Cultural Sociology of Divorce: An Encyclopedia

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Edited by: Robert E. Emery

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      Reader's Guide

      About the Editor

      Robert E. Emery, Ph.D., is professor of psychology and director of the Center for Children, Families, and the Law at the University of Virginia (UVA), where he has spent his entire academic career (beginning in 1981). He received his B.A. from Brown University in 1974 and his Ph.D. from the State University of New York at Stony Brook in 1982.

      Emery's research focuses on family relationships and children's mental health, including parental conflict, divorce, child custody, family violence, and genetically informed studies of all these issues, as well as associated legal and policy issues. His 1982 Psychological Bulletin paper, “Interparental Conflict and the Children of Discord and Divorce,” was designated a Citation Classic by the Institute for Scientific Information. His Child Development paper, “Family Members as Third Parties in Dyadic Family Conflict: Strategies, Alliances, and Outcomes” (with Samuel Vuchinich and Jude Cassidy), won the 1989 Outstanding Research Publication Award from the American Association of Marriage and Family Therapy.

      In December 2000, he was asked to present his research findings to the National Academy of Sciences. The Association of Family and Conciliation Courts presented the Distinguished Researcher and Myer Elkin Address awards to Emery in 2002. His book, The Truth About Children and Divorce, was a finalist for the Books for a Better Life Award and Library of Virginia Literary Award in 2005. In 2012, Division 43 of the American Psychological Association honored him with their award for Distinguished Contributions to Family Psychology.

      Emery is the author of over 125 scientific publications. He has also authored several books. Marriage, Divorce, and Children's Adjustment (1999) won the Outstanding Academic Book award from Choice magazine. Abnormal Psychology (2012), with Thomas Oltmanns, is in its seventh edition. Emery has also written Essentials of Abnormal Psychology (2000) with Thomas Oltmanns. His book, Renegotiating Family Relationships: Divorce, Child Custody, and Mediation (2011), was translated into Italian. His 2004 book, The Truth About Children and Divorce: Dealing With the Emotions So You and Your Children Can Thrive (2006), is written for a broad audience and was featured when Emery was featured on the Today Show, Good Morning America, The Jane Pauley Show, National Public Radio, in Newsweek and Time magazines, and in many other print and electronic media. The book has been translated into Italian and Korean.

      In addition to his research, teaching, and administrative responsibilities, Emery maintains a practice as a clinical psychologist and divorce mediator. He is the father of five children.

