Madden v. Madden

• Decision Date: 21 April 1971
• Citation: 359 Mass. 356,269 N.E.2d 89
• Parties: Ann A. MADDEN et al., v. James L. MADDEN et al., Trustees, et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 89

269 N.E.2d 89

359 Mass. 356

Ann A. MADDEN et al., v. James L. MADDEN et al., Trustees, et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Feb. 2, 1971.

Decided April 21, 1971.

William G. McRae, Atlanta, for William C. Madden.

Daniel J. Fern, Hyannis, for Ann A. Madden.

Before TAURO, C.J., and SPALDING, CUTTER, SPIEGEL and BRAUCHER, JJ.

BRAUCHER, Justice.

William C. Madden (William) appeals from a decree on a petition in equity brought by Ann A. Madden (Ann) and a trustee for her under a separation agreement dated February 1, 1955. The petition sought modification and enforcement of a previous decree dated August 1, 1967, awarding Ann, as William's wife, separate support for herself and their three minor children. The other defendants are trustees under two trusts administered in Massachusetts, one established by William's father in 1923 (the M. L. Madden trust), and one established under the will of his mother by a codicil executed in 1942 (the Grace E. Madden trust). William's income as life beneficiary of the two trusts is about $52,000 a year, and the petition sought to hold his property in the trusts to respond to and be applied to the satisfaction of the decree to be rendered. William was not served with process, but appeared specially to contest the jurisdiction of the court and to protect his property interest in the trusts. The judge made a report of material facts, and the evidence is reported.

William and Ann were married in Massachusetts in 1949 and thereafter lived in Massachusetts. One child was born to them in 1950 and another in 1951. They separated in October, 1954, and entered into a separation agreement dated February 1, 1955. The separation agreement, made between Ann and William and their trustees, provided that Ann might live apart from William and gave custody of the two children to Ann; William promised to provide, tax free, $400 a month for her support and $150 a month for the support of each child, plus certain medical and educational expenses, and agreed that if without legal justification he failed to make payments by the fifth of each month he would give the trustees written authorization to make the payments directly to Ann.

In May, 1957, there was a conditional reconciliation; the parties lived together until December, 1957, and a third child was born to them in February, 1958. For almost six years after the last separation in December, 1957, the trustees of the M. L. Madden trust made the monthly payments provided in the separation agreement. In August, 1963, William and Ann orally agreed to modify the separation agreement to provide for the support of the third child, and the aggregate monthly payment was increased to $1,000. Monthly payments of $1,000 were made by the trustees until March 29, 1968.

In the fall of 1966, William was living in an apartment in Natick, Massachusetts. He told a Boston attorney that he wanted a divorce from Ann in order to marry a Mrs. Z. On November 25, 1966, he and the attorney flew to Atlanta, Georgia, to establish William's residence there as a basis for divorce. They met a Georgia attorney, rented a furnished apartment on the premises of the Georgia attorney for roughly $10 a week, opened a checking account in an Atlanta bank, arranged for telephone service, and flew back to Boston that evening. Since then William has spent some time in Atlanta and some time in Massachusetts. His checks from the trusts were deposited in a Natick bank until March, 1967, and in March William and Ann filed joint State and Federal tax returns for 1966, showing a Massachusetts address for William.

On May 3, 1967, Ann filed a petition against William for living apart for justifiable cause under G.L. c. 209, § 32. The petition alleged that William had moved to Georgia on or about December 1, 1966, and that he intended to seek a Georgia divorce in violation of the separation agreement. William was served by publication; a copy of the citation sent to him at an Atlanta address was returned undelivered. On June 9, 1967, he entered a special appearance; he made a special plea to the jurisdiction, which was overruled.

On July 2, 1967, William filed a petition for divorce in Georgia on the ground of desertion, alleging as required by Georgia law that he had been a bona fide resident of Georgia for six months. The petition failed to list the three minor children of the parties as required by Georgia law, and failed to mention Ann's petition filed May 3, 1967. Ann was served by publication and by mail, but did not appear in the Georgia suit. On July 28, 1967, Mrs. Z purchased a home in Barnstable County, Massachusetts, and William stayed there for a few days in July.

