120 MASS. 320
E. Bigelow vs. Alexander T. Bigelow.
NUMBER IN ORIGINAL]
COURT OF MASSACHUSETTS
Mass. 320; 1876 Mass. LEXIS 182
6, 1876, Decided
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.
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
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
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