Cases Used to Justify Support Payments By Husband Were in Cases of
Neglect and Abuse
In the past (like 30 to 300 years ago)
alimony made sense if the woman had no ability to earn an income and needed
to support the children. Today after child are of school age any woman can
and should earn an income. Otherwise the man has now become a financial
slave to a women staying at home all day. The mother has the same
responsibility to support the children financially as dad does. Equal rights
MUST EQUAL Equal responsibilities. The courts are living in these decades
past still and have not adjusted to the equal rights they woman's movement
has fought for.
LEXSEE 176 MASS. 229
ELIZABETH BUCKNAM v. GEORGE C. BUCKNAM
[NO NUMBER IN ORIGINAL]
Supreme Judicial Court of Massachusetts, Middlesex
176 Mass. 229; 57 N.E. 343; 1900 Mass. LEXIS 892
March 26, 1900
May 18, 1900
Separate Support -- Relations of Husband and Wife -- Constitutional Law.
S. K. Hamilton & T. Eaton, for the respondent.
F. S. Hesseltine, for the petitioner.
Present: HOLMES, C.J., KNOWLTON, MORTON, BARKER, & LORING, JJ.
[*229] [**343] This is a petition filed in the Probate Court under Pub. Sts. c. 147, § 33, alleging that the respondent fails, without just cause, to furnish suitable support for the petitioner, who is his wife, and asking that the court make an order for her support. The only question before us is whether the court has power to make such an order while the wife is living in the same house with her husband and is performing some of the duties of a wife. The statute enumerates three classes of cases in which the court may make an order concerning the support of a wife. It may be done "when a husband fails, without just cause, to furnish [**344] suitable support for his wife, or has deserted her, or when the wife for justifiable cause is actually living apart from her husband." There would be no reason for the first class of cases if the power of the court to make an order was [***2] intended to be limited to cases in which the husband and wife are living apart from each other. In most, if not all, of the cases which have arisen hitherto, the husband and wife were living apart. Doubtless there will seldom be occasion for an order of the court in behalf of a wife who continues in enjoyment of marital relations with her husband. But to hold that a
[*230] wife can have no relief so long as she continues to live with her husband, however grossly he neglects to furnish her with needed support, would be to nullify the first clause of the section referred to.
The agreed facts under which the order was made show that the parties do not occupy the same room or bed, that they do not eat together, nor have any conversation except such as is absolutely necessary, although she cooks the food furnished by him for both. They also show that she is in great need of clothing, medicine, and other things which he refuses to furnish. The language of the statute indicates an intention that the courts shall have jurisdiction to order relief in such cases.
In the last sentence of the opinion in Bigelow v. Bigelow, 120 Mass. 320, which holds that this statute is constitutional [***3] notwithstanding that it authorizes an order for the support of a wife and children without securing to the husband a right of trial by jury, there is a plain intimation that this is the meaning of the statute. There is also an expression of a doubt whether it "could be upheld as a regulation by the Legislature of the duty of a husband to support his wife and children while living with him."
The constitutionality of the law is affirmed in that case on the ground that an order for support of a wife and children while she is living apart from her husband is within the exception, stated in the fifteenth article of the Declaration of Rights, to the provision securing a right of trial by jury, which exception includes all "cases in which it has heretofore been otherways used and practised." Under the provisions of law prior to the adoption of the Constitution, all cases of marriage, divorce, and alimony were heard by the Governor and Council, and of course without a trial by jury. Anc. Chart. 243. Although at that time there was no statute like that now before us, this statute is only a new method of enforcing a right growing out of marriage, which was enforced by an order for alimony [***4] after a divorce from the bonds of matrimony, or a divorce from bed and board, or after the commencement of proceedings to obtain a divorce. The term "alimony" in its broad sense means support to which the wife or children are entitled on account of the misconduct and neglect of the husband and
[*231] father. We think that this statute, in its application to a wife in need of support from a husband who fails to perform his marital duties in the family while she is living with him, is merely an enlargement and extension of the remedies existing in cases of marriage, divorce, and alimony, before the adoption of the Constitution. It therefore falls within a class of subjects which, previously to the adoption of the Constitution, were judicially dealt with without a trial by jury. In reference to cases of desertion by the husband which had just occurred, and cases of a wife justifiably living apart from her husband for a slight cause although the husband's wrong would not entitle the wife immediately to a divorce, or to alimony under former laws, this construction was put upon the statute in Begelow v. Bigelow, ubi supra, and for this reason the statute was held constitutional. [***5] We think that the principle of that decision should apply as well to the present case.
