Heard v. Heard

• Decision Date: 03 November 1948
• Citation: 82 N.E.2d 219,323 Mass. 357
• Parties: HEARD v. HEARD (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 357

82 N.E.2d 219

HEARD

v.HEARD (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 3, 1948.

Appeal from Probate Court, Middlesex County; J. C. Leggat, Judge.

Two proceedings by John Heard against Rosamond Gregor Heard, consolidated for trial, to determine that respondent had deserted petitioner and that petitioner was living apart from respondent for justifiable cause, and that petitioner was entitled to custody of a minor child of the parties. From the decrees, respondent appeals.

Decree adjudging respondent guilty of desertion reversed, and final decree ordered entered dismissing petition; decree awarding child to petitioner reversed, and final decree ordered entered awarding child to respondent in accordance with opinion.

Before QUA, C.J., and LUMMUS, DOLAN, and RONAN, JJ.

A. J. & J. A. Daly, of Boston, for petitioner.

R. P. Dellinger and W. J. Fitzgerald, both of Boston, for respondent.

DOLAN, Justice.

These two cases come before us on the respondent's appeal from the decree entered by the judge in the first case adjudging that the respondent had deserted the petitioner and that he was living apart from her for justifiable cause, see G.L.(Ter.Ed.) c. 209, § 36, and on her appeal from the decree entered by the judge in the second case granting custody of John Heard, Junior, the minor child of the parties, to the petitioner. The cases were heard together, the evidence is reported, and the judge made a consolidated report of material facts found by him.¹

THE FIRST CASE.

Material facts found by the judge in this case may be summed up as follows: The parties were married at Cambridge on June 26, 1939. The minor child was born to them on August 17, 1941. Until July 7, 1945, they lived together in the same house in Cambridge. The daughter of the respondent by a previous marriage, Ursula Marshall, generally known as Ursula Heard, lived with them as did their minor child. The title to the house in which they lived was held by the respondent as trustee under her mother's will, and the taxes thereon and capital expenditures in connection therewith were paid out of the trust estate. All other expenses of maintenance of the household were paid by the petitioner. The petitioner treated the respondent at all times kindly and provided adequate support for her. On July 7, 1945, no cause existed which would justify the respondent in leaving the petitioner. Prior to that date the respondent announced to the petitionerthat she was going to Canada for a vacation which would last from six to eight weeks. The petitioner bought transportation for her and gave her $850 for the expenses of the vacation. He saw her off at the train at Boston on the evening of July 7 and bade her good-bye affectionately. The next morning he sent the child and Ursula to join the respondent in Canada. In fact, the respondent intended to go to Canada for but a short time, and then to go to Reno in the State of Nevada and procure a divorce. The representation that she was going to Canada for a vacation was false and was intended to deceive the petitioner. ‘Shortly prior to July 7, 1945, [she] disclosed to at least one servant in their home her intention not to come back from the pretended vacation and * * * instructed this servant to conceal from her husband this intention.’ The last communication the petitioner received from her while she was in Canada was a letter mailed from Montreal on August 3, 1945, in which she stated that the child was happy and at home, that the weather had been perfect, and that that was literally all she had to tell. She left Montreal no or about August 3, 1945, and arrived at Reno on or about August 9 or 10. She did not then intend to establish a domicil in Reno but intended to establish a fictitious residence there for the sole purpose of procuring a divorce. Before leaving Cambridge for Reno she had consulted lawyers, without the knowledge of the petitioner, relative to procuring a divorce. After she left Montreal her attorneys at first concealed her whereabouts, but revealed them after the petitioner had refused to agree to a divorce and had retained counsel. On September 18, 1945, the petitioner filed in the Probate Court the petition now before us. After arriving in Reno the respondent lived with the child at various lodging houses or on ranches at or near Reno. On or about September 29, 1945, the respondent filed an action for a judgment of divorce in the Second Judicial District Court of the State of Nevada in and for the county of Washoe, alleging as cause extreme cruelty on the part of the petitioner toward her, and praying that she be given custody of the minor child of the parties. The petitioner did not appear in that proceeding, and he never was in Reno. On November 30, 1945, the Nevada court entered a judgment and decree granting the respondent here a final and absolute divorce from her husband, the petitioner here, restoring ‘each of the parties * * * to the status of an unmarried person,’ and awarding the custody of the minor child to the respondent. The petitioner has been at all times ready and willing to have the respondent return to live with him. The judge further found that the respondent did not in good faith acquire any domicil in Nevada and that her domicil, as well as that of the minor, ‘was at the time of the commencement of these proceedings and still is in Cambridge,’ and entered a decree of January 10, 1946, adjudging that the respondent had deserted the petitioner and that he was living apart from her (‘his wife’) for justifiable cause.

