Gosselin vs. Gosselin

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1 Mass. App. Ct. 146

January 9, 1973 – March 8, 1973

Essex County


Present: HALE, C.J., KEVILLE, & GRANT, JJ.

PETITION filed in the Probate Court for the county of Essex on December 3, 1970.

The case was heard by Pettoruto, J.

Elliot E. Rosenberg (John F. Lombard with him) for the petitioner.

Joseph D. Casey for the respondent.


KEVILLE, J. In 1966 in the Probate Court for Essex County, the petitioner obtained a decree of separation from the respondent with an order of custody and support for their minor children. The order was modified several times thereafter. On April 4, 1967, the respondent obtained a divorce from the petitioner in Reno, Nevada. That decree gave custody of the children to the petitioner with an order for their support but with no order for alimony. The respondent has remarried and lives in New Hampshire.

On the strength of the respondent’s Nevada divorce the petitioner now seeks alimony under the provisions of G. L. c. 208, Section 34, which reads as follows: “Upon a divorce, or upon petition at any time after a divorce, the court may decree alimony to the wife, or a part of her estate, in the nature of alimony, to the husband.” The respondent asserts that “divorce” in Section 34 refers to domestic divorce and that therefore alimony may not be granted in this jurisdiction after a divorce obtained elsewhere.

Although the award of alimony rests upon the common law obligation of a husband to support his wife (Davis v. Davis, 279 Ala. 643, 644), authority of the courts of this Commonwealth to grant alimony is purely statutory. Davol v. Davol, 13 Mass. 264 . Weidman v. Weidman, 274 Mass. 118, 123. That authority was first granted in St. 1785, c. 69.

As a statute which imposes a duty and establishes a right not recognized at common law, Section 34 and its predecessors are to be strictly construed. Corcoran v. S. S. Kresge Co. 313 Mass. 299, 303. “The courts have consistently held legislation derogative of the common law accountable to an exactness of expression, and have not allowed the effects of such legislation to be extended beyond the necessary and unavoidable meaning of its terms.” Scharfeld v. Richardson, 133 F. 2d 340, 341 (D. C. Cir.). Decisions dealing with Section 34 and with similar language in earlier versions of our divorce statute are few and they shed little light on the issue before us. The statement relied upon by the respondent in Page v. Page, 189 Mass. 85 , 87, to the effect that the statutes authorizing allowance of alimony apply only to those cases in which divorce is granted in Massachusetts, is dictum only, the matter before that court being not a petition for alimony but an application to recover arrears of alimony claimed to be due under a Maine divorce decree granted to the petitioner.

Decisions under similar statutes in other jurisdictions are inconclusive. See Schwarz v. Schwarz, 27 Ill. 2d 140, where an Illinois statute providing for alimony “after the entry of a decree for divorce” was held to include a divorce granted in a foreign jurisdiction, and Hughes v. Hughes 125 N.J. Eq. 47, limiting the application of similar language in a New Jersey statute to domestic divorce.

We turn to its early statutory antecedents to construe the language of Section 34. See Davis v. School Committee of Somerville, 307 Mass. 354 , 361; Sutherland, Statutory Construction (3d ed.) Section 5201, p. 530. They confine authority to grant alimony after divorce to the court which granted the divorce itself and thus demonstrate a legislative intent to limit that authority to domestic divorce. Provisions for alimony subsequent to divorce were first inserted by St. 1853, c. 23 Section 1, which reads as follows: “The Supreme Judicial Court shall have power, after any decree of divorce shall have been granted by the said court . . . to make at any time . . . any such decree of . . . alimony . . . as the said court might have made in the original suit” (emphasis supplied). In 1860 (Gen. Sts. c. 107 Sections 44 and 48) the following language was used: “Sect. 44. When a divorce is decreed . . . the court granting it may decree alimony to the wife . . .. Sect. 48. The supreme judicial court, after a decree of divorce has been granted . . . may . . . make such decree respecting alimony . . . as it might have made in the original suit” (emphasis supplied). Statute 1873, c. 371, Section 7, limited the power to grant alimony to the court granting the divorce.

Provisions for alimony after divorce in the statutes from 1882 forward [Note 1] are couched substantially in the language of Section 34. They reveal no positive intent to extend to our courts jurisdiction to grant alimony on the basis of foreign divorce.

An examination of related sections of the divorce statute (G. L. c. 208) is also revealing. They are to be viewed in pari materia. People ex rel. Killeen v. Kankakee School District No. 11, 48 Ill. 2d 419. Pritel v. Burris 94 N.J. Super. 485. Sections of the same chapter are to be interpreted, if reasonably practicable, so as to constitute an harmonious and consistent body of laws. Kelley v. Jordan Marsh Co. 278 Mass. 101 , 111. Section 28 provides that “[u]pon decree of divorce or . . . after such decree” the court may make decrees for the care, custody and maintenance of minor children of the parties. In Section 29 the courts’ jurisdiction is specifically extended to provide for care and custody of children resident in Massachusetts whose parents have been divorced in another jurisdiction. Section 35 reads as follows: “The court may enforce decrees, including foreign decrees, for allowance, alimony or allowance in the nature of alimony” (emphasis supplied). The phrase “including foreign decrees” in that section was inserted by St. 1950, c. 57. [Note 2]

We conclude that had the Legislature intended to empower the court in Section 34 to grant alimony after a foreign divorce it would have employed specific language as it did in Section 29 in dealing with custody of children whose parents were divorced elsewhere and in Section 35 in the enforcement of foreign decrees for alimony. See Wood v. Commissioner of Correction, 363 Mass. 79, 82-83.

The decree of the Probate Court dismissing the petition for want of jurisdiction is affirmed.

So ordered.



[Note 1] Public Statutes c. 146, Section 36; R. L. c. 152, Section 30.

[Note 2] The purpose of this amendment was to remove the effect of the decision in Seltmann v. Seltmann, 322 Mass. 650 . See De Gategno v. De Gategno, 336 Mass. 426 , 428-429.

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