Welker v. Welker

• Decision Date: 04 May 1950
• Parties: WELKER v. WELKER (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 738

92 N.E.2d 373

WELKER v. WELKER (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

May 4, 1950

Argued March 6 1950.

A R. Shrigley, Joel W. Eastman, Boston, for petitioner.

Charles W. Lavers Boston, for Constance Lavers.

Before QUA, C. J and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.

RONAN, Justice.

These are appeals from a decree of the Probate Court, entered upon a petition brought under G.L. (Ter.Ed.) c. 209, § 32, adjudging that the petitioner had been deserted by the respondent, his wife, and that he is living apart from her for justifiable cause, and from a second decree, entered upon a petition brought under G.L. (Ter.Ed.) c. 209, § 37, awarding the custody of Christine Welker, the minor child of the parties born April 18, 1945, to the petitioner, permitting him to remove her to Pennsylvania, and giving the respondent the right to see said child at all reasonable times and places.

The petitioner appealed from the denial of his petitions to dismiss the respondent's appeals. Those petitions were based on the grounds that, on the last day for paying the register of probate the estimated cost of printing and preparing the papers for this court, she gave to the register a check, and not cash or legal tender of the United States, in the required amount.

We have a transcript of the evidence and a report of material facts made by the judge. These appeals open up all questions of law, fact, and discretion. We now summarize the facts which we find for ourselves, accepting as true the findings of the judge, none of which is shown to be plainly wrong. The petitioner and the respondent were married in Malden in this Commonwealth on February 13, 1943, and lived together in Boston for about six weeks. He was subsequently transferred to various places in this country, in the performance of his duties in the service of the navy, and she accompanied him until he was ordered to sea duty. She then returned and lived with her mother in Malden until he was discharged from the navy in November, 1945. He then rejoined his wife at Malden and they lived together until December 15, 1945, when they went to the home of his parents in Pennsylvania where they remained until May 28, 1946, when she left him and returned with their child Christine to her mother's home in Malden. Prior to her leaving, he had purchased a house in Pennsylvania, taking title in their names as tenants by the entirety, and both of them had been engaged in furnishing this house. She went to Florida with the child on August 1, 1946, and hired a room which she occupied, except during the trips she made to Malden, until she was granted a divorce. She filed a libel for divorce in Florida on November 12, 1946. A citation was mailed to him but he did not appear or participate in the divorce proceedings. A few days after the granting of a divorce to her with custody of the child on January 31, 1947, she left Florida for good and returned to her mother's home in Malden, where she resided until August 8, 1947, when she went through a marriage ceremony with one Lavers in New Hampshire, and has since lived with him in Everett in this Commonwealth. The household consists of Lavers, the respondent, a child born of this union, and the minor child Christine. The petitioner visited the respondent and their child before the marriage ceremony with Lavers and she refused to return to his home in Pennsylvania. He also visited the child while she was living in Everett and has voluntarily contributed to the support of the child.

We now consider the appeal from the first decree.

