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SUSAN J. SIMMONS vs. STEVEN R. SIMMONS.

APPEALS COURT OF MASSACHUSETTS

January 20, 1995

During the pendency of a complaint for divorce brought by the wife in Massachusetts, the husband filed an action for divorce in South Carolina. Despite the wife's request for a continuance on the ground that a prior action for divorce was pending in Massachusetts, and a claim that the South Carolina court did not have jurisdiction, a judge of the Family Court of the Ninth Judicial Circuit of the State of South Carolina on April 13, 1992, "ordered adjudged and decreed that the defendant is entitled to a divorce." The court issued no order regarding custody, alimony, support, or division of property. The South Carolina court determined that it had jurisdiction, that the wife's divorce had been pending since 1987, "that the sister state (Massachusetts) has failed to give any reason for its failure to issue a ruling in this matter" although a hearing had been held in December, 1991, and that the husband "is entitled to his divorce." Subsequent to that order, a Massachusetts Probate Court, on August 19, 1992, issued a judgment of divorce nisi which, if valid, would have become absolute ninety days thereafter. That judgment also provided for visitation by the husband and a division of marital assets, including the husband's military retirement pay. The husband filed a motion for relief from judgment in the lower court, claiming it lacked jurisdiction. The lower court denied the motion, and the husband sought review of that decision.

Issue:

Whether the probate court lacked subject matter jurisdiction to hear the case?

The Court held that it is true that the South Carolina divorce judgment is entitled to full faith and credit and that the judgment has established with finality the status of the plaintiff's marriage. The wife appeared through counsel in South Carolina and is precluded from relitigating the same matter in Massachusetts. While the portion of the Massachusetts judgment which adjudged a divorce is a nullity, there is no reason to invalidate the remainder of the judgment. Further the Court finds that "General Laws, c. 208, 34, as amended through St. 1990, c. 467, specifically provides: "Upon divorce or upon a complaint in an action brought at any time after a divorce, whether such a divorce has been adjudged in this commonwealth or another jurisdiction, the court of the commonwealth, provided there is personal jurisdiction over both parties, may make a judgment for either of the parties to pay alimony to the other. In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to . . . . military retirement benefits if qualified under and to the extent provided by federal law. . . ." The wife's complaint sought custody, alimony, and support as well as a divorce. The South Carolina judgment did not purport to settle any of these matters. Since the Massachusetts Probate Court had personal jurisdiction over both parties, the South Carolina judgment did not prevent the Massachusetts Probate Court from adjudicating the other questions encompassed in the wife's complaint.

Conclusion:

This Court concludes that the portion of the August 19, 1992, judgment nisi which purported to adjudicate a divorce is deleted. With that exception, the denial of the motion for relief from judgment is affirmed.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

Massachusetts Grounds Divorce Decree Military Retirement Pay Lacked Jurisdiction Lawyers Attorneys

By: Atchuthan Sriskandarajah

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