400 N.E.2d 1330
9 Mass.App.Ct. 339
A. SILVIA v. Diane M. SILVIA.
Appeals Court of Massachusetts, Plymouth.
Argued Dec. 14, 1979.
Decided March 5, 1980.
Father appealed from judgment of the Probate
Murphy, J., which denied his petition for modification. The Appeals
Dreben, J., held that: (1) duty of child support was
imposed upon the
as well as the husband so that wife's assets and income should have
considered in assessing the husband's petition, and (2) admission of
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
ability of the husband to pay.
Reversed and remanded.
Robert Sylvia, pro se.
Before ARMSTRONG, PERRETTA and DREBEN, JJ.
Robert A. Silvia (husband) appeals from a
judgment entered on
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)
FN1. The husband
appeared before the Appeals
se. The record is insufficient for us to review the judgment insofar as
it relates to the denial of his motion for summary judgment, his motion
for costs, or his motion for revocation of a suspended sentence imposed
in 1977. Since the husband's complaint for contempt was continued
and since Diane's complaint for contempt was continued for review at a
later date, there is no final judgment before us relating to these
before us are whether the trial judge erred in precluding
relating to Diane's income and assets and in permitting testimony
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
evidence of the income of the husband's present wife.
 [9 Mass.App.Ct. 340] The governing statute
for the care and
of minor children after divorce is G.L. c. 208, s 28, as last amended
St.1976, c. 279, s 1. Section 28, set forth in the margin, (FN2)
FN2. "Upon a judgment
for divorce, or an action
parent, or of a next friend in behalf of the children, after notice to
both parents after such judgment, the court may make such judgment as
considers expedient relative to the care, custody and maintenance of
minor children of the parties, and may determine with which of the
the children or any of them shall remain, or may award their custody to
some third person if it seems expedient or for the benefit of the
and afterward may from time to time, upon the action of either parent,
or of a next friend, revise and alter such judgment or make a new
as the circumstances of the parents and the benefit of the children may
require. The court may make appropriate orders of maintenance, support
and education of any child who has attained age eighteen but who has
attained age twenty-one and who is domiciled in the home of a parent,
is principally dependent upon said parent for maintenance."
in relevant part provides that a court may from
time to time "revise
alter" its judgment or "make a new judgment, as the circumstances of
parents and the benefit of the children may require." The statute
to the "circumstances of the parents" and not the circumstances of the
male parent. "This means the court must look at the circumstances of
mother as well as the father . . ." Hursh v. Hursh, 26 Ill.App.3d 947,
950, 326 N.E.2d 95, 97 (1975) (similar statute containing term
of the parties"). See also Birge v. Simpson, 280 So.2d 482, 483
    Since the statute treats each
parent alike and
in this respect, there is no need to resort to legislative history.
v. Rice, 372 Mass. 398, 400, 361 N.E.2d 1305 (1977). Moreover, while s
28 first appeared in somewhat different form in St.1820, c. 56, s 1,
predating 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, rules which, we note,
not wholly clear. See e. g. Dumain v. Gwynne, 10 Allen 270, 272 (1865);
Gleason v. Boston, 144 Mass. 25, 27-29, 10 N.E. 476 (1887); Tornroos v.
R. H. White Co., 220 Mass. 336, 342-343, 107 N.E. 1015 (1915). The
is now an integral part of a [9 Mass.App.Ct. 341] comprehensive
FN3. Duties as to
children. Both parents have a
to support their children. G.L. c. 117, s 9, as appearing in St.1974,
787, s 1. G.L. c. 273, s 1, as appearing in St.1977, c. 848, s 2. G.L.
c. 273, s 4, as appearing in St.1977, c. 848, s 3. G.L. c. 273, s 8, as
amended through St.1960, c. 791. The power of the court to order either
parent to support children continues after the parents are separated,
c. 209, s 37, as amended through St.1976, c. 279, s 2, and also pending
a divorce. G.L. c. 208, s 20, as last amended by St.1977, c. 609, s 3.
The statute cited in the text of this opinion, G.L. c. 208, s 28,
for such orders after divorce. Both parents have a duty to support
illegitimate children. G.L. c. 273, s 15, as appearing in St.1977, c.
s 6. They are both liable for certain willful acts of children in their
custody. G.L. c. 231, s 85G, inserted by St.1979, c. 172.
Duties as to spouse.
Each spouse has a duty to
the other and may bring an action against the other for support and the
support of minor children whether or not the spouses are living apart.
G.L. c. 209, s 32, as last amended by St.1977, c. 984, s 1. While an
for divorce is pending, payment can be ordered to either spouse for the
other's support as well as for child support. G.L. c. 208, s 17, as
in St.1975, c. 400, s 21. After divorce, alimony or a portion of the
of either spouse may be awarded to the other, G.L. c. 208, s 34, as
in St.1977, c. 467, and an award of alimony or an annual allowance for
the spouse or children may be revised upon an action for modification
by either party. G.L. c. 208, s 37, as appearing in St.1977, c. 495.
and common law pattern which places marital and parental obligations
on both husband and wife. See Feinberg v. Diamant, --- Mass. ---, ---,
(1979) 1321, 1325, 1327.
