Hersey v. Hersey

• Decision Date: 06 June 1930
• Citation: 171 N.E. 815,271 Mass. 545
• Parties: HERSEY v. HERSEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 545

171 N.E. 815

HERSEY

v.HERSEY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1930.

Appeal from Probate Court, Suffolk County; J. R. McCoole, Judge.

Petition by Waldon B. Hersey for modification of a decree for divorce, granted to Nina R. Hersey against him, so far as it relates to the custody of Joan Hersey, now Joan Crawford, their minor child. From an order denying the mother's plea to the jurisdiction and a decree awarding custody of the child to the father, the mother appeals.

Order denying plea to jurisdiction affirmed, and decree reversed.

L. R. Chamberlin and R. J. Cook, both of Boston, for appellant.

E. A. Howes and J. B. Angevine, both of Boston, for appellee.

RUGG, C. J.

This is a petition for modification of a decree for divorce so far as it relates to the custody of a minor child of the parties. One question is whether the probate court has jurisdiction. The relevant facts in that connection are these: On March 13, 1925, a divorce nisi was granted by the probate court for our county of Suffolk, which had jurisdiction of all the parties, the libelant being then a resident of Boston in this commonwealth, to the wife, the respondent in the case at bar and hereafter so designated, against the husband, the present petitioner and hereafter so designated, for the causes (1) of cruel and abusive treatment and (2) of gross, wanton and cruel refusal and neglect to provide suitable maintenance for the wife. It was ordered by the decree then entered that the petitioner pay thirty dollars per month to the respondent for the support of their minor child, Joan Hersey, and that the custody of the child be given to the respondent, the petitioner ‘to be permitted to visit said child for reasonable periods monthly if he so desires provided that he shall not be at the time of said visit in default of any of the payment’ for her support required by the decree. The decree nisi became absolute in September, 1925. The present petition for modification was filed on June 11, 1928. It alleges full performance by the petitioner of all the requirements of said decree resting upon him, but that the respondent has refused to permit him to visit the child as therein required; that the respondent was married in 1925 or 1926 to Robert Crawford, with whom she has since lived and is now living in Portland in the state of Maine; that the child is enrolled in school, under the name John Crawford and that the respondent causes the child to be known by that name; and that the petitioner is able and willing to provide proper care for the child at the home of his mother in this commonwealth. Notice upon this petition was issued returnable on June 28, 1928, and personal service was made upon the respondent in Portland on June 14, 1928.

The parties here stipulated that on the present petition a general appearance was filed by the respondent on June 22, 1928, but was subsequently withdrawn. The respondent now is domiciled in the state of Maine. The effect of this appearance was to waive any defect of service or of jurisdiction over the person of the respondent. Paige v. Sinclair, 237 Mass. 482, 130 N. E. 177;Robertson v. Railroad Labor Board, 268 U. S. 619, 622, 45 S. Ct. 621, 69 L. Ed. 1119. Want of jurisdiction over the subject-matter, if any existed, could not be waived. Sturman v. McCarthy, 232 Mass. 44, 48, 121 N. E. 522.

The respondent then filed, on February 25, 1929, a plea to the jurisdiction, setting out that the child was adopted and her name changed to Joan Crawford by decree of a court of competent jurisdiction in the state of Maine entered in October, 1928, upon petition by Robert B. Crawford, Junior, and herself, his wife, all being then residents in the state of Maine, and that that court had jurisdiction of the parties and the subject-matter and that hence a probate court of this commonwealth has no jurisdiction over the present petition. At the hearing upon this plea, an exemplified copy of the decree of the Maine court was in evidence. Thereby it appeared that the respondent and her present husband duly petitioned for the adoption of Joan Hersey, child of the petitioner and the respondent born in Boston in June, 1922, alleging that the petitioning Mrs. Crawford, mother of the child, was by decree of a probate court in this commonwealth granted a decree of divorce on the grounds of cruel and abusive treatment, and also granted the custody of the minor child Joan. That petition was dated on October 13, 1928, and so far as appears by that record was not assented to by the present petitioner as father of the child and no order of notice issued to him. Decree was entered on October 16, 1928, granting the adoption, and changing the name of the child to Joan Crawford. The present petitioner was called as a witness at the hearing on the plea to the jurisdiction and testified in substance that he knew nothing of the adoption proceedings until after the decree granting adoption, and that his former wife and child had lived in Maine since the fall of 1927; that he raised no objection to the mother on the ground that she and the child had removed from this commonwealth, but that he did not in any way give his consent to the removal of the child, and that he had promptly made all payments required of him by the decree of divorce.

