Morrill v. Tong

• Decision Date: 13 September 1983
• Citation: 453 N.E.2d 1221,390 Mass. 120
• Parties: Judith MORRILL v. Donald W. TONG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1221

453 N.E.2d 1221

390 Mass. 120

Judith MORRILL v. Donald W. TONG.

Supreme Judicial Court of Massachusetts Bristol.

Argued May 6, 1983.

Decided Sept. 13, 1983.

Barbara A. Lenk, Boston, for defendant.

Bruce Bendiksen, New Bedford (M. David Scheinman, New Bedford, with him) for plaintiff.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant, Donald W. Tong, appealed to the Appeals Court from a judgment and order of the Probate and Family Court for garnishment of his Navy pension for child support. We transferred the case to this court on our own motion. ¹ The appeal presents the questions whether the Probate Court erred in asserting personal jurisdiction over the defendant, a resident of Spain, and whether the court's exercise of quasi-in-rem jurisdiction to reach the defendant's military pension was impermissible. We reverse the judgment of the Probate Court.

The facts are not disputed by the parties. The defendant and the plaintiff, Judith Morrill, formerly Judith Tong, were married in Newport, Rhode Island, on January 20, 1962. The defendant was at that time in the United States Navy; he had formerly been domiciled in New York State. The plaintiff's former domicil was Massachusetts. From the time of their marriage until May, 1962, the couple resided in and was domiciled in Massachusetts. In May, 1962, they moved to Ohio for a brief interval, and then to the defendant's mother's home in New York. The couple's first child was born in Camden, New York, on August 25, 1962. At some time in 1962 the defendant reenlisted in the Navy, and, in November of that year, the couple obtained naval housing in Newport, Rhode Island, where their second child was born on June 27, 1964.

Between July, 1965, and June, 1970, the couple lived in California, where the defendant was stationed during that time. In June, 1970, they returned to Massachusetts for approximately one month. In July, 1970, they purchased a home in Bristol, Rhode Island, in which they lived until the time of their separation in January, 1972. In that year the plaintiff filed an action for divorce in the Rhode Island Family Court. The defendant generally appeared through counsel in the divorce proceeding. A final decree of divorce was entered by the Rhode Island court on May 30, 1973.

By the terms of the decree, the plaintiff was awarded custody of the two children of the marriage, and the defendant was granted reasonable visitation rights. The plaintiff waived alimony, and the defendant was ordered to pay to the plaintiff the sum of $220 a month for the support of the minor children, and to maintain his Navy identification card for the benefit of the children. Subsequent to the entry of the interlocutory decree, the defendant authorized the director of the Navy Family Allowance Activity, located in Cleveland, Ohio, to send the sum of $220 a month to the plaintiff at her current address. The plaintiff was to notify the director of any change in her address.

In November, 1976, the plaintiff and the children moved from Rhode Island to Dartmouth, Massachusetts. The plaintiff continued to receive monthly support payments from the Navy Family Allowance Activity at her Massachusetts address until June, 1979, when the defendant instructed the director to discontinue the payments. On January 30, 1980, the plaintiff petitioned the Probate Court for care, custody, education, and maintenance pursuant to G.L. c. 208, § 29, ² and sought an order to the Department of the Navy to divert from the defendant's pension an amount equal to the arrearages on support payments from June, 1979, and $220 a month thereafter until the children reached majority, ³ and such other relief as the court deemed just and proper.

The defendant specially appeared and moved to dismiss the action pursuant to Mass.R.Dom.Rel.P. 12(b)(2) and the New Uniform Practices of Probate Courts of Massachusetts, VII, alleging that the court lacked personal jurisdiction over him. ⁴ The motion was denied and the defendant thereafter filed an answer to each of the paragraphs of the complaint, reciting as affirmative defenses: "1. This Court lacks personal jurisdiction over Defendant ... who resides in Palma De Majorca, Spain. 2. Plaintiff ... has intentionally and continuously alienated the children from their father and has intentionally and continuously deprived him of the affection and companionship of his children. Plaintiff ... comes into this Court with unclean hands." The defendant prayed that the complaint be dismissed and that the court "[o]rder such other relief as [it] shall deem just and proper." The case proceeded to trial, at which time the defendant renewed his motion to dismiss. The trial judge, who had not passed upon the pretrial motion, heard the argument of both parties and took the motion under advisement. At the same time, the judge requested the parties to file an agreed statement of facts pending his decision on the motion. The defendant also filed a motion to report the case in accordance with Mass.R.Dom.Rel.P. 64. On February 16, 1982, the judge denied the defendant's motions and ordered that his military pension be garnished to pay to the plaintiff an arrearage of $7,040 and to continue monthly support payments of $220.

