MISC 89820

June 12, 1978

Randall, J.


This is a petition to remove a cloud on petitioner's title under c. 240, § 1 and c. 185, § 1(d) [Note 1]. A hearing was held on May 18, 1978. The locus in question is the land and building known and numbered as 64 Gayland Road, Needham, Massachusetts, formerly the marital home of the petitioner and respondent and owned by them as tenants by the entirety. (Exhibit No. 1, Globerson interrogatories). The alleged cloud arises as a result of two separate probate court proceedings, one for separate support and the other for divorce.

The first probate court order stems from the following background:

In February 1974 petitioner filed a petition for separate support, under G. L. c. 209, §32, which is Norfolk County Probate Court case #7450102. The respondent accepted service of the citation. (Exhibit No. 1). Thus the probate court had personal jurisdiction of the respondent. The probate court, by a decree dated December 19, 1974, granted the petitioner's petition and ordered the respondent to convey to petitioner all his right, title and interest in and to the real estate situated at 64 Gayland Road, Needham. (Exhibit No. 1). The respondent did not comply with this order. The petitioner recorded the probate court's order in the Norfolk County Registry of Deeds on March 27, 1975 (Exhibit No. 2) and claims that the recording of this order vested in her full title to locus under G. L. c. 209, §32D. The respondent, citing DiMarzio v. DiMarzio, 2 Mass. App. Ct. 174 (1974), argues that the probate court had no power or authority to order the respondent to convey his interest in locus to petitioner and that therefore the petitioner is not now the sole owner of the locus.

In the DiMarzio case, the probate judge had entered a separate support decree ordering the conveyance of certain real estate. The Appeals Court noted that on a separate support petition under c. 209, §32 only provisions for support are proper; such a petition cannot serve as a vehicle for a permanent division of the properties of the parties. The Court, reviewing the probate decree, noted that the conveyance had not been decreed in order to meet a specific present need of the wife, and therefore concluded the decree improperly effectuated a division of the parties' property. Thus, the DiMarzio case does not hold that a probate court has no power under any circumstances to order a conveyance of real estate upon a petition for separate support filed under c. 209, §32; the propriety of such a decree depends upon the circumstances. Apparently, respondent's argument is that the probate court's decree in case #7450102 was not for the purpose of meeting a present need of his wife. The short answer to this argument is that the Land Court does not sit in judgment upon the propriety of the probate court's decree and of course is not a court to which an appeal from the probate court can be taken. There is no question that the probate court had jurisdiction to entertain the separate support action. If the probate court's decree was erroneous, the remedy was appeal. There is no indication respondent appealed this probate court decree, and he cannot now collaterally attack it here. The Land Court must accept the validity of this probate decree.

The second probate court decree questioned arose from a divorce proceeding between the parties, being Norfolk Probate No. 75M0840-D1. In this proceeding the probate court appointed a special master to convey the respondent's interest in locus to petitioner. The special master signed and recorded a deed purporting to convey to the petitioner all of respondent's right, title and interest in locus. [Note 2] The petitioner alleges that this conveyance was improper because the probate court had no personal jurisdiction over the respondent in the divorce action and that therefore this conveyance constitutes a cloud upon petitioner's title. Petitioner claims that her title became absolute as a result of the separate support decree and the recording thereof under the provisions of G. L. c. 209, §32D. If this is so, the second decree appointing the special master and his deed of conveyance to the petitioner was unnecessary as the petitioner already had title under the first probate decree. Petitioner claims that this is a cloud upon her title and seeks to have it removed.

The respondent contends that personal jurisdiction over him was required before the probate court could appoint a special master to transfer respondent's interest in locus (but see Blitzer v. Blitzer, 361 Mass. 780 , (1972)) and that since there was no personal service upon him in the divorce case the probate decree 75M0840-D1 is void and subject to collateral attack by him. The Court need not determine whether the probate court's order is void and subject to collateral attack here or whether the petitioner's remedy was to appeal that portion of the probate court decree in case no.75M0840-D1 to which she objects. For even if a collateral attack were permissible, the Court has no evidence before it from which to conclude whether or not the probate court had jurisdiction in the divorce case no. 75M0840-D1 to order the conveyance. Thus the title remains in the petitioner as a result of the first probate court decree recorded three months after it was made upon the respondent's failure to follow the probate court's order to convey to the petitioner. The conveyance to the petitioner by the special master under the second probate order would seem to be superfluous as the respondent did not appeal the first probate order. It would appear to have the effect of a confirmatory deed, and rather than a cloud on petitioner's title, be additional support for it.

The respondent has filed a counterclaim alleging that petitioner is receiving rental income from locus and that he is entitled to a portion thereof. Insofar as the counterclaim is a collateral attack upon the separate support decree, it is not permissible; insofar as it is a collateral attack upon the divorce decree, the Court does not have sufficient facts before it to determine whether a collateral attack may be permitted.

Consequently, the petitioner's petition is dismissed and the respondent's counterclaim is dismissed.

Judgment accordingly.


[Note 1] Petitioner's brief argued the Court's jurisdiction was based on c. 185, §1(d) and c. 240, §1. Perhaps, the petition should be under c. 240, §6 and c. 185, §1(k). This point was not argued and is immaterial in view of the court's disposition.

[Note 2] The Court has no evidence of this divorce proceeding or deed.