Heard v. Heard

• Decision Date: 03 November 1948
• Parties: JOHN HEARD v. ROSAMOND GREGOR HEARD (and a companion case [1]).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 357

82 N.E.2d 219

JOHN HEARD v. ROSAMOND GREGOR HEARD (and a companion case ^[1]).

Supreme Judicial Court of Massachusetts, Middlesex.

November 3, 1948

December 6, 1946 September 14, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN & RONAN, JJ.

Jurisdiction Divorce proceedings, Custody of child, Raising question of jurisdiction, Nonresident. Marriage and Divorce Jurisdiction, Foreign divorce, Custody of child. Estoppel. Domicil. Minor. Constitutional Law, Full faith and credit, Divorce. Parent and Child.

On evidence reported on appeal from a decree for the petitioner in a proceeding brought by a husband against his wife in a Probate Court under G. L. (Ter. Ed.) c. 209, Section 36, this court, contrary to the conclusion reached by the trial judge, came to the conclusion that the respondent, who had been domiciled with the petitioner in Massachusetts, acquired a bona fide domicil in Nevada before bringing a divorce proceeding there and still had such domicil at the time of the entry of a judgment of divorce, where it appeared from the evidence that she went to Nevada intending to acquire a domicil in that State, in accordance with its laws, for the purpose of procuring the divorce, to make that

State her permanent home and not to return to Massachusetts; and that she remained in Nevada for the time requisite to the bringing of the divorce proceeding there and until the entry of the judgment of divorce, meanwhile purchasing a house in Nevada, and was still living in that house with her children and had not returned to Massachusetts at the time of the entry of the decree here.

One was not estopped to attack collaterally in Massachusetts the jurisdiction of a Nevada court to grant a divorce against him where, although he had been duly served with a summons in the Nevada proceeding, he had not appeared nor participated therein in any way.

A judgment of divorce, granted to a woman by a Nevada court after due summons to her husband and valid in that State according to its laws, must be regarded as valid by the courts of Massachusetts by reason of the full faith and credit clause of the Federal Constitution notwithstanding G. L. (Ter. Ed.) c. 208, Section 39, even though it was granted for a cause occurring in Massachusetts while the parties were domiciled here and the woman went from here to Nevada for the purpose of procuring it, where it appeared that she had acquired a bona fide domicil in Nevada before bringing the divorce proceeding there and still had such domicil at the time of the entry of the judgment of divorce.

A Nevada court having jurisdiction to grant a divorce to a woman domiciled there, formerly domiciled with her husband in Massachusetts, also had jurisdiction to deal with the custody of a minor child of the parties who had been taken from Massachusetts to Nevada by his mother and was physically present in Nevada throughout the proceedings there.

A domicil of origin of a minor with his parents in Massachusetts, where his father remained domiciled, was not changed when his mother took him with her to Nevada and there acquired a separate domicil and secured a divorce.

Following the granting of a divorce to a woman by a Nevada court and a judgment by that court which was subject under the law of that State to modification for good cause and which awarded to the woman custody of a minor child of the parties physically present in Nevada but domiciled in

Massachusetts by reason of his father's domicil here, a Massachusetts Probate Court, upon a petition by the father and a general appearance by the mother, had jurisdiction under G. L. (Ter. Ed.) c. 208, Section 29, to change the custody of the child for good cause although he was not physically within Massachusetts, and a decree to that effect would not deny full faith and credit to the Nevada judgment in violation of the

Federal Constitution.

Upon reported evidence, this court came to the conclusion, contrary to that reached by a judge of a Probate Court, that the welfare of a boy seven years of age, child of divorced parents, required that he remain in the custody of his mother, who had always cared for him and was an excellent mother and devoted to him.

The fact that a mother secretly removed her minor child to a distant State without his father's consent could not control the welfare of the child as the paramount consideration in determining the question of his custody as between his parents.

PETITIONS, filed in the Probate Court for the county of Middlesex on September 18, 1945.

The cases were heard by Leggat, J. In this court the cases were submitted on briefs.

R. P. Dellinger & W.

J. Fitzgerald, for the respondent.

A. J. Daly & J.

A. Daly, for the petitioner.

DOLAN, J. 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, Section 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 petitioner that 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 on 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 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 on 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...