip to...