Sherrer v. Sherrer
| Citation | 69 N.E.2d 801,320 Mass. 351 |
| Parties | EDWARD C. SHERRER v. MARGARET E. SHERRER (and a companion case between the same parties). |
| Decision Date | 04 November 1946 |
| Court | United States State Supreme Judicial Court of Massachusetts |
September 17, 1946.
Present: FIELD, C.
J., QUA, RONAN WILKINS, & SPALDING, JJ.
Marriage and Divorce, Foreign divorce, Jurisdiction. Domicil. Constitutional Law, Full faith and credit, Divorce. Jurisdiction, Divorce proceedings. Minor. Probate Court Appeal, Report of material facts. Words, "Order in writing."
A letter to a register of probate by an appellant stating, "Please prepare" the papers in the case for transmission to this court, was an "order in writing" within G. L. (Ter Ed.) c. 231, Section 135.
A report of material facts, made by a judge of probate after the claiming of an appeal from a decree and after a request for such a report, not by the appellant but by the party to whom the decree was favorable and who therefore was not entitled to appeal, must be treated as a voluntary report. An order in writing, seasonably given under G. L. (Ter. Ed.) c. 231,
Section 135, by an appellant to a register of probate for the preparation of the papers in the case for transmission to this court, was not vitiated by the subsequent filing of a voluntary report of material facts by the judge and need not be repeated after the filing of the report, even though the report upon its filing became a necessary part of the record for this court and a motion by the appellee to dismiss the appeal on the sole ground of want of such a second order in writing was properly denied.
A finding that a wife did not acquire a domicil in Florida, implied from a finding that she did not intend to make her permanent home there, was not plainly wrong on evidence that she left her home in Massachusetts where she was domiciled with her husband and went to Florida, where she brought a divorce proceeding immediately upon expiration of the period of residence required by a Florida statute for such a proceeding, and returned to Massachusetts a few months after obtaining a divorce. The mere circumstances, that the plaintiff's allegation of a residence in
Florida in a divorce proceeding there was denied in the defendant's answer and that there was some testimony on the subject of residence at a formal uncontested hearing of the case, did not show such genuine litigation and determination of that jurisdictional fact in the Florida proceeding that a decree of divorce therein was denied full faith and credit by a subsequent decree by a Massachusetts court in effect based on invalidity of the Florida decree for want of a domicil of either party in that State.
A decree of a Probate Court under G. L. (Ter. Ed.) c. 209, Section 37, awarding to the father custody of minor children of parents living apart was proper on findings of suitability of environment for the children with him and unsuitability of environment for them with the mother.
PETITIONS, filed in the Probate Court for the county of Berkshire on June 28, 1945.
The cases were heard by Hanlon, J. F. M. Myers, for the respondent.
R. T. Capeless, (L.
S. Cain, A.
W. Chesney & R. A. Lewis with him,) for the petitioner.
These are two petitions in the Probate Court of Berkshire County one for a decree that the respondent has deserted the petitioner and that the petitioner is living apart from the respondent for justifiable cause, and the other for the custody of two minor children. From decrees in favor of the petitioner the respondent appeals. The testimony is reported, and the judge in each case made a report of the material facts found by him. G. L. (Ter. Ed.) c. 215, Section 11. Rubinstein v. Rubinstein, 319 Mass. 568, 569. Coe v. Coe, ante, 295, 297.