The defendant submits that the Probate Court judge erred in concluding (1) that the defendant waived his defense of lack of personal jurisdiction, (2) that the defendant's military pension was subject to the court's exercise of quasi-in-rem jurisdiction, and (3) that the defendant had sufficient contacts with the Commonwealth to support the assertion of personal jurisdiction over him. The plaintiff argues that the judge's conclusions were proper in this case, and further claims that, under Mass.R.Dom.Rel.P. 12(g) and 12(h)(1), the defendant has waived the defense of lack of quasi-in-rem jurisdiction by not specifically pleading that defense in his pretrial motion or answer to the complaint.

1. Waiver of the defense of lack of jurisdiction. We turn first to the plaintiff's claim that the defense of lack of quasi-in-rem jurisdiction has been waived. The defendant's motion to dismiss, renewed before a second judge, and his answer to the complaint asserted the defense of lack of personal jurisdiction. A timely motion to dismiss an action pursuant to Mass.R.Civ.P. 12(b)(2), 365 Mass. 754 (1974), can embrace the defense of lack of jurisdiction over the interest of the defendant in property which may be located here. See J.W. Smith & H.B. Zobel, Rules Practice §§ 12.4 n. 27, 12.9 (1974); 5 C.A. Wright & A.R. Miller Federal Practice and Procedure § 1351 (1969) (commenting on Fed.R.Civ.P. 12[b] ); Fish v. Bamby Bakers, Inc., 76 F.R.D. 511, 513 (N.D.N.Y.1977). Here the motion to dismiss and answer did not set forth any particular assertions respecting that portion of the complaint which sought to have the defendant's military pension garnished, but maintained that the defendant's contacts with Massachusetts were insufficient to support the assertion of jurisdiction over him. During oral argument before the trial judge, however, defense counsel supplied the court with a memorandum of applicable law and argued that the court lacked in personam and quasi-in-rem jurisdiction to order the pension garnished. ⁵ In these circumstances, the omission of specific reference to quasi-in-rem jurisdiction in the written pleadings did not operate as a waiver of that defense. The court was sufficiently informed of the bases of the defendant's challenges to its jurisdiction when the motion to dismiss was taken under advisement.

The judge viewed the defendant's submission of an answer to the merits of the complaint, filed after the denial of his original motion to dismiss the action for lack of jurisdiction, as a waiver of that defense. Under our current rules of practice, "[n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion." Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). See Ross v. Ross, 371 Mass. 439, 443 n. 2, 358 N.E.2d 437 (1976). Further, a defendant who has unsuccessfully challenged the court's jurisdiction over him may proceed to the merits without waiving his right to appellate review of the question of jurisdiction. See J.W. Smith & H.B. Zobel, supra § 12.9; Walling v. Beers, 120 Mass. 548, 550 (1876). See also Cheshire Nat'l Bank v. Jaynes, 224 Mass. 14, 19-20, 112 N.E. 500 (1916); 93 A.L.R. § 1302 (1934). In the instant case, the judge based his finding of waiver on the defendant's second "affirmative defense," coupled with the prayer for such other relief as the court might deem just and proper. The judge concluded that the defendant had, in effect, "waived any plea to the jurisdiction and [had] appeared generally and thereby submitted to the power and jurisdiction of this Court." ⁶ We do not agree.

The judge relied, as does the plaintiff on appeal, upon decisions rendered by this court prior to our adoption of the Rules of Civil Procedure. 365 Mass. 730 (1974). ⁷ In the instant case, the defendant's "affirmative defense," while alleging alienation of the children and deprivation of their companionship, concluded with the words: "Plaintiff ... comes into this Court with unclean hands." This language cannot be viewed as a voluntary submission to the judgment of the court of one of the principal issues in the suit. Contrast Buckley v. John, 314 Mass. 719, 51 N.E.2d 317 (1943). We read the "affirmative defense" as a whole as resisting the invocation of the court's power by this plaintiff. See Fisher v. Fisher, 349 Mass. 675, 677, 212 N.E.2d 222 (1965). See also MacCormac v. Flynn, 313 Mass. 547, 549, 48 N.E.2d 24 (1943). ⁸

In ruling that the defendant submitted to the jurisdiction of the court, the judge also relied upon our pre-rules decision in Leffler v. Todd, 316 Mass. 227, 55 N.E.2d 767 (1944). It is not necessary for us to...