Appeals Court of Massachusetts, Plymouth.

Robert A. SILVIA

v.

Diane M. SILVIA.

Argued Dec. 14, 1979.

Decided March 5, 1980.


Father appealed from judgment of the Probate Court, Plymouth County, Murphy, J., which denied his petition for modification. The Appeals Court, Dreben, J., held that: (1) duty of child support was imposed upon the wife as well as the husband so that wife's assets and income should have been considered in assessing the husband's petition, and (2) admission of evidence as to the income of the husband's second wife was proper as the income and assets of that spouse were part of the circumstances relevant to the ability of the husband to pay.
Reversed and remanded.

West Headnotes


[1] KeyCite Notes Link to KeyCite Notes

Key Number graphic76E Child Support
  Key Number graphic76EIII Factors Considered
    Key Number graphic76EIII(B) Factors Relating to Custodians and Obligors
      Key Number graphic76Ek70 k. In General. Most Cited Cases
        (Formerly 285k3.3(7))

In awarding support for the children, court must look at the circumstances of the mother as well as the father. M.G.L.A. c. 208 28.

[2] KeyCite Notes Link to KeyCite Notes

Key Number graphic76E Child Support
  Key Number graphic76EII Duty to Support in General
    Key Number graphic76Ek22 Obligation of Parents
      Key Number graphic76Ek26 k. Equality of Duty of Mother and Father. Most Cited Cases
        (Formerly 285k3.1(1))

Although statute dealing with care and maintenance of minor children after divorce predates many of the other gender-neutral provisions of Massachusetts domestic relations law, it is not to be construed in terms of the rules of child support applicable in former periods but rather is to be construed as an integral part of a comprehensive statutory and common-law pattern which places marital and parental obligations on both husband and wife. M.G.L.A. c. 208 28.

[3] KeyCite Notes Link to KeyCite Notes

Key Number graphic76E Child Support
  Key Number graphic76EII Duty to Support in General
    Key Number graphic76Ek22 Obligation of Parents
      Key Number graphic76Ek26 k. Equality of Duty of Mother and Father. Most Cited Cases
        (Formerly 285k3.1(3))

Duty of child support is imposed upon the wife as well as on the husband. M.G.L.A. c. 208 28.


Wife's income, if any, would have to be considered in assessing the husband's petition for modification of support payments; it was improper not to permit the husband to cross-examine wife concerning her assets. M.G.L.A. c. 208 28.

[5] KeyCite Notes Link to KeyCite Notes

Key Number graphic92 Constitutional Law
  Key Number graphic92XI Equal Protection of Laws
    Key Number graphic92k224 Sex Discrimination
      Key Number graphic92k224(2) k. Particular Discriminatory Practices. Most Cited Cases

Key Number graphic76E Child Support
  Key Number graphic76EI In General
    Key Number graphic76Ek2 Constitutional and Statutory Provisions
      Key Number graphic76Ek4 k. Validity. Most Cited Cases
        (Formerly 285k3.1(1))

Duties of child support imposed by statute on husband and wife are fully consistent with the Equal Rights Amendment. M.G.L.A. c. 208 28; M.G.L.A.Const. Pt. 1, Art. 1 as amended Amend. Art. 106.

[6] KeyCite Notes Link to KeyCite Notes

Key Number graphic134 Divorce
  Key Number graphic134V Alimony, Allowances, and Disposition of Property
    Key Number graphic134k230 Permanent Alimony
      Key Number graphic134k245 Modification of Judgment or Decree
        Key Number graphic134k245(2) k. Grounds and Rights of Parties. Most Cited Cases

Key Number graphic76E Child Support
  Key Number graphic76EVI Modification
    Key Number graphic76EVI(B) Particular Factors and Grounds
      Key Number graphic76EVI(B)2 Factors Relating to Obligors
        Key Number graphic76Ek255 k. Other Support Obligations. Most Cited Cases
          (Formerly 134k309.2(3))

Second marriage does not relieve a spouse of marital and parental obligations.

[7] KeyCite Notes Link to KeyCite Notes

Key Number graphic76E Child Support
  Key Number graphic76EIX Enforcement
    Key Number graphic76Ek440 k. In General. Most Cited Cases
      (Formerly 134k311(1))

Second husband or wife does not share the duty to obey a support order directed toward the other spouse.


Income and assets of second spouses are part of the circumstances relevant to the ability of parents to use their own resources to contribute to the support of their children.
**1330
*339 Robert Sylvia, pro se.

Before ARMSTRONG, PERRETTA and DREBEN, JJ.


DREBEN, Justice.
Robert A. Silvia (husband) appeals from a judgment entered on his motion for modification which, inter alia, orders him to make certain payments to Diane M. Silvia (Diane) for the support of their minor children. The only questions [FN1] before us are whether the trial judge erred in precluding cross- examination relating to Diane's income and **1331 assets and in permitting testimony relating to the income of the present Mrs. Silvia. We hold that the judge erred in excluding examination as to Diane's resources but did not err in allowing evidence of the income of the husband's present wife.