4 Mass. App. Ct. 864

December 8, 1976

On June 30, 1975, the plaintiff delivered to the defendant his written resignation from the position of Counsel III in the Department of Labor and Industries. On the following day the plaintiff informed the defendant that he was withdrawing his resignation. The defendant stated that the resignation had been accepted and refused to permit its withdrawal. Thereupon the plaintiff brought the present action seeking a declaration that the resignation was of no legal effect as it had been obtained by means of threats, coercion, and duress and had been withdrawn prior to its acceptance. The judge found that no threats had been made by the defendant to the plaintiff, that there had been no coercion or duress on the part of the defendant in order to bring about the resignation, and that it had been the plaintiff's intention to resign. Those findings were supported by the evidence and were not clearly erroneous. We do not disturb them. Mass.R.Civ.P. 52 (a), 365 Mass. 816 (1975). Marlow v. New Bedford, 369 Mass. 501 , 508 (1976). For the same reason we do not disturb the judge's finding that the defendant had accepted the resignation on June 30, 1975. Once the resignation had been accepted, the rights of the parties were determined. Martin v. City Manager of Worcester, 349 Mass. 760 (1965). Compare Warner v. Selectmen of Amherst, 326 Mass. 435 , 438-439 (1950); Campbell v. Boston, 337 Mass. 676 , 678 (1958). However, as the judgment entered does not declare the rights of the parties, it is to be modified by striking out paragraphs 1 and 2 and by inserting in place thereof a declaration that the defendant's acceptance of the plaintiff's resignation dated June 30, 1975, was effective and terminated the plaintiff's employment as Counsel III in the Department of Labor and Industries. As so modified the judgment is affirmed.

So ordered.


4 Mass. App. Ct. 864

December 15, 1976

That portion of the parties' separation agreement which gave rise to this action provided, inter alia, that the defendant's obligation to support their son shall cease upon "the emancipation of the child before age 21" (emphasis supplied). No serious argument is made that the son is financially emancipated. Although, in his answer, the defendant denied the allegation that the son is not emancipated, his affidavit failed to allege specific facts showing that the son is, indeed, financially emancipated. The defendant claims only that emancipation occurred as matter of law when the son reached eighteen in June, 1974, by virtue of the lowering of the age of majority in this Commonwealth from twenty-one to eighteen. [Note 1] We need not decide whether our law applies or the law of New Jersey where the agreement was executed and where the plaintiff and the defendant last lived together in 1961

Page 865

prior to their divorce. Molinar v. Western Elec. Co. 525 F.2d 521, 527-528 (1st Cir. 1975), cert. den. 424 U.S. 978 (1976). Under New Jersey law, as under ours, there is no fixed age when emancipation occurs. It does not occur automatically upon reaching the age of majority. Straver v. Straver, 26 N.J. Misc. 218, 222 (Ch. 1948). Schumm v. Schumm, 122 N. J. Super. 146, 150 (Ch. 1973). Consequently, neither the change in the age of majority in New Jersey from twenty-one to eighteen (N.J. Stat. Ann. 9: 17B-1, inserted by L. 1972, c. 81, Section 1, effective January 1, 1973) nor the corresponding change in our law automatically relieved the defendant of his support obligation. As the defendant has observed in his brief, attaining the age of majority in New Jersey is only prima facie evidence of emancipation. Goldstein v. Goldstein, 4 N.J. Misc. 711, 712 (Sup. Ct. 1926). Straver, supra, at 222. Schumm, supra. To avoid summary judgment, an opposing party may not rest on his pleadings or general denials. He must set forth specific facts showing that there is a genuine triable issue. Community Natl. Bank v. Dawes, 369 Mass. 550 , 553 (1976). It follows, since the defendant's affidavit did not set forth facts showing actual emancipation, that no genuine issue as to a material fact was raised (Mass.R.Civ.P. 56 [c], 365 Mass. 824 [1974]), and that summary judgment was correctly entered in the Probate Court for the plaintiff. The judgment, however, is to be modified to reflect, as the present judgment does not, the possibility of the occurrence, prior to the son's reaching twenty-one, of any of the conditions set forth in the agreement which would release the defendant from his obligation to provide further support for the son until he reaches that age.

So ordered.


[Note 1] G. L. c. 4, Section 7, Fifty-First, inserted by St. 1973, c. 925, Section 1, effective January 1, 1974. See G. L. c. 231, Section 85P, inserted by St. 1975, c. 315, Section 1, effective January 1, 1974. See now St. 1976, c. 279.