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Appeals
Court of Massachusetts, Plymouth. |
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Robert A. SILVIA |
v. |
Diane M. SILVIA. |
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Argued Dec. 14, 1979. |
Decided March 5, 1980.
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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.
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West
Headnotes |
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[1]
KeyCite Notes
76E
Child Support
76EIII
Factors Considered
76EIII(B)
Factors Relating to Custodians and Obligors
76Ek70
k. In General.
Most Cited Cases
(Formerly
285k3.3(7))
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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
76E
Child Support
76EII
Duty to Support in General
76Ek22
Obligation of Parents
76Ek26
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
76E
Child Support
76EII
Duty to Support in General
76Ek22
Obligation of Parents
76Ek26
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
92
Constitutional Law
92XI
Equal Protection of Laws
92k224
Sex Discrimination
92k224(2)
k. Particular Discriminatory Practices.
Most Cited Cases
76E
Child Support
76EI
In General
76Ek2
Constitutional and Statutory Provisions
76Ek4
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
134
Divorce
134V
Alimony, Allowances, and Disposition
of Property
134k230
Permanent Alimony
134k245
Modification of Judgment or Decree
134k245(2)
k. Grounds and Rights of Parties.
Most Cited Cases
76E
Child Support
76EVI
Modification
76EVI(B)
Particular Factors and Grounds
76EVI(B)2
Factors Relating to Obligors
76Ek255
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
76E
Child Support
76EIX
Enforcement
76Ek440
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.
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