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Cases
Used to Justify Support Payments By
Husband Were in Cases of Neglect and
Abuse |
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These
Cases are now used to Justify Alimony
when a Father has Done Nothing wrong |
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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.
It is time to adjust BOTH sides of
this! |
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- Creely v. Creely 258 MA 460
(1927) (At common law a father
is entitled to the custody of
his minor children and
).
- Smith's Case, 322 MA 186 (1947)
(The liability of a father to
support a minor child living with
the mother, who had left her husband
for justifiable cause or had been
deserted by him, was determined
in accordance with previous decisions
at common law and
).
- Broman v. Byrne, 322 MA 578
(1948), (At common law a father
is entitled to the custody of
his minor children,
).
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LEXSEE
176 MASS. 229 |
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ELIZABETH BUCKNAM v.
GEORGE C. BUCKNAM |
[NO NUMBER IN ORIGINAL] |
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Supreme Judicial Court
of Massachusetts, Middlesex |
176 Mass. 229; 57 N.E.
343; 1900 Mass. LEXIS 892 |
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March
26, 1900
May 18, 1900 |
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DISPOSITION:
[***1] |
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Order affirmed. |
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HEADNOTES: |
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Separate Support -- Relations of Husband
and Wife -- Constitutional Law. |
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COUNSEL: |
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S.
K. Hamilton & T. Eaton, for the
respondent.
F. S. Hesseltine, for the petitioner. |
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JUDGES: |
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Present: HOLMES, C.J., KNOWLTON, MORTON,
BARKER, & LORING, JJ. |
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OPINIONBY: |
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KNOWLTON |
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OPINION: |
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[*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 |
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[*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.
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LEXSEE
120 MASS. 320 |
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Harriet E. Bigelow
vs. Alexander T. Bigelow. |
[NO NUMBER IN
ORIGINAL] |
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SUPREME COURT
OF MASSACHUSETTS |
120 Mass. 320;
1876 Mass. LEXIS 182 |
May 6, 1876,
Decided |
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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."
[**2]
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. |
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DISPOSITION:
Order affirmed. |
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Headnotes |
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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. |
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COUNSEL:
G. W. Morse & A. S. Hall, for the
respondent. |
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C. H. Chellis, for the petitioner. |
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JUDGES: Gray,
C. J. Ames & Morton, JJ., absent. |
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OPINIONBY:
Gray |
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OPINION: |
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[*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.
Order affirmed.
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