1. We first consider an appeal of the petitioner from the denial of his motion to dismiss the respondent's appeal from the decree that the respondent has deserted the petitioner and that the petitioner is living apart from the respondent for justifiable cause. The motion was based upon an alleged failure to comply with G. L. (Ter. Ed.) c. 231, Section 135, as amended, which requires that "the party having the obligation to cause the necessary papers . . . to be prepared shall give to the . . . register . . . within ten days after the case becomes ripe for final preparation and printing of the record for the full court, an order in writing for the preparation of such papers and copies of papers for transmission to the full court of the supreme judicial court." The decree was dated October 8, 1945. The respondent made no request of the judge to report the material facts, but the petitioner made such a request on October 11. On October 23 the respondent appealed and filed a transcript of the evidence. On the same day the register received from the respondent a letter containing the following: "Please prepare for transmission to the Supreme Judicial Court all papers required to present appeal of respondent in the matter of Edward C. Sherrer vs. Margaret E. Sherrer." This was "an order in writing" within the meaning of G. L. (Ter. Ed.) c. 231, Section 135. Bass River Savings Bank v. Nickerson, 302 Mass. 235 , 237-238. On November 8 the judge filed a report of the material facts found by him. As the decree was entirely in favor of the petitioner, and he was not aggrieved thereby, his request for a report of the material facts was not by a "party entitled to appeal" under G. L. (Ter. Ed.) c. 215, Section 11. Donovan v. Donovan, 223 Mass. 6 , 7, and cases cited. Olsen v. Olsen, 294 Mass. 507, 509-510. Walsh v. District Court of Springfield, 297 Mass. 472 , 474. Ballard v. Maguire, 317 Mass. 130 . See Murphy v. Donovan, 295 Mass. 311, 312, 313. The report of material facts in the case at bar must be taken to have been voluntary. It might never have been made. The mere possibility of its being made could not have availed the respondent as a reason for delay in ordering the preparation of the papers for transmission to this court. Indeed the petitioner does not contend that the order was not timely when given. His contention is rather that the case ceased to be "ripe for final preparation and printing of the record for the full court" (Moskow v. Murphy, 310 Mass. 249), that the order was vitiated by the subsequent filing of the report of material facts, which was a necessary part of the record on appeal (Boston Safe
Deposit & Trust Co. v. Wickham, 254 Mass. 471 , 473; Martell v. Moffatt, 276 Mass. 174, 177-178; MacNevin v. MacNevin, 319 Mass. 719 , 721), and that, therefore, the respondent should have given another order for the preparation of the record within ten days after the filing of the report. We do not sustain this contention. The case having once become "ripe for final preparation and printing of the record" did not thereafter lose its ripeness in this respect by the making of a voluntary report of the material facts, even though such report had to be included in the record for this court. Any other conclusion would "promote confusion and uncertainty of practice" (Hubbard v. Southbridge National Bank, 297 Mass. 17, 20), and might result in nullifying a printed record at an indefinite future date. [1]
By way of precaution we state that we should not be understood as intimating that the requirement that the order be given "within ten days after the case becomes ripe for final preparation and printing of the record for the full court" would preclude the giving of the order before the ten days started to run. See MacNevin v. MacNevin, 319 Mass. 719 . See also Atherton v. Corliss, 101 Mass. 40; Young v. The Orpheus, 119 Mass. 179, 185; Reardon v. Cummings, 197 Mass. 128; Bay State Dredging & Contracting Co. v. W. H. Ellis & Son Co. 235 Mass. 263 , 267-268; Carey v. Casey, 245 Mass. 12; Reagan v. Mayor of Fall River, 260 Mass. 529 , 531; Nevins v. Board of Public Welfare of Everett, 301 Mass. 502 , 503. Compare Levine v. Finkelstein, 312 Mass. 483 , 485.
There was no error in the denial of the petitioner's motion to dismiss the appeal.
2. We now consider the merits of the petition representing that the petitioner wishes to be enabled to convey his real estate as though he were sole, and alleging that the respondent has deserted the petitioner and that the petitioner is living apart from the respondent for justifiable cause. G. L.
(Ter. Ed.) c. 209 Section 36. We summarize facts as found by the judge or by ourselves. Lowell Bar Association v. Loeb, 315 Mass. 176 , 178. The parties were married in 1930, in New Jersey, and from 1932 until April 3, 1944, lived together at Monterey in this Commonwealth. On the last mentioned date the respondent, stating that she was leaving for a month's rest, took their two minor daughters with the petitioner's consent to St. Petersburg, Florida. She arrived in Florida April 4. For three weeks she and the children occupied a rented apartment. Thereafter they successively occupied two rented furnished cottages in that city. About April 14, 1944, Henry A. Phelps of Monterey, who for some time had been an intimate friend of the respondent and an acquaintance of the petitioner, and who knew that the respondent had gone to Florida, went to St. Petersburg, where he saw the respondent very frequently. On April 20 the respondent wrote the petitioner, stating that she did not care to go back to live with him, and returning travel money he had sent her. On July 6 she consulted an attorney in Florida, and on the same day signed a bill of complaint for divorce on the ground of extreme cruelty, which alleged that she had been a bona fide resident of Florida for ninety days. The bill of complaint was filed in the Circuit Court of the Sixth Judicial Circuit of Florida in and for Pinellas County. About July 10 the petitioner by...
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