Royal v. Royal
| Decision Date | 23 September 1949 |
| Parties | EDNA E. ROYAL v. HAROLD O. ROYAL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 5, 1949.
Present: QUA, C.
J., LUMMUS, RONAN SPALDING, & WILLIAMS, JJ.
Probate Court Revocation of decree. Equity Jurisdiction, Bill of review. Judgment. Marriage and Divorce, Foreign divorce. Husband and Wife, Separate support.
A decree of a Probate Court, entered in favor of the petitioner after a hearing on the merits in a proceeding for separate support wherein the respondent set up as a bar a decree of divorce obtained by the petitioner in another State and the petitioner relied on evidence which afforded adequate basis for a finding that such divorce decree was invalid because jurisdictional requirements had not been satisfied as a matter of fact, impliedly determined that the foreign divorce was invalid.
The respondent in a proceeding for separate support, who had not appealed from a decree which, after a hearing, impliedly determined that a foreign divorce granted to the petitioner was invalid, had no standing thereafter to maintain a petition for revocation of the decree on the ground that the divorce was valid.
The mere fact that an interpretation of the law by this court allowing foreign divorces to be attacked here on jurisdictional grounds in certain circumstances, relied on by a Probate Court here in entering a decree determining that a foreign divorce was invalid for lack of jurisdiction, afterwards was held by the Supreme Court of the United
States in another proceeding to have been erroneous, was not "new matter arising after the entry of the" Probate Court decree which would have warranted maintenance of a petition, in the nature of a bill of review, to revoke that decree.
PETITION, filed in the Probate Court for the county of Norfolk on March 28 1946, under G. L. (Ter. Ed.) c. 209, Section 32, for separate support.
The respondent filed an answer setting up two defences: (1) that a marriage of the petitioner to the respondent in Virginia was void, and (2) that the petitioner had obtained a decree of divorce from him in Florida on February 21, 1945.
The case was heard by Davis, J., and the decree of December 19, 1946, described in the opinion, was entered. The respondent did not appeal from that decree.
A petition of the respondent Harold filed on January 29, 1947, to vacate the decree of December 19, 1946, and thus reopen the question of the validity of the marriage of the parties in Virginia was dismissed and its dismissal was affirmed by the decision of this court reported in 322 Mass. 662.
On May 19, 1948, and on June 28, 1948, respectively, the petitioner Edna filed petitions for an adjudication that the respondent Harold was in contempt and for a modification of the decree of December 19, 1946. The respondent Harold filed a plea in bar to the petition for modification and moved to dismiss both petitions on the ground that the petitioner Edna was barred by the divorce decree in the Florida court. On July 20, 1948, he filed, on the same ground, a petition for revocation of the decree of December 19, 1946. These three petitions were heard together by Davis, J. The only evidence introduced at this hearing respecting the Florida divorce proceeding was a transcript of the evidence taken at the original hearing preceding the decree of December 19, 1946, and a certified copy of the proceeding in the Florida court.
The judge of the Probate Court under G. L. (Ter. Ed.) c. 215, Section 13, reserved and reported the matters heard by him at the later hearing.
J. E. Angoff, (S.
M. Lieberman with him,) for the petitioner.
G. L. Rabb, (C.
P. Huse, Jr., & A.
A. Albert with him,) for the respondent.
About September 1, 1939, shortly after a divorce obtained in Massachusetts by Anna E. Royal against Harold O. Royal had become absolute on July 28, 1939 (G. L. [Ter. Ed.] c. 208 Section 21), and during the period of two years after the decree became absolute during which Harold O. Royal was prohibited from marrying again by G. L. (Ter. Ed.) c. 208, Section 24, Harold O. Royal and Edna E. Smith, both residents of Massachusetts, went to Stafford County, Virginia, for the purpose of marrying each other, were married there on September 2, 1939, and immediately returned to Massachusetts, intending to live here as husband and wife during the remainder of said period of two years and afterwards.
By G. L. (Ter. Ed.) c. 207, Section 10, "If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth." The marriage is void if either party to it goes into the other jurisdiction for the purpose of contracting a marriage that could not have been entered into here. Levanosky v. Levanosky, 311 Mass. 638 , 641. But by G. L. (Ter. Ed.) c. 207, Section 6, if "the parties . . . live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief . . . that the former marriage had been annulled by a divorce . . ., they shall, after the impediment to their marriage has been removed by the . . . divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment." This section applies to a new marriage contracted within the two year period after a former decree absolute for divorce, during which the libellee named in such decree was prohibited from marrying again. Vital v. Vital, 319 Mass. 185 , 189.
The question of the validity of the Virginia marriage was raised in the Probate Court for Norfolk County on the petition of Edna E. Royal against Harold O. Royal for separate support, in which a decree was entered in favor of Edna E. Royal on December 19, 1946, from which no appeal was taken. In entering that decree the Probate Court impliedly found that Edna E. Royal acted in good faith in living with Harold O. Royal as his wife until the two year period during which he was prohibited from marrying again expired on July 28, 1941, and afterwards until sometime in 1944. The question of the validity of the Virginia marriage was again raised upon a petition filed by Harold O. Royal on January 29, 1947, to vacate the decree of December 19, 1946, which petition was dismissed by the Probate Court. The decision of this court on May 3, 1948, reported in Royal v. Royal, 322 Mass. 662, affirming the dismissal of that petition, left the decree of December 19, 1946, in full force, and established the fact that Edna E. Royal had become the lawful wife of Harold O. Royal.
The case is now before us on a second petition filed by Harold O. Royal on July 20, 1948, to revoke the same decree of December 19, 1946, and on two petitions filed by Edna E. Royal, one for contempt of that decree and the other to modify it by ordering additional payments. The petition by Harold O. Royal to vacate the decree of December 19, 1946, was based upon the ground, already raised by him in defence to the petition for separate support upon which the decree of December 19, 1946, was based, that Edna E. Royal obtained a decree of divorce from Harold O. Royal in the Circuit Court of Polk County, Florida, in February, 1945. After hearing, the Probate Court reserved and reported the three petitions under discussion for the determination of this court, under G. L. (Ter. Ed.) c. 215, Section 13. Dunlop v. Claussen, 313 Mass. 715 .
Of course if the Florida divorce was valid, it terminated the marriage, and Harold O. Royal under our law is no longer liable to a decree for separate support. Rosa v. Rosa, 296 Mass. 271, 272. Cohen v. Cohen, 319 Mass. 31 , 34. Shain v. Shain, ante, 603.
The facts respecting the divorce are the following. Edna E. Royal went to Florida, and brought a suit for divorce there, alleging that she had been a bona fide resident of the State of Florida for more than ninety days immediately preceding the filing of the suit for divorce. Harold O. Royal filed an answer, admitting her allegations as to residence in Florida, waiving notice of hearing, and consenting that the suit be heard ex parte. It does not appear that he went to Florida, or was represented by counsel in the Florida court.
The jurisdiction of the courts of a State to grant a divorce depends...
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