State Tax Com'n v. Felt

• Decision Date: 19 January 1954
• Citation: 117 N.E.2d 166,331 Mass. 63
• Parties: STATE TAX COMMISSION v. FELT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 166

117 N.E.2d 166

331 Mass. 63

STATE TAX COMMISSION v. FELT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 1953.

Decided Jan. 19, 1954.

Harris A. Reynolds, Asst. Atty. Gen., for Commissioner of Corporations and Taxation.

Sargent H. Wellman and Lewis M. Stillman, Boston, for taxpayers.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

WILKINS, Justice.

The commissioner of corporations and taxation appealed from a decision of the Appellate Tax Board granting an abatement of an income tax assessed to the trustees for the year 1951 with respect to income received during 1950, which the commissioner had previously refused to abate. In this court the State tax commission has been substituted as appellant. St.1953, c. 654.

Under date of December 30, 1942, Rose S. Proctor (now Rose S. Taylor) made a declaration of trust for the benefit of the children of her husband, George N. Proctor, 3d, and of herself, all of whom were inhabitants of this Commonwealth. During the year 1950, the beneficiaries were Natalie Proctor and Roger C. Proctor, both minors, who from birth until about June 1, 1947, had lived in this Commonwealth with one or both parents. In 1946 Rose S. Proctor filed a libel for divorce in the Probate Court Norfolk County. On June 26 of that year a decree nisi of divorce was entered, which awarded her custody of the children. The decree became absolute after the expiration of six months. On February 8, 1947, Rose S. Proctor, while still an inhabitant of this Commonwealth, married Mervyn D. Taylor, a citizen of Canada, domiciled in Toronto. In June, 1947, Rose S. (Proctor) Taylor moved to her husband's home. In September, 1947, after attending summer camps in Maine and Vermont, the children, with the consent of their father, went to Toronto to live with their mother and stepfather, and there they have since remained.

The board found the foregoing facts, and decided that the children were not inhabitants of this Commonwealth during the year 1950, and, hence, that the income payable to them was not subject to tax in this State. G.L.(Ter.Ed.) c. 62, § 8, particularly (d); § 10, first sentence.

The question, which we have to decide and which has not been heretofore adjudicated by this court, is this: If a mother is awarded custody of minor children by a valid decree of divorce entered in this Commonwealth, where the parents and the children were domiciled, and she by remarriage acquires a domicil in another jurisdiction, to which she takes the children with the consent of the father, does the domicil of the children follow that of the mother?

In Durfee v. Durfee, 293 Mass. 472, 200 N.E. 395, there was a petition in a Probate Court here by a mother against her former husband for an order for the payment of money for the support of their minor children of whom she had been given custody by a decree of a Rhode Island court at the same time she was granted a divorce. In substantially upholding a decree in favor of the mother, it was said, 293 Mass. at page 478, 200 N.E. at page 398, 'since the custody of the minor children had been awarded to their mother by the decree of the Rhode Island court, their domicil followed that of the petitioner when she removed to * * * this Commonwealth * * * and was here when this petition was filed and heard.' In Conley v. Conley, 324 Mass. 530, 87 N.E.2d 153, there had been a decree in separate support proceedings in this Commonwealth, where all the parties were domiciled, awarding custody of a minor child to the mother. In derogation of that decree the father abducted the child and took her to Texas. In a subsequent divorce libel by the wife, there was a decree in her favor, which included custody of the child, who was still in Texas. This court affirmed that decree, saying, 324 Mass. at page 534, 87 N.E.2d at page 155, 'A husband has no power to change the domicil of his child while both are subject to a valid decree giving custody to the wife. In such circumstances the domicil of the child follows that of the wife.' Both cases cited Restatement: Conflict of Laws, § 32, which reads, 'The minor child's domicil, in the case of divorce or judicial separation of its parents, is that of the parent to whose custody it has been legally given * * *.' The Durfee and Conley cases contain citations from other jurisdictions which support our present conclusion. In addition, we cite other authorities. Simonds v. Simonds, 81 U.S.App.D.C. 50, 154 F.2d 326, 13 A.L.R.2d 1138; In re Webb's Adoption, 65 Ariz. 176, 179, 177 P.2d 222; McMillin v. McMillin, 114 Colo. 247, 251, 158 P.2d 444, 160 A.L.R. 396; Helton v. Crawley, 241 Iowa, 296, 41 N.W.2d 60; Buckman v. Houghton, 202 Minn. 460, 278 N.W. 908; Hanson v. Hanson, 150 Neb. 337, 344, 345, 34 N.W.2d 388; Allman v. Register, 233 N.C. 531, 534, 64 S.E.2d 861; Lorenz v. Royer, 194 Or. 355, 368, 241 P.2d 142, 242 P.2d 200; White v. Bickford, 146 Tenn. 608, 611, 244 S.W. 49, 26 A.L.R. 129; Mauldin v. Buchanan, Tex.Civ.App., 198 S.W.2d 469. Goodrich, Conflict of Laws (2d ed.) § 37. See cases collected in notes in 53 A.L.R. 1160 and 13 A.L.R.2d 307, 313-316.

The tax commission argues that the child's domicil should not follow of the mother, at least provided the father continues to perform his parental duties. The chief reliance for this proviso is a statement in Glass v. Glass, 260 Mass. 562, 565, 157 N.E. 621, 622, 53 A.L.R. 1157, where it was said, 'A married woman way acquire a domicile different from that of her husband in appropriate circumstances. * * * But in the absence of some neglect of parental duty on the part of the father, or some provision of statute, that does not affect...