Hogan v. Hogan

• Decision Date: 10 January 1947
• Citation: 70 N.E.2d 821,320 Mass. 658
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: PERCY J. HOGAN v. ANNA M. HOGAN & another.

320 Mass. 658

70 N.E.2d 821

PERCY J. HOGAN v. ANNA M. HOGAN & another.

Supreme Judicial Court of Massachusetts, Essex.

January 10, 1947

November 8, 1946.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & SPALDING, JJ.

Declaratory Judgment. Probate Court, Declaratory relief, Judicial discretion. Estoppel. Marriage and Divorce, Foreign divorce. Laches. Equity Jurisdiction, Laches.

A Probate Court had jurisdiction in equity of a suit under c. 231A, inserted in G. L. (Ter. Ed.) by St. 1945, c. 582, Section 1, for a binding declaration of the status of the petitioner, who contended that he was still the husband of a respondent contrary to her contention that she had been lawfully divorced from him by decree of a Nevada court and lawfully thereafter had married a second respondent.

Neither want of equity nor laches was shown as a matter of law by averments in a petition by a man under G. L. (Ter. Ed.) c. 231A inserted by St. 1945, c. 582, Section 1, for a binding declaration of his marriage status with the respondent, who he contended was his wife notwithstanding the fact that, two and one half months before the petition was filed, she had procured a decree of divorce from him in

Nevada after going there from Massachusetts, where she had been domiciled with him, for the sole purpose of securing the divorce and after he had signed and had sent to her attorney there a "so called `power of attorney' authorizing some Nevada attorney unknown to him to appear for him in said divorce proceedings"; nor did the facts so averred estop the petitioner from maintaining the petition. On demurrer to a petition in equity in a Probate Court under G. L. (Ter.

Ed.) c. 231A, inserted by St. 1945, c. 582, Section 1, wherein a man sought a binding declaration of his matrimonial status with a woman, who he contended was still his wife notwithstanding the fact that she had procured a divorce in Nevada which she contended and he denied was valid, and afterwards had married another man, also a respondent, it could not rightly be said as a matter of law that no actual controversy was presented for determination or that a declaratory decree establishing the marital status of the parties would not terminate the controversy.

Upon an appeal from a final decree sustaining a demurrer to a petition under G. L. (Ter. Ed.) c. 231A, inserted by St. 1945, c. 582, Section 1, for a declaration of a marital status and dismissing the petition without stating reasons under c. 231A, Section 3, this court, being of the opinion that the demurrer should have been overruled, did not deem it appropriate to exercise discretion by dismissing the petition on the mere averments thereof, although that question was open on the appeal without the case first being heard on the merits.

PETITION, filed in the Probate Court for the county of Essex on November 27, 1945.

The case was heard by Costello, J. A. H. Salisbury, 2d, for the petitioner, submitted a brief.

No argument nor brief for the respondents.

DOLAN, J. This is a petition filed in the Probate Court under the provisions of G. L. (Ter. Ed.) c. 231A, inserted by St. 1945, c. 582 Section 1, against the respondents Anna M. Hogan, also known as Anna Palumbo, and Frank Palumbo, both of "North Andover," "for a binding declaration of . . . [the petitioner's] status, in the light of the facts . . . set out [in the petition]." The case comes before us upon appeal by the petitioner from the decree entered by the judge sustaining the demurrer of the respondents and dismissing the petition.

Material allegations of the petition follow: The petitioner and the respondent Anna (hereinafter referred to as the respondent) were married at North Andover on June 27, 1928, and lived there together as husband and wife until January, 1943. On or about February 6, 1943, the petitioner filed a libel for divorce from the respondent in the Probate Court in which this proceeding was brought, alleging adultery on the part of his wife with one Frank Palumbo of Methuen. That libel was dismissed without prejudice at the request of the petitioner on or about May 26, 1943. On or about June 29, 1943, the respondent filed in the same court a libel for divorce from the petitioner, alleging cruel and abusive treatment, and "gross, wanton and cruel refusal and neglect to provide." By decree dated July 25, 1944, "the allegations of said libel were held not to have been sustained, its prayer for divorce was denied, and said libel was continued on the docket." On or about July 20, 1945, the respondent "began a residence" in Reno, Nevada, and on or about August 31, 1945, she caused to be filed in the Second Judicial District Court of Washoe County in Nevada a complaint alleging that she had been an actual bona fide resident of the State of Nevada for more than six weeks and that she had actually been domiciled in said Washoe County during said period, and praying for a decree of divorce from the petitioner. At her request the petitioner on or about September 9, 1945, signed a "so called `power of attorney,' authorizing some Nevada attorney unknown to him to appear for him in said divorce proceedings, and caused the same to be mailed on September 10, 1945, to . . . counsel of record for his said wife in said proceedings" (paragraph 4). On or about September 13, 1945, a decree was entered in the Second Judicial District Court of Washoe County purporting to grant a final and absolute decree of divorce to the respondent from the petitioner and "to restore both him and her `to the status of an unmarried person.'" On or about November 10, 1945, the respondent "went through a purported ceremony of marriage with said Frank Palumbo" at Kittery in the State of Maine, and she and said Palumbo now live together as husband and wife in North Andover. The petitioner further alleges that he "has for many years been, and now is, domiciled in this Commonwealth, and that he has been advised that his said wife has likewise continued to be domiciled here despite her sojourn in the State of Nevada above described; that his said wife's reason for establishing an alleged residence and domicil in said Nevada was solely so that she might obtain the decree described in . . . [paragraph 4 of the petition]; and that she returned to this Commonwealth immediately after the issuance of said decree, has since continued to live in this...