In the light of the decree entered by the judge, we interpret his finding, that ‘the respondent did not in good faith acquire any domicil in Nevada and that her domicil and that of * * * [the] minor child * * * was at the time of the commencement of these proceedings and still is in Cambridge,’ to mean that the judge impliedly found that the judgment or decree of divorce procured by the respondent in Nevada was null and void. Whether it is so null and void is the decisive question, since, if it is valid, the parties would not have been husband and wife when the judge heard the petition and entered the decree appealed from, as required by the statute under which the petition was brought, G.L.(Ter.Ed.) c. 209, § 36,² and therefore the judge would have been without authority to enter the decree. Cohen v. Cohen, 319 Mass. 31, 34, 64 N.E.2d 689, 163 A.L.R. 362, and cases cited. Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 1097.

Since all the evidence is before us, all questions of law, fact and discretion are open for our decision. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27. Proceeding to examine the evidence in accordance with our duty under the familiar rule, we ourselves find the following facts: The respondent before leaving her husband on July 7, 1945, disclosed to others than the servant to whom the judge referred in his report that she was going to Reno to procure her divorce and that she did not intend to live with the petitioner again. After her short stay in Canada she did go to Reno intending to acquire a domicil there, in accordance with the law of the state of Nevada, for the purpose of procuring a divorce. She remained in Reno for the time required by the laws of the State of Nevada before filing her action for divorce. The cause alleged was ‘extreme cruelty,’ which is also a cause for divorce in this Commonwealth. G.L.(Ter.Ed.) c. 208, § 1. Chapman v. Chapman, 224 Mass. 427, 430, 113 N.E. 359, L.R.A.1916F, 528. It is a proper inference on all the evidence that the cause alleged occurred in this jurisdiction. On November 5, 1945, the respondent purchased a house in Reno in which she was living, at the time of hearing and entry of decree in the court below, with the minor child and with her daughter Ursula when she was not attending college. The latter testified at the hearing before the judge that she resided in Reno, Nevada, with the respondent. The respondent, whose testimony was taken by deposition, testified that in going to Nevada she intended to make Reno her permanent home. At the time of entry of decree in the court below she had not returned to Massachusetts. In the divorce action filed in the Nevada court on September 28, 1945, entitled ‘Rosamond Gregor Heard, Plaintiff, vs. John Heard, Defendant,’ the petitioner here was summoned to appear within thirty days after the service of the summons to defend and action ‘brought to recover a judgment, awarding to [the] plaintiff an absolute decree of divorce from [the] defendant, and the sole care, custody and control of John Heard * * * [their minor child] together with an order requiring [the] defendant to pay to plaintiff the sum of $250 per month for the support of plaintiff and said minor child * * *.’ In the ‘judgment and decree’ of divorce entered in the Nevada court, it was recited in substance that the defendant (the petitioner here) were regularly served with summons, that more than thirty days had expired since service, that no answer, pleading or appearance had been filed by him or in his behalf, and that his default had been duly entered. No contention is made by the petitioner that there was any violation of procedural due process. On all the evidence we are unable to concur in the finding of the judge that the respondent in going to Nevada did not intend to establish a domicil there but intended to establish a fictitious residence there and that her domicil continues to be in Massachusetts, being of opinion that the proper conclusion on the evidence is that, while the respondent went to Nevada for the purpose of procuring a divorce from the petitioner, she intended to acquire a domicil there in accordance with its laws, that she did not intend to and had not in fact returned to this Commonwealth when the present petition was heard and decree was entered in the court below, and that she did acquire a bona fide domicil in...