Wiley v. Wiley

• Decision Date: 01 February 1952
• Citation: 328 Mass. 348,103 N.E.2d 699
• Parties: WILEY v. WILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 699

103 N.E.2d 699

328 Mass. 348

WILEY v. WILEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 1, 1951.

Decided Feb. 1, 1952.

C. H. Amon, Jr., Boston, T. L. Cross, II, Boston, for appellant.

No argument nor brief by the respondent.

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

QUA, Chief Justice.

This petition is brought by a wife against her husband under G.L. (Ter.Ed.) c. 209, § 32, as amended by St.1938, c. 136. The petition describes the petitioner as of Boston and the respondent as of Rochester in the State of New York. It contains the usual allegations that the respondent fails, without just cause, to furnish suitable support for the petitioner, and that she is living apart from him for justifiable cause. The prayers are that the court prohibit the respondent from imposing any restraint upon the personal liberty of the petitioner, and that the court make such further order as it deems expedient concerning her support and the care, custody and maintenance of the two minor children of the parties.

A citation issued upon the petition and was served upon the respondent by publication and mailing as therein ordered. The respondent entered a special appearance 'for the sole purpose of contesting jurisdiction over the respondent, who does not hereby appear generally or submit himself to the jurisdiction of the court.' The trial judge, without making specific findings of fact, entered a decree in these words, 'After a full hearing the court determines that it is without jurisdiction and dismisses the within petition.' The petitioner appeals. The evidence is reported.

The record gives us no assistance as to the reasons which led to the decision that the court was without jurisdiction. Undoubtedly the Probate Court had jurisdiction in general of proceedings under the statute. Under the rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, it did not have jurisdiction to enter a decree in personam for the payment of money against a nonresident not personally served here. But the scope of the statute and the prayers of the petition go beyond the matter of a decree in personam for money payments. They comprehend a modification of the incidents of the status of marriage, a determination that the wife is living apart from her husband for justifiable cause, the prohibition of restraint by the husband on the personal liberty of the wife, and the care, custody and maintenance of minor children who are present within this Commonwealth. That the court here, upon substituted service, has jurisdiction over these matters, if either party is domiciled within the Commonwealth, is demonstrated by Schmidt v. Schmidt, 280 Mass. 216, 182 N.E. 374, and Welker v. Welker, 325 Mass. 738, 741-742, 92 N.E.2d 373. See Blackinton v. Blackinton, 141 Mass. 432, 5 N.E. 830; Mosher v. Mosher, 293 Mass. 105, 106, 199 N.E. 301; Bowditch v. Bowditch, 314 Mass. 410, 50 N.E.2d 65; Cassen v. Cassen, 315 Mass. 35, 51 N.E.2d 976; Heard v. Heard, 323 Mass. 357, 365, 85 N.E.2d 219; Conley v. Conley, 324 Mass. 530, 532-533, 87 N.E.2d 153; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. Since the provisions as to residence contained in G.L. (Ter.Ed.) c. 208, §§ 4, 5, relating to divorce, do not apply to proceedings under the separate support statute, it is immaterial whether the parties have ever lived as husband and wife in this Commonwealth or how long the domicil of one of them has been here. And, as is equally true in cases of divorce, the wife may acquire a domicil apart from that of her husband. Blackinton v. Blackinton, 141 Mass. 432, 435, 5 N.E. 830. Jurisdiction seems therefore to depend upon whether the wife has acquired such a domicil in this Commonwealth.

The evidence, in so far as it related to her domicil, consisted principally of the testimony of the petitioner. This testimony in substance was that at the time of the hearing she was living in the Jamaica Plain district of Boston with her two children and her mother and sister in the house owned by her mother in which the petitioner had been brought up and where she had lived except for the periods when she was...