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
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))
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.