Kisley v. Kisley

• Decision Date: 05 May 1948
• Citation: Kisley v. Kisley, 322 Mass. 676, 79 N.E.2d 287 (Mass. 1948)
• Parties: KISLEY v. KISLEY.
• Court: Supreme Judicial Court of Massachusetts

322 Mass. 676

79 N.E.2d 287

KISLEY

v.KISLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

May 5, 1948.

Appeal from Probate Court, Norfolk County; J. F. Reynolds, Judge.

Suit by Victor E. Kisley against Olive E. (McFarland) Kisley for annulment of marriage.From decree dismissing his libel, the libellant appeals.

Decree modified and, as so modified, affirmed.

Before QUA, C. J., and DOLAN, RONAN, WILKINS and SPALDING, JJ.

M. S. Heaphy, of Boston, for libellant.

A. R. Lucid, G. P. Love, Jr., and H. J. McCusker, all of Weymouth, for libellee.

WILKINS, Justice.

The libellant appeals from a decree dismissing his libel for annulment of marriage.The evidence is not reported, but the judge made a voluntary report of the material facts found by him, which appears on its face to be a report of all the material facts upon which he based his decree.G.L.(Ter.Ed.)c. 215, § 11, as amended bySt.1947, c. 365, § 3;Birnbaum v. Pamoukis, 301 Mass. 559, 562, 17 N.E.2d 885;Druker v. Druker, 308 Mass. 229, 230, 31 N.E.2d 524;Turner v. Morson, 316 Mass. 678, 680, 681, 57 N.E.2d 18;Skerrett v. Hartnett, 322 Mass. 452, 78 N.E.2d 10.

No point of jurisdiction has been raised, but it is our duty to consider it of our own motion.Eaton v. Eaton, 233 Mass. 351, 364, 124 N.E. 37, 5 A.L.R. 1426;Commonwealth v. Andler, 247 Mass. 580, 582, 142 N.E. 921;Holt v. Holt, 253 Mass. 411, 414, 149 N.E. 40;Golden v. Crawshaw, 302 Mass. 343, 344, 19 N.E.2d 67.A libel for annulling a marriage must be brought under G.L.(Ter.Ed.)c. 207, § 14, of which the part now material is: ‘Upon proof of the validity or nullity of the marriage, it shall be affirmed or declared void by a decree of the court, and such decree of nullity may be made although the marriage was solemnized out of the commonwealth, if at that time and also when the libel was filed the libellant had his domicil in the commonwealth, or if he has resided in this commonwealth for five years last preceding the filing of said libel * * *.’

The libel, which was dated January 29, 1947, and was filed February 1, 1947, describes the libellant as ‘formerly of East Braintree, County of Norfolk, and now of Hartford, Connecticut,’ and alleges that he was married on July 12, 1944, at Bethesda, Maryland, to the libellee, ‘whose present place of residence is in East Braintree, Norfolk County’; that they lived together as husband and wife at Revere, Winthrop, Weymouth, and East Braintree in this Commonwelath; that they last lived together at East Braintree; and that the ‘libellant has lived in this Commonwealth continuously’ from October 20, 1944, until January 20, 1947.The libellant is bound by these allegations in his pleadings.G.L.(Ter.Ed.)c. 231, § 87.Sullivan v. Ashfield, 227 Mass. 24, 28, 116 N.E. 565;Davenport v. Squibb, 320 Mass. 629, 634, 70 N.E.2d 793.He in effect has alleged that he ceased to be domiciled in this Commonwealth beginning ...