LEXSEE 120 MASS. 320
Harriet E. Bigelow vs. Alexander T. Bigelow.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF MASSACHUSETTS
120 Mass. 320; 1876 Mass. LEXIS 182
May 6, 1876, Decided
PRIOR HISTORY: [**1] Suffolk. Petition filed December 30, 1875, under the St. of 1874, c. 205, * representing that the parties were legally married in 1872, and afterwards lived together in this Commonwealth, and had two children, who now lived with the petitioner; and that on September 13, 1875, the respondent deserted the petitioner without cause, and they had since lived apart, without any fault on her part, but by his fault in leaving her, and he had failed, without just cause, to furnish suitable support for her and for their children; and praying for an order to prohibit him from imposing any restraint on her personal liberty, and for further order concerning her support and that of the children.
* "Whenever a husband, without just cause, fails to furnish suitable support for his wife, or has deserted her, although such desertion has continued less than three years, or when the wife, for justifiable cause, is actually living apart from her husband, the supreme judicial court, sitting in any county, or any justice of said court in vacation, may by its order, on the petition of the wife, prohibit the husband from imposing any restraint on her personal liberty for such time as the court or justice shall, in such order, direct, or until the further order of the court thereon; and the court or justice may, upon the application of the husband or wife, make such further order as it deems expedient concerning the support of the wife, the care, custody and maintenance of the minor children of the parties, and may determine with which of them the children or any of them shall remain; and may, from time to time, afterwards, on the application of either of the parties, revise and alter such order, or make a new order or decree, as the circumstances of the parents or the benefit of the children may require."
The petition was heard by Devens, J., who made an order by which he determined that the petitioner was actually living apart from her husband, for justifiable cause, and that he had failed to provide suitable support and maintenance for her and their two minor children; and ordered that he should pay to the petitioner thirty dollars a month for the support and maintenance of her and the children, until further order of the court.
The respondent moved that the decree be vacated, because "the statute, under which the petition is brought, is unconstitutional, inasmuch as it makes no provision for trial by jury in accordance with Art. XV. of the Declaration of Rights in the Constitution of this Commonwealth, and Art. VII. of the amendments of the Constitution of the United States." This motion was disallowed; and the respondent appealed.
DISPOSITION: Order affirmed.
HEADNOTES: The St. of 1874, c. 205, so far as it provides that when a wife is living apart from her husband, for justifiable cause, and he fails to support her, this court may make such order as it deems expedient for the support of the wife and the maintenance of the minor children, is constitutional, although it makes no provision for a trial by jury.
COUNSEL: G. W. Morse & A. S. Hall, for the respondent.
C. H. Chellis, for the petitioner.
JUDGES: Gray, C. J. Ames & Morton, JJ., absent.
[*321] Gray, C. J. By the Constitution of the Commonwealth, in accordance with the practice under the Charter of the Province, the jurisdiction in cases of divorce and alimony [**3] was vested in the Governor and Council, until transferred by the St. of 1785, c. 69, to this court, where it has since remained; but it belongs to the Legislature to express by general laws the cases in which the court may decree a divorce from the bond of matrimony or a judicial separation, and may order the husband to support his wife lawfully living apart from him. Sparhawk v. Sparhawk, 116 Mass. 315. Shannon v. Shannon, 2 Gray 285, 287. Adams v. Adams, 100 Mass. 365, 373.
A trial by jury was never had in such cases until it was allowed on libels for divorce by the St. of 1855, c. 56; Gen. Sts. c. 107, § 15. The fifteenth article of the Declaration of Rights, affirming the right of trial by jury "in all controversies concerning property, and in all suits between two or more persons," excepts "cases in which it has heretofore been otherways used and practised." The seventh article of amendment of the Constitution of the United States is limited to suits at common law, and does not apply to the state courts. Twitchell v. Commonwealth, 7 Wall. 321. Commonwealth v. Hitchings, 5 Gray 482.
[*322] The St. of 1874, c. 205, [**4] authorizes this court to prohibit the husband from restraining the personal liberty of the wife, and to make orders concerning her support and the care, custody and maintenance of the children of the parties, when the husband has deserted his wife or has unjustifiably neglected to support her, or she is living apart from him for justifiable cause. The petition alleges that all these facts exist; and the decree determines that the wife is living apart from her husband for justifiable cause, and orders him to pay a certain sum monthly for the support of herself and their children, until the further order of the court.
The object and effect of this proceeding are to obtain a judicial determination that the husband and wife are lawfully living apart, and that he shall support her and their children during the separation. In such a case, the husband has no constitutional right to a trial by jury.
This case does not require us to consider how far, if at all, the statute could be upheld as a regulation by the Legislature of the duty of a husband to support his wife and children while living with him.