On August 1, 1967, after hearing, a decree was entered on Ann's petition. The decree determined that she was living apart from William for justifiable cause, awarded her custody of the three minor children, and made provisions 'in accordance with a written agreement between the parties dated February 1, 1955, as amended,' that he pay her $500 a month for her support and $166.67 a month for each of the three children, plus their educational expenses. No appeal was taken from that decree.

On September 8, 1967, a decree of divorce was granted to William in Georgia. He returned to Massachusetts and stayed here from September 8 to September 15, 1967. On September 15, he and Mrs. Z went to Georgia and were married there.

In April, 1968, Ann filed her present petition. A plea to jurisdiction and motion to dissolve a temporary restraining order and to dismiss the petition were denied in June, 1968. After hearing, a final decree was entered April 22, 1969. The judge found that William did not have a bona fide residence in Georgia for the required period, and that his failure to list the names of the children in his divorce petition was intentional and for the purpose of deceiving the Georgia court, and decreed that the Georgia divorce decree was not entitled to be accorded full faith and credit or to be recognized in this Commonwealth. The decree also directed William to appoint a successor trustee under the separation agreement, held that M. L. Madden trust to respond to and be applied to the satisfaction of the payments for the support of Ann and the three children, modified the decree of August 1, 1967, accordingly, and provided that the Grace E. Madden trust may not be held to respond to and be applied to the satisfaction of the support payments.

William now claims (1) that the decree of August 1, 1967, requiring him to pay Ann certain sums of money, was void because he was a nonresident who was not served with process and did not appear generally; (2) that the separation agreement was a bar to the present suit; (3) that the petition in the present suit fails to allege a basis for relief cognizable in equity, that there was an adequate remedy at law, and that there was no proof that any debt was owed when the petition was filed; (4) that the judge erred in failing to give full faith and credit to the Georgia divorce decree; and (5) that it was error to enter a decree against him personally, directing him to appoint a successor trustee under the separation agreement.

1. The decree of August 1, 1967. Ann's 1967 petition was filed under G.L. c. 209, § 32. 'It is plain that the court had jurisdiction over the petition, at least so far as concerned custody of the minor children and direction for their personal treatment. * * * The court doubtless had jurisdiction, also, over the relation of the petitioner to the status of her marriage with the respondent so far as necessary to protect her as a resident of this Commonwealth.' Schmidt v. Schmidt, 280 Mass. 216, 218--219, 182 N.E. 374, 375. But it is contended that 'a valid personal judgment cannot be rendered against a nonresident defendant who is not served with process within a State and who does not appear' and that 'the part of the decree operating as a personal judgment against the respondent (that is ordering him to pay money to the petitioner * * *) was not warranted because the probate court had not acquired jurisdiction to that end over the respondent.' Id. at 220--221, 182 N.E. at 376. See Mosher v. Mosher, 293 Mass. 105, 106, 199 N.E. 301; Wiley v. Wiley, 328 Mass. 348, 351, 103 N.E.2d 699. But in the Schmidt case, supra, the nonresident husband appeared specially and filed a motion to dismiss the petition for want of jurisdiction. The motion was denied, the respondent appealed, and this court reversed.

'Every court confronted with a law suit of any kind is under both the necessity and the duty of determining whether or not it has jurisdiction to entertain the suit, and it necessarily has jurisdiction to make this determination. If it determines erroneously that it has jurisdiction, its own erroneous determination does not give it any true jurisdiction of the case as a whole, and its judgment is in general void and therefore subject to collateral attack, but in accordance with principles which also form the basis for the familiar doctrine or res judicata the judgment may, after it becomes final, be binding upon the parties to the suit although not upon others, and the rights of parties may therefore be limited to appeal, writ of error, petition to vacate, or other methods of direct attack.' Old Colony Trust Co. v. Porter, 324 Mass. 581, 586, 88 N.E.2d 135. See Dennis v. Dennis, 337 Mass. 1, 4, 147 N.E.2d 828. These principles are properly applicable to an objection to jurisdiction over the person. Restatement: Judgments, § 9, illustration 1, § 20, comment b. Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 524--526, 51 S.Ct. 517, 75 L.Ed. 1244; American Sur. Co. v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231; Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct. 44, 84 L.Ed. 85; Durfee v. Duke, 375 U.S. 106, 111--112, 84 S.Ct. 242, 11 L.Ed.2d 186. Compare Stone Leather Co. v. Henry...