Massachusetts Separation Divorce Nisi Prosecution Lack Personal Jurisdiction Lawyers Attorneys

PHYLLIS R. ANDERSON vs. KENNETH P. ANDERSON.

APPEALS COURT OF MASSACHUSETTS

August 24, 1995

Facts:

The parties were married in Boston in 1953 and lived together in the Commonwealth until their separation in 1984. Both parties were living in the Commonwealth when the wife commenced this action in the Earnstable County Probate and Family Court in 1986. The Defendant husband filed a Pro Se appearance and concedes in his brief that there is no question that the court had personal jurisdiction over the parties when the divorce action was commenced. Neither party has resided in the Commonwealth since 1988. The husband, while residing in New Hampshire, continued to be employed in Massachusetts after the wife filed the divorce complaint. In February, 1992, the wife was served with a summons relating to a divorce action brought by the husband in New Hampshire. After the wife did not appear in the New Hampshire action and was defaulted, a decree of divorce entered in that action on April 10, 1992, containing orders relating to alimony and distribution of assets. In June of 1992, the husband then brought a motion to dismiss the MA action, alleging lack of prosecution and lack of personal jurisdiction. The MA trial court denied the motion and granted the wife a divorce judgment that included orders for alimony and division of assets. Defendant husband sought review of a Probate and Family Court order denying the husband's motion to dismiss a judgment of divorce nisi granted to plaintiff wife.

Issue:

Whether the trial court erred in denying defendant's motion to dismiss lack of prosecution and absence of personal Jurisdiction?

Discussion:

The judge concluded that the New Hampshire divorce was valid only as to its grounds and on the authority of Rutledge v. Rutledge, 26 Mass. App. Ct. 537, 529 N.E.2d 1361 (1988), determined that the Commonwealth is the proper forum for the award of alimony and division of assets. As in that case, the New Hampshire judgment that granted the divorce is validand must be recognized in the Commonwealth because of the husband's domicile. That domicile, however, did not suffice to validate the rest of the judgment. Therefore, in making an order of alimony and asset distribution, the New Hampshire judgment "exceeded its adjudicatory jurisdiction and is not entitled to faith and credit. In the circumstances, the assertion by the Probate and Family Court of jurisdiction over alimony and the division of assets was proper. We also conclude that jurisdiction in this case, proper at the outset of the wife's action, was not thereafter affected either by the wife's residence in other States or the husband's residence in New Hampshire and the divorce he obtained there.

Hence this Court affirmed the denial of the motion to dismiss for lack of prosecution. The court noted that the action had not been dismissed administratively, and found the trial court's continued jurisdiction over property issues, the situs of the marriage in MA, and the wife's contention that the case was put on hold by mutual agreement sufficient to sustain the trial court's action.

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 Separation Divorce Nisi Prosecution Lack Personal Jurisdiction Lawyers Attorneys

By: Atchuthan Sriskandarajah

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