Marshall v. Marshall

• Decision Date: 24 June 1920
• Citation: 236 Mass. 248,128 N.E. 27
• Parties: MARSHALL v. MARSHALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 248

128 N.E. 27

MARSHALL

v.MARSHALL.

Supreme Judicial Court of Massachusetts, Middlesex.

June 24, 1920.

Report from Superior Court, Middlesex County; Franklin S. Hammond, Judge.

Petition for support of self and child by Ida F. Marshall, the wife, against Edgar A. Marshall, the husband. From a decree for the wife, defendant husband appealed to the superior court. On report to the Supreme Judicial Court. Case ordered to stand for further trial.

Respondent husband's first, second, fifth, and sixth requests for rulings of law were as follows:

‘1. Upon a petition brought under R. L. c. 153, § 33, and founded upon the allegations necessary to give the court jurisdiction under that section the probate court has no jurisdiction to make a decree under R. L. c. 153, § 37.

‘2. A petition brought under R. L. c. 153, § 33, gives to the respondent, because of the allegations necessary to support such a petition, no warning that remedy is to be sought under R. L. c. 153, § 37.’

‘5. Upon a petition brought under R. L. c. 153, § 33, and founded upon the allegations necessary to give the court power under that section the probate court has no power to make a decree under R. L. c. 153, § 37.

‘6. A petition brought under R. L. c. 153, § 33, gives to the respondent, because of the allegations necessary to support such a petition, no warning that remedy is to be sought under R. L. c. 153, § 37, and entering a decree under section 37 deprives the respondent of rights without due process of law.’

Ethelbert V. Grabill, of Boston, for appellant.

John M. Maloney, of Boston, for appellee.

BRALEY, J.

The appellate court correctly ruled that the petition was brought under R. L. c. 153, § 33, while the decree is in accordance with section 37. The question for decision therefore is whether the probate court had authority to enter the decree. The material allegations which the respondent was called upon to meet are, that the petitioner is his lawful wife; that he fails to support her; that she is living apart from him for justifiable cause; and ‘that there has been born to them the following children: Margaret Marshall, born March 13, 1905.’ The relief asked is, that the court will make such temporary and permanent orders as it deems expedient concerning her support, ‘and the care, custody and maintenance of said minor children.’ It appears from the recitals in the record that the petitioner failed to sustain the essential allegations, relating to her alleged right to separate support. Bucknam v. Bucknam, 176 Mass. 229, 57 N. E. 343,49 L. R. A. 735;Smith v. Smith, 154 Mass. 262, 28 N. E. 263;Everett v. Everett, 215 U. S. 203, 30 Sup. Ct. 70, 54 L. Ed. 158. But by section 37:

‘If the parents of minor children live separately, the probate court shall have the same power, upon the petition of either parent, to make decrees relative to their care, custody, education and maintenance, as relates to children whose parents are divorced; and shall determine which of the parents of such children shall be entitled to such custody in accordance with the law relative to the custody of children whose parents have been divorced.’

The respondent under our practice was not required to file an answer, and the issues being shown by the petition, he could not have been misled. We are of opinion that the petition is...