Parker v. Parker
| Decision Date | 01 March 1912 |
| Parties | PARKER v. PARKER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Everett C. Bumpus, Clarence W. Rowley, and Lewis Marks, for libelant.
Clifford H. Frost and Arthur L. Doggett, for respondent.
This is a petition for alimony brought after the entry of a decree absolute for divorce. Service of the original libel was by publication and mailing, the libelee then being a nonresident of this commonwealth. He received the notice, but did not appear to contest the libel. His property was not attached. The marriage was solemnized in this commonwealth. At the time this petition for alimony was filed the libelee had become a resident of this commonwealth, and he was served personally with the order of notice upon this petition. He contests the jurisdiction of the court. The only question presented is whether, after a divorce absolute upon proceedings against a nonresident who has not appeared in the original suit, the superior court has authority to decree alimony, provided personal service is made of a petition therefor.
Courts of this commonwealth cannot grant alimony except and so far as authorized by the statutes. Davol v. Davol, 13 Mass. 264; Shannon v. Shannon, 2 Gray, 285; Page v. Page, 189 Mass. 85, 87, 75 N.E. 92, 4 Ann. Cas. 296. It has been held that relief in the nature of alimony cannot be afforded except as an incident in connection with a divorce. Adams v. Adams, 100 Mass. 365, 1 Am. Rep 111. The statute, R. L. c. 152, § 30, provides that 'upon a divorce, or upon petition at any time after a divorce, the superior court may decree alimony to the wife, or a part of her estate, in the nature of alimony, to the husband.' This language in unequivocal terms authorizes the granting of alimony, although none was asked for in the original libel. Burrows v. Purple, 107 Mass. 428, 433. This language also plainly permits that the alimony may be asked at a time after an affirmative decree upon the original libel. It does not in terms make jurisdiction to grant the alimony dependent upon the jurisdiction existing at the time a divorce was granted. There may be divorce in favor of a resident of this commonwealth against a nonresident under various circumstances. See R. L. c. 152, §§ 4, 5 and 8.
It is strongly urged, however, that when the statute is read in the light of its history and its original enactment it confers jurisdiction to grant alimony only in cases in which, at the time of the decree for divorce, the court could have granted alimony. If that contention is sound, the respondent must prevail, for it is plain that the court then had no jurisdiction to grant alimony because there was no personal service upon the libelee and no attachment of his property on the original libel, and he did not appear and was at that time a nonresident. No decree for alimony could be binding against the libelee upon these facts. The court at that time had no jurisdiction of the defendant, and had no authority to enter a judgment for money against him. Pennoyer v Neff, 95 U.S. 714, 24 L.Ed. 565; Haddock v. Haddock, 201 U.S. 562, 567, 26 S.Ct. 525, 50 L.Ed. 867; Twining v. New Jersey, 211 U.S. 78, 110, 29 S.Ct. 14, 53 L.Ed. 97.
Whether this position of the respondent is tenable depends upon a critical examination of our statutes on the subject. The first statute authorizing a decree for alimony after the entry of a decree for divorce was St. 1853, c. 23. By section 1 of this act, power was conferred 'to make at any time upon petition or proper process therefor any such decree of or respecting alimony * * * as the court might have made in the original suit.' Substantially the same language was retained in Gen. St. c. 107, § 48, while the language which was adopted in Pub. St. c. 146, § 36, is the same as that in R. L. c. 152, § 30, quoted above.
In 1853 the authority to grant alimony was somewhat limited. The causes for absolute divorce from the bond of matrimony were adultery, impotency or sentence in the state prison, jail or house of correction for a period of seven years or more (Rev St. 1836, c. 76, § 5), utter desertion unconsented to for five consecutive years (St. 1838, c. 126), and uniting with a religious sect, by whose belief the relation of husband and wife was void, and continuing to live with such sect for three years (St. 1850, c. 100), while a divorce from bed and board might be granted for extreme cruelty or utter desertion, and on the libel of the wife, when the husband, being of sufficient ability, grossly, wantonly and cruelly refused or neglected to supply for her suitable maintenance (Rev. St. 1836, c. 76, § 6). There were certain statutes providing for restoration to the wife upon dissolution of marriage of her separate property to which, under the law in force at that time, the husband had become entitled upon the marriage. Rev. St. 1836, c. 76, §§ 27, 28, 29, 30. Unlimited alimony could be granted to the wife, however, only upon a divorce granted upon her libel for the adultery, impotency, uniting with a sect which believed marriage void and sentence to a penal institution, of the husband. Rev. St. 1836, c. 76, § 31; St. 1844, c. 129; St. 1850, c. 100, § 3. But upon divorce from bed and board for the causes authorized therefor alimony could be granted only in the event that the estate and effects of the wife restored to her under Rev. St. 1836, c. 76, §§ 27, 28, 29, and 30, were insufficient for her support. Rev. St. c. 76, § 31. By St. 1857, c. 228, utter desertion for five consecutive years and a living separately for five years after a divorce from bed and board were added to the causes in which unrestricted alimony might be granted. In this respect the law remained...
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