Schmidt v. Schmidt

• Decision Date: 14 September 1932
• Citation: 182 N.E. 374,280 Mass. 216
• Parties: SCHMIDT v. SCHMIDT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 216

182 N.E. 374

SCHMIDT

v.SCHMIDT.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 14, 1932.

Appeal from Probate Court, Middlesex County; C. N. Harris, Judge.

Petition by Mabel J. Schmidt against Hartman F. Schmidt. Respondent's motion to dismiss the petition for want of jurisdiction was denied, decree for petitioner was entered, and respondent appeals.

Reversed, with directions.

R. Wait, of Boston, for appellant.

J. H. Gibride, of Lowell, for appellee.

RUGG, C. J.

This petition brought by the wife, described as of Lowell in this commonwealth, against her husband, described as of Unionville, Connecticut, alleges that her husband fails without just cause to furnish her suitable support and has deserted her, and that she is living apart from him for justifiable cause. Its prayers are for custody of minor children of the parties and for suitable support of the children and the wife. Service of the petition was made by mailing copy of the citation by registered mail to the respondent, as evidenced by affidavit in due form and by return registry receipt signed by the respondent. The respondent admits in his brief that he received a copy of the citation by mail. It does not appear that any other service has been made upon the respondent or that there has been attachment of his proprty. The respondent appeared specially and filed a motion to dismiss the petition for want of jurisdiction. The motion was denied and the respondent appealed. After hearing upon the petition, decree was entered that the petitioner for justifiable cause is actually living apart from her husband and awarding custody of the minor children to the petitioner and ordering the respondent to pay to the petitioner toward the support of herself and the minor children specified sums and $100 on the first day of every month, and that ‘he continue to provide a home for his said wife and his said minor children at No. 68 Oakland Street in said Lowell until the further order’ of the court, with provision that the respondent shall have opportunity to see and be with his children at reasonable times and places. The respondent, continuing his special appearance, appealed from this decree on the ground of want of jurisdiction over him and his children. There was no request for a finding of material facts by the trial judge and no finding was made. The record consists simply of the petition, the order of notice and return of service, the motion to dismiss and order denying same, the decree, and the appeals of the respondent.

The petition is brought under G. L. c. 209, § 32, as amended by St. 1921, c. 56. So far as here relevant, its provisions are: ‘If a husband fails, without justifiable cause, to provide suitable support for his wife, or deserts her, or if the wife, for justifiable cause, is actually living apart from her husband * * * the probate court may * * * upon the application of the * * * wife * * * make * * * orders relative to the support of the wife and the care, custody and maintenance of their minor children, may determine with which of their parents the children * * * shall remain and may, from time to time * * * revise and alter such order or make a new order or decree. * * *’

[4] The respondent by his motion to dismiss challenged the jurisdiction of the court to entertain the petition. He has not argued that point before this court. 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. Probate courts have general jurisdiction over subjects committed to them by statute and therefore it must be assumed, in the absence of anything to the contrary in the record, that all jurisdictional facts were proved. Farnsworth v. Goebel, 240 Mass. 18, 132 N. E. 414. The decree of the court was a final adjudication of all matters set forth in the petition. Harrington v. Harrington, 189 Mass. 281, 75 N. E. 632. The final order of the decree to the effect that the respondent shall ‘continue to provide a home’ for his wife and children at a specified number on a named street in Lowell of itself imports that their residence, if not also their domicil, was within the commonwealth. Probate courts have jurisdiction over children actually living within the commonwealth and needing the suervisory care of a court of domestic relations. G. L. c. 209, § 37; Stearns v. Allen, 183 Mass. 404, 67 N. E. 349,97 Am. St. Rep. 441;Clark v. Clark, 191 Mass. 128, 77 N. E. 702;Martin v. Gardner, 240 Mass. 350, 134 N. E. 380;Gallup v. Gallup, 271 Mass. 252, 257, 171 N. E. 464;Hersey v. Hersey, 271 Mass. 545, 552, 171 N. E. 815, 70 A. L. R. 518;Wakefiled v. Ives, 35 Iowa, 238;Kenner v. Kenner, 139 Tenn. 211, 221-223, 201 S. W. 779, L. R. A. 1918E, 587;Id., 139 Tenn. 700, 202 S. W. 723, L. R. A. 1918E, 587. In these circumstances the presumption from the record as a whole, including the decree, is that the domicil of the petitioner was found to be within the commonwealth. This principle was recognized in Glass v. Glass, 260 Mass. 562, 565, 157 N. E. 621, 53 A. L. R. 1157, although the facts in that case required a different result. 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. G. L. c. 209, § 32. See Perkins v. Perkins, 225 Mass. 82, 113 N. E. 841, L. R. A. 1917B, 1028;Friedrich v. Friedrich, 230 Mass. 59, 119 N. E. 449;Haddock v. Haddock, 201 U. S. 562, 579, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1. The motion to dismiss, therefore, was denied rightly.

Arguments of counsel have been addressed exclusively to the question whether the portion of the decree was valid wherein the respondent, a nonresident of the commonwealth not served with process within the commonwealth and having appeared not generally but only specially to protect his rights, was ordered to make money payments to the petitioner. This part of the decree is directed against the respondent personally. It is designed to enforce the legal duty of the husband to provide for the support of his wife and children. A decree upon a petition for separate support under the governing statute in this particular stands upon the same footing as a decree for the payment of alimony. In each instance the object of the decree is to enforce a financial obligation of the husband founded on a breach of his duties arising from the marriage. This part of the decree is founded on the status of marriage. It is designed to afford relief to the wife by a mandate of the court operating on a delinquent husband. This is the nature of alimony. Rollins v. Gould, 244 Mass. 270, 138 N. E. 815;McSherry v. McSherry, 113 Md. 395, 400, 77 A. 653,140 Am. St. Rep. 428. It is equally the nature of an order for separate support. Bucknam v. Bucknam, 176 Mass. 229, 57 N. E. 343,49 L. R. A. 735.

Since the decision of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, it has been the law established under the Fourteenth Amendment to the Federal Constitution and binding on all state courts 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, although his property within the state may be...