Ellen B. Kaplan for Sabina Sonya Tick.
Douglas S. Shapiro for Eugene E. Tick.
The plaintiff, Sabina Sonya Tick, appeals from the dismissal, for lack of personal jurisdiction and of proper service, of her complaint for contempt. A resident of New York, the plaintiff sought enforcement of a judgment for divorce. The defendant, Eugene E. Tick, is a resident of Connecticut. Having transferred the case to this court on our own motion, we affirm.
We believe that our analysis in Morris v. Morris, ante 1001 (1988), is dispositive. The plaintiff failed to meet the threshold jurisdictional requirement of the Massachusetts long arm statute. Actions as "to all obligations or modifications of alimony, custody, child support or property settlement," where long arm jurisdiction is sought over the defendant, must be instituted by a resident plaintiff. G. L. c. 223A, Section 3 (g) (1986 ed.). See G. L. c. 223A, Section 3 (h) (1986 ed. & Supp. 1987); Morris, v. Morris, supra. Thus, it is unnecessary to reach the issues of proper service or of personal jurisdiction over this defendant.
David A. Grossbaum, Assistant District Attorney, for the Commonwealth.
Michael P. Hickey for the defendant.
This case presents the same issue as the one we decided today in Commonwealth v. Warren, ante 137 (1988). The defendant was indicted for armed robbery arising out of a hold-up of a McDonald's restaurant in Lynn on March 22, 1986. He moved to suppress all out-of-court and in-court identifications of him by three witnesses to the robbery, on the ground that the identifications were the product of unnecessarily suggestive police procedures. After a hearing, a judge suppressed the identifications made by witnesses Cheryl Brinton and Debra Behen. A single justice of this court
granted the Commonwealth leave for an interlocutory appeal. We took the case on our own initiative and now reverse the order of suppression.
As in Commonwealth v. Warren, supra, the judge concluded that the police photographic identification procedures "were fair and not suggestive. The defendant was not denied due process." Nevertheless, he suppressed the identifications made by Brinton and Behen because he found them "unreliable and fraught with danger."
We reverse the suppression order because, as we held in Warren, supra at 139, the due process issue was the sole issue before the judge, and it was resolved in favor of the Commonwealth. The defendant does not challenge that determination. Once the judge concluded that the police photographic identification procedures were valid, the witnesses' reliability was no longer at issue on the motion to suppress. The order suppressing the identification evidence must be reversed.