Contempt. Marriage and Divorce. Parent and Child. Equity Pleading and Practice, Exceptions, Contempt proceedings.
Upon a bill of exceptions allowed by a judge of the Superior Court in proceedings for contempt in violating of a decree in divorce proceedings, it was stated, that, inasmuch as upon the merits the conclusion reached by the trial court was right, this court did not consider nor undertake to decide whether questions of law arising in such contempt proceedings could be brought here by a bill of exceptions. At common law, if a father is willing to support his child in his own home and the child elects to stay away without justifiable cause, the father, in the absence of an order of court, is not liable for the child's support while he remains away. A decree in divorce proceedings ordering that the care and custody of minor children of the parties be given to the father, the libellee, and that "the libellant shall have the right to visit said minor children at reasonable times, and shall have the custody of them, or either of them, for reasonable periods during vacation seasons until the further order of the court," since it contains no order for the maintenance of the children does not suspend the common law as to the father's duty to support them, and the question, whether he unreasonably neglects to support them, cannot be determined upon a petition that he be adjudged in contempt for violation of the decree.
SANDERSON, J.
This is a petition for contempt brought by the libellant, alleging that the libellee has refused and neglected to provide for his children in violation of a decree entered in the divorce proceedings ordering that "the care and custody of Philip L. Creeley and Thomas V. Creeley, the minor children of the parties hereto, be and hereby is given to the libellee, Oscar S. Creeley, but the libellant shall have the right to visit said minor children at reasonable times, and shall have the custody of them, or either of them, for reasonable periods during vacation seasons until the further order of the court." The case was referred to a master and at the hearing on his report the judge ordered that a decree be entered dismissing the petition. The libellant has presented by a bill of exceptions the questions of law sought to be raised. Inasmuch as upon the merits the conclusion reached by the trial court was right, we have not considered nor undertaken to decide whether questions of law arising in contempt proceedings can be brought to this court by bill of exceptions. See Commonwealth v. McNary, 246 Mass. 46, 48. New York Central Railroad v. Ayer, 253 Mass. 122, 127, 128.
At common law a father is entitled to the custody of his minor children and, if of sufficient ability, is bound to support them. Commonwealth v. Briggs, 16 Pick. 203, 205. Brow v. Brightman, 136 Mass. 187. Treasurer Receiver General v. Sermini, 229 Mass. 248, 251. Accompanying this obligation to support is the right on the part of the father to the custody, society and services of the child. Angel v. McLellan, 16 Mass. 27, 29. Foss v. Hartwell, 168 Mass. 66, 67. If the father is deprived of the custody of his child by order of court, it is held in this Commonwealth that the common law duty to support ceases and, apart from statute, his obligation in this respect is then to be determined by judicial decree. G.L.c. 208, § 28. Brow v. Brightman, supra. Stone v. Duffy, 219 Mass. 178. Miller's Case, 244 Mass. 281, 283. If the father is willing to support his child in his own home and the child elects to stay away without justifiable cause, the father is not liable for his support while remaining away, in the absence of any order of court. Angel v. McLellan, supra. Foss v. Hartwell, supra. If the question, whether the father unreasonably neglected to support his children, were open on this petition, the court would be justified by the findings in reaching the conclusion that the petition should be dismissed. But in the decree giving to the libellee custody of the children for a portion of the year, there was no order for their maintenance, and during the periods when they were in his custody under this order his obligation to provide for them remained as it was at common law. In refusing to contribute to their support he has violated no order of the court, and the question, whether he has unreasonably neglected to support them, cannot be determined on this petition. No reversible error appears in the refusal of the court to grant the libellant's requests for rulings.
Exceptions overruled.