The statute, G.L. (Ter.Ed.) c. 209, § 32, in so far as material, provides that 'if the husband is deserted by the wife, or is actually living apart from his wife for justifiable cause, the probate court may, upon his * * * petition * * * prohibit the * * * wife from imposing any restraint on' his personal liberty during such time as the court may direct, and may make appropriate orders relative to the support of the wife and the care, custody, and maintenance of the children. The respondent contends that the Probate Court had no jurisdiction to entertain the petition. The respondent since her return from Florida about February 1, 1947, has lived with her mother in Malden and then with Lavers in Everett. The Commonwealth has 'the right of determining the status or condition of persons found within its jurisdiction.' Woodworth v. Spring, 4 Allen, 321, 323. Both parties were before the court. The petitioner was seeking a determination of his status as a deserted husband and to secure whatever advantages might arise from an adjudication that he was living apart from the respondent for justifiable cause. See Mosher v. Mosher, 293 Mass. 105, 106, 199 N.E. 301. While one of the principal purposes of the statute is to compel a husband to furnish support to his abandoned wife and minor children, it also furnishes a method by which either the husband or the wife may secure an adjudication as to his or her status as an abandoned husband or wife, as the case may be, and so secure freedom from interference with his or her personal liberty by the other, relief from certain restraints arising from the marital relation with reference to selling and devising real estate, and, in the case of the husband, freedom from the claims of creditors for debts incurred by her after the separation. G.L.(Ter.Ed.) c. 209, §§ 35, 36. Malden Hospital v. Murdock, 218 Mass. 73, 105 N.E. 457; Mackeran v. Fox, 220 Mass. 197, 107 N.E. 919; Fenelon v. Fenelon, 244 Mass. 14, 138 N.E. 334; O'Hara v. Donovan, 303 Mass. 393, 21 N.E.2d 984; Coughlin v. Coughlin, 312 Mass. 452, 45 N.E.2d 388. The statute is designed not to effect a judicial separation between the parties but to adjust and settle the usual problems that follow in the wake of a broken home and to enforce the rights of the parties so long as their situation remains unchanged. Other important aims which the statute seeks to accomplish are to aid the minor children placed in an unfortunate situation and to formulate and enforce a fair and equitable solution of the various and conflicting claims to the mutual advantage and benefit of the husband, the wife, and the minor children. Petitions have often been brought by a wife seeking support for herself and minor children against a nonresident husband, where she has had decrees in her favor adjudging her status as an abandoned or deserted wife and has also been granted custody of the children and she has also secured a decree ordering him to pay certain amounts for her support and that of the children if there has been an attachment of his property or if he has appeared generally in the proceedings or if he has been duly served with notice within the Commonwealth. Blackinton v. Blackinton, 141 Mass. 432, 5 N.E. 830, 55 Am.Rep. 484; Schmidt v. Schmidt, 280 Mass. 216, 182 N.E. 374; Durfee v. Durfee, 293 Mass. 472, 200 N.E. 395. See Stearns v. Allen, 183 Mass. 404, 67 N.E. 349, 97 Am.St.Rep. 441; Cassen v. Cassen, 315 Mass. 35, 51 N.E.2d 976. Compare Mosher v. Mosher, 293 Mass. 105, 199 N.E. 301. In Gallup v. Gallup, 271 Mass. 252, 171 N.E. 464, the nonresident husband's petition to vacate a decree was heard and decided. The terms of the statute are broad and general, and we see nothing in its terms or purpose that precludes the petitioner here, a nonresident husband, from seeking relief against his wife who, since going through a marriage ceremony in 1947 with another man, has since been living with him in a home which he has established and maintained in Everett and where she has seemingly taken up a permanent residence with Christine, the minor child of the petitioner and the respondent. Relief in such a situation must be based upon some statutory ground, Gediman v. Cameron, 306 Mass. 138, 27 N.E.2d 696. Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937; but statutes somewhat similar to our own in other jurisdictions have been broadly construed as to non-resident parties coming within their scope, and proceedings under them in some instances have been said to possess some of the elements of a transitory action. Melvin v. Melvin, 75 U.S.App.D.C. 56, 129 F.2d 39; Ex parte Hale, 246 Ala. 40, 18 So.2d 713; Wynne v. Wynne, 20 Cal.App.2d 131, 66 P.2d 467; Kiplinger v. Kiplinger, 147 Fla. 243, 2 So.2d 870; George v. George, 23 A.2d 599, 20 N.J.Misc. 41.

A petition under G.L. (Ter.Ed.) c. 209, § 32, cannot be maintained unless the marital relation exists between the parties. Rosa v Rosa, 296 Mass. 271, 272, 5 N.E.2d 417; Shain v. Shain, 324 Mass. 603, 88 N.E.2d 143; Royal v. Royal, 324 Mass. 613, 616-617, 87 N.E.2d 850. The respondent contends that by virtue of the divorce granted to her in Florida she is not the wife of the petitioner. The petitioner challenges the validity of the divorce. He had constructive notice of the divorce proceedings but he did not participate in them, and it is open to him to show that the Florida court lacked jurisdiction because his wife was not domiciled in that State at the time the divorce was granted. After a full and fair trial of that issue the judge found that she had no domicil in Florida, and an examination of the evidence does not show that he was plainly wrong but demonstrates that he was clearly right. If, as properly found, the Florida court had no jurisdiction to grant the divorce, the refusal to recognize it as valid in this Commonwealth does not contravene the full faith and credit clause of the Federal Constitution, art. 4, § 1, and consequently the marital relation still existed between the parties when the instant petition was heard in the Probate Court. Bowditch v. Bowditch, 314 Mass. 410, 50 N.E.2d 65; Heard v. Heard, 323 Mass. 357, 361, 82 N.E.2d 219; Rubinstein v....