Shain v. Shain
| Decision Date | 16 September 1949 |
| Parties | ROSE W. SHAIN v. MARK SHAIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 3, 1949.
Present: QUA, C.
J., LUMMUS SPALDING, & WILLIAMS, JJ.
Marriage and Divorce, Jurisdiction, Foreign divorce. Jurisdiction, Divorce proceedings. Domicil. Husband and Wife, Separate support. Estoppel. Constitutional Law, Full faith and credit. Words "Without delay."
It is a jurisdictional prerequisite to any decree for separate support under G. L. (Ter. Ed.) c. 209, Section 32, that the parties to the proceeding be married; such a proceeding could not be maintained against a man who had been granted a valid divorce from the petitioner by a court in the State of Nevada.
A wife was not estopped to attack collaterally in Massachusetts the jurisdiction of a Nevada court to grant a divorce against her where she was served in Massachusetts by substituted service in the Nevada proceeding but did not appear nor participate in any way in that proceeding. Compliance with the jurisdictional residence requirements for divorce of
Nevada Compiled Laws (1929), Section 6405, and Nevada Compiled Laws 1931-1941, Supplement, Section 9460, was shown by findings that a husband, after acquiring a domicil in Nevada, remained physically present there for more than six weeks, that thereupon, at the suggestion of his physician and for the purpose of improving his health, which was poor, he left Nevada and travelled for more than seven months and that he then returned to Nevada and about two weeks later commenced a proceeding for divorce, and by a conclusion, not inconsistent with the subsidiary findings, that his absence from Nevada "was expedient, and that on and after . . . [the date of his departure following his six weeks residence he] intended in good faith to return to . . . [Nevada] without delay, and to continue his residence therein."
PETITION, filed on December 19, 1931, in the Probate Court for the county of Suffolk and on December 21, 1938, transferred to the Probate Court for the county of Norfolk under G. L. (Ter. Ed.) c 215, Section 8A.
The case was heard by Reynolds, J.
J. P. Sullivan, for the petitioner.
F. W. Mansfield, (A.
Hurwitz with him,) for the respondent.
This is a petition for separate support under G. L. (Ter. Ed.) c. 209 Section 32. The husband pleaded to the jurisdiction a decree of divorce granted to him in Nevada on August 12, 1941. The judge of probate sustained the plea and dismissed the petition. The case is here on the wife's appeal, with detailed findings of material facts by the judge, including exemplified copies of the Nevada proceedings, but without the evidence heard by the judge here.
Under our law it is a jurisdictional prerequisite to any decree for separate support under Section 32 that the parties be married. Rosa v. Rosa, 296 Mass. 271 , 272. Cohen v. Cohen, 319 Mass. 31 , 34. Heard v. Heard, 323 Mass. 357 , 361. It follows that if the Nevada divorce was valid the plea was rightly sustained. The question is the validity of the Nevada divorce.
The wife, who continued to reside in this Commonwealth since the husband left in 1931, did not appear in, or take any part in, the Nevada proceedings. She was served only by substituted service in this Commonwealth. Jurisdiction of the State of Nevada to grant the divorce therefore depended upon the husband's having acquired a domicil in Nevada. Rubinstein v. Rubinstein, 319 Mass. 568 , 571. Coe v. Coe, 320 Mass. 295 . Bell v. Bell, 181 U.S. 175. Williams v. North Carolina, 325 U.S. 226, 229. The wife could attack the Nevada decree by showing that the husband had not acquired in fact a domicil in Nevada. Cohen v. Cohen, 319 Mass. 31 , 34-35. Heard v. Heard, 323 Mass. 357 , 363. Williams v. North Carolina, 325 U.S. 226. Rice v. Rice, 336 U.S. 674. Compare Sherrer v. Sherrer, 334 U.S. 343; Coe v. Coe, 334 U.S. 378. She has made this attack, but has been unsuccessful in it, since the trial judge here has found, with ample and consistent subsidiary findings, that on September 6, 1940, nearly ten months before the husband filed his suit for divorce in Nevada, he had arrived at Reno with the intention of establishing his domicil there and so had acquired a domicil which he has since retained. This finding does not now appear to be challenged.
But although the State of Nevada acquired jurisdiction to grant a divorce by reason of the domicil of the husband, there are certain additional requirements of the Nevada statutes relative to length and continuity of residence which the wife insists were not complied with, so that, as she contends, the Nevada court had no jurisdiction to grant a divorce in the circumstances existing in this instance, even if the husband was domiciled in Nevada. If under Nevada law these requirements were jurisdictional in their nature, and were not complied with, it is possible that the Nevada decree would be void in Nevada and subject to collateral attack there by the wife, who never actually became a party to the Nevada proceedings. Restatement: Judgments, Sections 5, 7-12, and comments. Comparable provisions of our own statutes are regarded as jurisdictional. Old Colony Trust Co. v. Porter, ante, 581, 585. The decision in Confer v. District Court, 49 Nev. 18, may tend against the allowance of collateral attack in Nevada, but in that case the wife appeared and contested the granting of the divorce. And see Fleming v. Fleming, 36 Nev. 135, 142. At any rate, for the purposes of this decision, we assume in favor of the wife that the statutory requirements are jurisdictional in Nevada, and that failure to comply with them would leave the divorce void and subject to collateral attack there, and so also here.
The provisions of the Nevada statutes to...
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