Glass v. Glass

• Decision Date: 14 July 1927
• Citation: 260 Mass. 562,157 N.E. 621
• Parties: GLASS v. GLASS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 562

157 N.E. 621

GLASS

v.GLASS.

Supreme Judicial Court of Massachusetts, Worcester.

July 14, 1927.

Appeal from Probate Court, Worcester County; H. H. Atwood, Judge.

Petition by Euphemia M. Glass against William C. Glass for custody of minor children. On appeal from decree of the probate court. Decree modified, and, as modified, affirmed.

W. T. Forbes and L. M. Erskine, both of Worcester, for appellant.

H. P. Mason and J. S. Stone, both of Boston, for appellee.

RUGG, C. J.

This is a petition by a mother residing in this commonwealth for the custody of two minor children of herself and the respondent. Since the only questions at issue concern the son, he alone will be hereafter referred to. The case comes here by appeal from the probate court, which under St. 1922, c. 532, § 6, has jurisdiction of the subject-matter of the petition.

[1][2] It was submitted on what is termed in the record ‘Agreed Facts.’ Practice in probate courts is according to equity so far as practicable and applicable. Churchill v. Churchill, 239 Mass. 443, 445, 132 N. E. 185. In equity, agreed facts commonly are treated as evidence with power on the part of the court to draw such inferences as may be warranted. Donahoe v. Turner, 204 Mass. 274, 275, 90 N. E. 549. Compare Frati v. Jannini, 226 Mass. 430, 431, 115 N. E. 746.

[3] The facts now material are that the petitioner and respondent, married in this commonwealth and domiciled here when their son was born, subsequently acquired a domicile in New Jersey, where the respondent still lives. They lived together there until October, 1923, and thereafter ceased to live together as husband and wife. On November 13, 1924, the husband filed a petition for divorce in New Jersey, and on May 23, 1925, the wife filed a cross-petition for divorce.

In each of these petitions was a prayer for custody of the son. After hearing, divorce nisi was granted to the husband, which was affirmed on appeal on May 17, 1926. Exclusive custody of the minor son was decreed to the father on June 23, 1926, leave being reserved to the mother to apply for modification. This was the first decree by any court affecting the custody of the son. A final decree granting absolute divorce to the husband and dismissing the cross-petition of the wife was entered by a court of competent jurisdiction in New Jersey on June 30, 1926. They have not since remarried. In June, 1925, the wife and mother (the present petitioner) and the son, then 14 years old, without consulting the husband and father (the present respondent), went from New Jersey to Blackstone, in this commonwealth, where they have since resided. At no time has the respondent consented to the residence of the son in this commonwealth.

The probate judge rightly ruled or found as an inference from these agreed facts that the son since prior to the institution of divorce proceedings in New Jersey has not been an inhabitant of this commonwealth, but has been an inhabitant of New Jersey. At common law the domicile of a legitimate minor child is that of the father. The reason for this is that the father is the natural guardian, is entitled to the custody and services, and is responsible for the tutelage, discipline and support of such child. This doctrine as to domicile rests upon the reciprocal rights and duties of father and child. It obtains even though the parents may be living apart. Dedham v. Natick, 16 Mass. 135, 319.Tornroos v. R. H. White Co., 220 Mass. 336, 341, 107 N. E. 1015;Martin v. Gardner, 240 Mass. 350, 354, 134 N. E. 380;Lamar v. Micou, 112 U. S. 452, 470, 5 S. Ct. 221, 28 L. Ed. 751;Matter of Thorne, 240 N. Y. 444, 448, 148 N. E. 630;White v. White, 77 N. H. 26, 29, 86 A. 353;Hess v. Kimble, 79 N. J. Eq. 454, 457, 81 A. 363;Bjornquist v. Boston & Albany R. Co., 250 F. 929, 163 C. C. A. 179, 181;Delaware, Lackawanna & Western R. Co. v. Petrowsky, 250 F. 554, 162 C. C. A. 570, 574; Parsonsfield v. Kennebunkport, 4 Greenl (Me.) 47, 50, 51; Lanning v. Gregory, 100 Tex. 310, 315, 99 S. W. 542,10 L. R. A. (N. S.) 690, 123 Am. St. Rep. 809; Sharpe v. Crispin, L. R. 1 P. & D. 611, 617; Udny v. Udny, L. R. 1 Sc. & D. 441, 449, 460. The statutory provisions respectingthe settlement of children are founded on this principle of the common law. G. L. c. 116, § 1, cl. third.

[4][5] A married woman may acquire a domicile different from that of her husband in appropriate circumstances. Bradford v. Worcester, 184 Mass. 557, 561, 69 N. E. 310;Clark v. Clark, 191 Mass. 128, 132, 133, 77 N. E. 702. But in the absence of some neglect of parental duty on the part of the father, or some provision of statute, that does not affect the domicile of minor children of the two born in lawful wedlock.

[6] The jurisdiction of probate courts to consider petitions of this nature is found in G. L. c. 208, § 29, as affected by St. 1922, c. 532, § 9, which so far as pertinent is in these words:

‘If, after a divorce has been decreed in another jurisdiction, minor children of the marriage are inhabitants of this commonwealth,’ probate courts upon proper petition and ‘notice to both parents, may make like decrees relative to their * * * custody, * * * as if the divorce had been decreed in this commonwealth.’

The words ‘residents or inhabitants,’ in connection with the jurisdiction of probate courts over minors, are found in G. L. c. 201, § 1, and chapter 209, § 37, and perhaps in other sections. The difference in meaning of these two words in chapter 201, § 1, was discussed in Martin v. Gardner, 240 Mass. 350, 134 N. E. 380, and the...