It is provided by G. L. c. 208, § 28, that a decree as to custody of minor children entered as part of a divorce proceeding ‘afterward may from time to time, upon the petition of either parent,’ be revised or altered or a new decree made ‘as the circumstances of the parents and the benefit of the children may require.’ It is also provided by section 30 of the same chapter, as affected by St. 1922, c. 532, § 6, that ‘a minor child of divorced parents who is a native of * * * this commonwealth and over whose custody and maintenance’ the superior or a probate court of this commonwealth ‘has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders.’

It is plain that under these sections the decree originally entered granting the divorce and awarding the custody of the minor child was within the jurisdiction of the court and might be modified subsequently if the parties remained within the commonwealth. Oliver v. Oliver, 151 Mass. 349, 351, 24 N. E. 51;Stone v. Duffy, 219 Mass. 178, 106 N. E. 595;Perkins v. Perkins, 225 Mass. 392, 397, 114 N. E. 713. These provisions of the statute as matter of statutory construction confer upon the courts which have had and have exercised jurisdiction as to the custody of children of divorced parents, as part of the decree granting divorce to the parents, continuing authority as an incident of those proceedings to revise or alter orders made concerning the children. As ancillary to that continuing authority, provision is made that any child concerning whom such order has been made shall remain within the commonwealth unless the court orders to the contrary or unless both parents or the child if of suitable age consents to removal from the commonwealth. See Gallup v. Gallup (Mass.) 171 N. E. 464. Thus the continuance of jurisdiction over the subject by the courts of this commonwealth is assured so far as the General Court thought wise and had power so to enact. The policy of the commonwealth was thus declared. Orders as to custody of children in the cases arising under these sections are not final in the sense that a judgment in a proceeding at law or a final decree in a suit in equity is final and not subject to subsequent change by the court. They are in their nature interlocutory and subject to modification at any future time during the lives of the parents and the minority of the children upon good cause shown. The litigation instituted by the filing of the original libel for divorce has not been terminated as to such orders but is still pending in the sense that they may be modified or annulled.

The present petition is addressed to the court wherein was entered the decree of divorce and custody of the child to modify that decree in the exercise of the continuing jurisdiction thus established. The facts are, however, that in truth there has been violation of said section 31 in that the respondent has removed the child from the commonwealth without either the consent of the petitioner or an order of court to that end. The child is now physically in the state of Maine and beyond the reach of process issued by courts of this commonwealth. That factor does not deprive courts of this commonwealth of jurisdiction to exercise the reserved and continuing power to change their determination defining the status of the children as the instance of either parent. Recognition of such changed determination will be given at least within this commonwealth. It is quite conceivable that occasions may arise where such recognition may assume practical value of some importance. The respondent was the libelant in the divorce proceedings. It was at her request that the custody of the child was awarded her and the substantial contribution for her support was exacted of the petitioner for her use by the court of this commonwealth. These orders in her favor were by the express terms of the statutes already quoted made subject to the possibility of future change. She accepted the benefit of all the advantages accruing to her under the decree. She received it with all limitations and implications attaching thereto. She cannot now question the jurisdiction of the court to exercise the very power reserved in its original order in her favor, by which she has profited and which she has continued to enjoy. It was said with reference to somewhat similar facts in Stetson v. Stetson, 80 Me. 483, 485, 15 A. 60, 61, that, although removed from the state, ‘the child is not removed from the...