389 N.E.2d 998 (1979). See also Knox v. Remick, 371 Mass. 433, 437,
358 N.E.2d 432 (1976); House v. House, 368 Mass. 120, 330 N.E.2d 152
When viewed in this context, there is no question that G.L. c. 208, s
imposes a duty of child support on the wife as well as on the husband.
See Wyman v. Wyman, 3 Mass.App. 358, 360, 330 N.E.2d 500 (1975). (FN4)
FN4. Other States have
imposed such a duty based
law, e. g., Picht v. Henry, 252 Iowa 559, 562, 107 N.W.2d 441 (1961),
statutory law, e. g., Muldrow v. Muldrow, 61 Cal.App.3d 327, 333, 132
48 (1976); Moezie v. Moezie, Superior Court of District of Columbia,
Division No. D 3535-71 (1973), reproduced in Davidson, Ginsburg, Kay,
Discrimination 250-255 (1974); Birge v. Simpson, 280 So.2d 482, 483,
Hursh v. Hursh, 26 Ill.App.3d 947, 950, 326 N.E.2d 95 (1975); Petition
of Quintana, 83 N.M. 772, 774, 497 P.2d 1404 (1972); Lord v. Lord, 96
434, 437, 409 N.Y.S.2d 46 (Sup.Ct.1978); Hill v. Hill, 40 Ohio App.2d
5, 317 N.E.2d 250 (1973).
There is nothing in G.L. c. 208, s 28, which supports the conclusion
of the trial judge that a mother is [9 Mass.App.Ct. 342] liable for
of minor children only if the father fails or is unable to provide for
their support. Accordingly, Diane's assets and income, if any, must be
considered in assessing the husband's petition for modification. Since
the duties of child support prescribed by the statute are fully
with the Equal Rights Amendment, (FN5)
FN5. Article 106 of the
Amendments to the
of the Commonwealth, adopted November, 1976, amending art. 1 of the
we need not consider the effect of that amendment (FN6)
FN6. There are numerous
cases which have found,
on such an amendment, an equal duty of support on the mother. See
Kurtz, The State Equal Rights Amendments and Their Impact on Domestic
Law, 11 Fam.L.Q. 101, 143-146 (1977-1978), and cases cited. See also
v. Rand, 280 Md. 508, 516, 374 A.2d 900 (1977).
or of other constitutional provisions. See Commonwealth v. Mackenzie,
368 Mass. 613, 615-618, 334 N.E.2d 613 (1975). See also Orr v. Orr, 440
U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979).
   The husband also argues that the
judge should not
evidence as to his present wife's income. The admission was proper.
a second marriage does not relieve a spouse of marital and parental
O'Brien v. O'Brien, 325 Mass. 573, 576, 91 N.E.2d 775 (1950); Pemberton
v. Pemberton, --- MASS.APP. ---, --- , --- N.E.2D ----(FNB)
Mass.App.Ct.Adv.Sh. (1980) 9, 14.
(1980), and although a second husband or wife does not share the
duty to obey a support order directed toward the other spouse, see
v. Krokyn, --- Mass. ---, --- (FNc),
(1979) 1417, 1429.
390 N.E.2d 733 (1979), the income and assets of second spouses are
part of the circumstances relevant to the ability of parents to use
own resources to contribute to the support of their children. Birge v.
Simpson, 280 So.2d 482, 483 (Fla.App.1973). Aura v. Aura, 342 So.2d
1201 (La.App.1977). See Smith v. Smith, 13 Wash.App. 381, 386, 534 P.2d
1033 (1975) (community property State).
While we do not decide what circumstances other
the parties are to be taken into account, we note that in the cognate
of separate support where the term "circumstances of the parents" is
used, the Legislature has provided extensive but not exclusive guide
[9 Mass.App.Ct. 343] See the third and fourth paragraphs of G.L. c.
s 32, inserted by St.1977, c. 984, s 1. (FN7)
FN7. These two
"In determining the
amount of a support order,
to be made, the court shall consider, but is not limited to, the
factors, to the extent pertinent and raised by the parties: (a) the net
income, assets, earning ability, and other obligations of the obligor:
(b) the number and ages of the persons to be supported; (c) the
incurred by the obligor and the persons to be supported for the
of life, and the usual standard of living of the persons to be
(d) the assets and net earnings, including a deduction for the
for childcare, of the persons to be supported; (e) the marriage or
of any person being supported; and (f) the capacity of any person being
supported or having custody of supported children, except persons under
eighteen years of age, to work or to make reasonable efforts to obtain
employment, including the extent of employment opportunities in fields
in which such person is suited for employment, the necessity for and
to said person of job training programs, and the extent to which said
is needed during business hours by members of the family and the
to said person of child care services and the extent to which such
needs to attend school to obtain skills necessary for employment.
"No order shall
leave an obligor with less
is required to provide him minimum subsistence, including food,
utilities, clothing and the reasonable expenses necessary to travel to
or obtain employment."
The judgment is reversed, and the case is remanded for further
consistent with this opinion.
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