CONSTANCE BEAULIEU VS. HENRY J. BEAULIEU, JR.

46 Mass. App. Ct. 850

January 12, 1999 – May 26, 1999

Middlesex County

Present: GREENBERG, KAPLAN, & LENK, JJ.

PETITION filed in the Probate Court for the county of Middlesex on March 11, 1974.

A complaint for contempt, filed on December 4, 1996, was heard by Judith Nelson Dilday, J., on a motion to dismiss.

Richard E Manelis for the plaintiff. Michael R Murray for the defendant.

LENK, J. In 1996, more than twenty-two years after her divorce, the appellant, Constance Beaulieu (wife), brought a complaint for contempt against her former husband, Henry J. Beaulieu, Jr. (husband), for protracted noncompliance with the child support and alimony provisions of a 1974 Massachusetts divorce judgment. The husband left Massachusetts shortly after the divorce and has essentially not returned. A Probate and Family Court judge allowed the husband’s motion to dismiss for lack of personal jurisdiction brought pursuant to Mass.R. Dom.Rel.P. 12(b)(2) (1975). The wife appeals, but only as to the dismissal of her complaint for the husband’s failure to pay alimony. We reverse. The husband filed for and was granted a Massachusetts judgment of divorce made absolute on November 13, 1974. Both husband and wife were residents of Massachusetts at the time. As part of the divorce judgment, the wife was awarded custody of the couple’s three minor children with reasonable rights of visitation to the husband. The husband was ordered to pay eighty dollars each week in child support, and to “pay the mortgage, principal, interest and taxes, home insurance[,] . . . utilities, not including telephone . . . and reasonable medical and dental expenses.” The wife claims that the husband did not make the ordered payments and is in significant arrears. While the wife remained in Massachusetts following the divorce, the husband left the Commonwealth in 1976, returning once in the early 1980’s, and currently resides in Arizona. The three children of the marriage are now all grown, the youngest having reached majority in 1987.

In order to establish personal jurisdiction over a nonresident defendant, there must be statutory authorization for the exercise of personal jurisdiction and, if there is such authorization, the exercise of personal jurisdiction must be consistent with basic due process requirements mandated by the United States Constitution. Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1 , 6-7 (1979). General Laws c. 223A, s. 3, as amended through St. 1993, c. 460, s. 86, the Massachusetts long-arm statute, provides in pertinent part that:

“A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s . . . (h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the commonwealth, if the action involves modification of such order or orders and the moving party resides in the commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party.”

Although the divorce was entered in 1974, G. L. c. 223A may be retrospectively applied, Packard v. Packard, 34 Mass. App. Ct. 543 , 546 (1993); consequently we look to the statute with its 1993 amendment. Section 3(h) provides the statutory authorization for the exercise of personal jurisdiction over the nonresident husband in this contempt proceeding, where the wife seeks enforcement of an alimony order entered by a court indisputably having at the time personal jurisdiction over both the husband and the wife. Like separate support and child support orders, see Kennedy v. Kennedy, 10 Mass. App. Ct. 113 , 116-117 (1980), and Packard v. Packard, 34 Mass. App. Ct. at 547, the alimony ordered here is subject to modification, G. L. c. 208, s. 37, is accordingly not final, and is subject to the retrospective application of s. 3(h). Unlike the husband’s child support obligation which terminated in 1987 by reason of the youngest child’s majority, the husband’s alimony obligation is ongoing. Compare Heider v. Heider, 34 Mass. App. Ct. 634 , 636-638 (1993). Section 3(h) permits the exercise of continuing personal jurisdiction over the husband in these circumstances.

The remaining issue is whether the exercise of personal jurisdiction authorized by s. 3(h) is consistent with constitutional due process. While the Probate Court judge found the statutory basis for personal jurisdiction, she determined that the requirements of constitutional due process had not been met. We disagree. The resolution of the issue turns upon whether the husband’s minimum contacts with the Commonwealth are such that “the maintenance [of this contempt proceeding] does not offend ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U.S. 457, 463 [19401.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Mannor v. Mannor, 46 Mass. App. Ct. 46 , 50-51 (1998). The activities of the husband meet this test.

The husband lived in Massachusetts and initiated divorce proceedings in the Commonwealth which resulted in the 1974 judgment and its attendant and continuing obligation upon him to pay alimony. The wife’s enforcement action arises from that very proceeding, which the husband initiated. His subsequent and lengthy voluntary departure from the Commonwealth neither attenuates nor eradicates the substantiality of these contacts with Massachusetts. The husband does not complain of insufficient service, and we presume he has had reasonable notice and opportunity to be heard. No reasonable notions of fair play and substantial justice are offended by contempt proceedings against him to enforce the alimony provisions of the 1974 judgment. Compare Restatement (Second) of Conflict of Laws s. 26 (1971) [Note 1].

The husband’s request for counsel fees is denied, and the matter is remanded to the Probate Court for further proceedings.

Judgment reversed.

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Footnotes

[Note 1] That section provides: “If a state obtains judicial jurisdiction over a party to an action, the jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. Reasonable notice and reasonable opportunity to be heard must be given the party at each new step in the proceeding.” See illustration 1 to the section.