      List of Contributors

      • Angela Abela

        University of Malta

      • Wael M. Abuhasan

        Arab American University-Jenin

      • John Felipe Acevedo

        University of Chicago

      • Mary Ann Adams

        University of Southern Mississippi

      • Michele Adams

        Tulane University

      • Kari Adamsons

        University of Connecticut

      • C. J. Aducci

        Office of Strong Family Development, Chickasaw Nation

      • St. Clair Alexander

        Loma Linda University

      • Jill Allison

        Memorial University of Newfoundland

      • Mary Beth Andereck

        University of Southern Mississippi

      • Share Angel

        University of Nevada, Reno

      • Y. Gavriel Ansara

        University of Surrey

      • Alicia Armstrong

        University of Missouri

      • Laura Arosio

        University of Milan-Bicocca

      • Maureen Baker

        University of Auckland

      • Stephanie Alice Baker

        University of Greenwich

      • Winetta A. Baker

        Loma Linda University

      • Joyce Baptist

        Kansas State University

      • Deborah L. Bauer

        University of Central Florida

      • Eboni J. Baugh

        East Carolina University

      • Suzanne K. Becking

        Fort Hays State University

      • Mary L. Benedict

        Attorney at Law

      • Mark J. Benson

        Virginia Tech

      • Sara Benson

        University of Illinois College of Law

      • Anna A. Berardi

        George Fox University

      • Israel Berger

        University of Roehampton

      • Zemed Berhe

        Seton Hall University

      • Magdalena Bielenia-Grajewska

        University of Gdansk

      • Anna Bohlinger

        University of Minnesota

      • Sarah Boslaugh

        Kennesaw State University

      • Odette Boya Resta

        Johns Hopkins University

      • Denise J. Brandon

        University of Tennessee Extension

      • Nancy Ellen Brauhn

        Mount Mercy University

      • Karina S. Bravo

        California State University, San Bernardino

      • Cornelia Brentano

        California State University, Dominguez Hills

      • Pamela D. Bridgewater

        American University

      • Andrew S. Brimhall

        Saint Louis University

      • Jennifer Bronson

        Howard University

      • David Gregory Brooks

        University of Missouri

      • Edna Brown

        University of Connecticut

      • Joseph Brown

        University of Louisville

      • Michael J. Broyde

        Emory University

      • Regina M. Bures

        University of Florida

      • Peter Buzzi

        Open University

      • Rodrigo J. Carcedo

        Universidad de Salamanca, Spain

      • Claire Cartwright

        University of Auckland

      • Shannon Casey

        Alliant International University

      • Monica J. Casper

        Arizona State University

      • Ingrid E. Castro

        Massachusetts College of Liberal Arts

      • Raúl Medina Centeno

        University of Guadalajara

      • Soyoung Choun

        Oregon State University

      • Susan Cody-Rydzewski

        Georgia Perimeter College

      • Charles Lee Cole

        University of Louisiana at Monroe

      • Marilyn Coleman

        University of Missouri

      • Zhen Cong

        Texas Tech University

      • Teresa M. Cooney

        University of Missouri

      • Paula Cordeiro

        Technical University of Lisbon

      • Shonda Craft

        University of Minnesota

      • John Crouch

        Crouch & Crouch Family Law

      • Annamaria Csizmadia

        University of Connecticut

      • Ming Cui

        Florida State University

      • Virginia Russell Curley

        Nebraska Methodist College

      • Loni Dansie

        University of Missouri

      • Gareth Davey

        Hong Kong Shue Yan University

      • Corrie L. Davis

        Kennesaw State University

      • Piyanjali de Zoysa

        University of Colombo

      • David H. Demo

        University of North Carolina at Greensboro

      • Meghan DeVito

        West Virginia University

      • Aasiyah Dhanani

        University of British Columbia

      • Vasudev Dixit

        Seton Hall University

      • Kieu-Anh Do

        University of Nebraska, Lincoln

      • Melanie L. Duncan

        University of Florida

      • Madeline Duntley

        Bowling Green State University

      • Jaroslav Dvorak

        Klaipeda University

      • Peter Economou

        Seton Hall University

      • Sothy Eng

        Lehigh University

      • Melike Erdogan

        Canakkale Onsekiz Mart University

      • Caitlin S. Faas

        Virginia Tech

      • Anthony J. Faber

        Southeast Missouri State University

      • Breanne Fahs

        Arizona State University

      • Isabella Ferrari

        University of Modena and Reggio Emilia

      • Carlene O. Fider

        Loma Linda University

      • Mark A. Fine

        University of North Carolina at Greensboro

      • Gordon E. Finley

        Florida International University

      • Jacki Fitzpatrick

        Texas Tech University

      • Jeanne Flora

        New Mexico State University

      • Stephenie Foster

        American University

      • George R. Franks

        Stephen F. Austin State University

      • Melanie A. Friend

        CowanGates

      • Caren J. Frost

        University of Utah

      • James L. Furrow

        Fuller Theological Seminary

      • Constance T. Gager

        Montclair State University

      • Lawrence H. Ganong

        University of Missouri

      • Chelsea Garneau

        Florida State University

      • Sarah Garrison

        University of Southern Mississippi

      • Mark Goldfeder

        Emory University

      • Chanar Goodrich

        University of Utah

      • Edward Allen Gordon

        Independent Scholar

      • Mellissa S. Gordon

        Florida State University

      • Heath A. Grames

        University of Southern Mississippi

      • Neil S. Grossman

        Parenting Coordination Association of New York

      • Neil Guzy

        University of Pittsburgh at Greensburg

      • Myra Hamilton

        University of Bristol

      • Donna Hancock

        University of Georgia

      • Vicki Harman

        Royal Holloway, University of London

      • Steven M. Harris

        University of Minnesota

      • Cynthia G. Hawkins

        Stetson University College of Law

      • Francis Frederick Hawley

        Western Carolina University

      • Jason Helfer

        Knox College

      • Toni Hill

        University of Nebraska, Kearney

      • Jessica Hilling

        West Virginia University

      • Waymon R. Hinson

        Office of Strong Family Development, Chickasaw Nation

      • W. Jeff Hinton

        University of Southern Mississippi

      • Aliya Hirji

        University of British Columbia

      • Sharon C. Hoffman

        Southeastern Louisiana University

      • Susan D. Holloway

        University of California, Berkeley

      • Karen Hooker

        Oregon State University

      • Jorden Hooper

        University of British Columbia

      • Kyle C. Horst

        Kansas State University

      • Claire Houston

        Harvard Law School

      • Ruth Houston Barrett

        Loma Linda University

      • Scott Huff

        University of Connecticut

      • Alishia Huntoon

        Oregon Institute of Technology

      • Nashaat Hussein

        Misr International University

      • Shann Hwa Hwang

        Texas Woman's University

      • Anthony James

        University of Missouri

      • Jessica Jean Baptiste

        Seton Hall University

      • Elizabeth N. Jones

        Western State College of Law

      • Karin Jordan

        University of Akron

      • Carolyn Wilkes Kaas

        Quinnipiac University School of Law

      • Michael F. Kalinowski

        University of New Hampshire

      • Jessica Kaneakua

        University of Connecticut

      • Erica Kanewischer

        Universitiy of Minnesota

      • Maria E. Kaufmann

        University of British Columbia

      • Nitasha Kaul

        University of Westminster

      • Abdul Khaleque

        University of Connecticut

      • Shenila Khoja-Moolji

        Teachers College, Columbia University

      • Aaron J. Kivisto

        Harvard Medical School Massachusetts General Hospital

      • Han-Jung Ko

        Oregon State University

      • Kevin J. Kohnke

        Concordia University Nebraska

      • Albert M. Kopak

        Western Carolina University

      • Erin Kostina-Ritchey

        Texas Tech University

      • Bill Kte'pi

        Independent Scholar

      • Antoinette Elisabeth Landor

        University of Georgia

      • Kyung-Hee Lee

        Virginia Tech

      • Ruth Limmer

        Georg Simon Ohm University of Applied Sciences

      • Rachel Lindstrom

        Kansas State University

      • Zephon Lister

        University of California, San Diego

      • Hui Liu

        Michigan State University

      • Celene Ayat Lizzio

        Harvard University

      • Kim Lorber

        Ramapo College of New Jersey

      • Sharon RedHawk Love

        University of Tennessee at Chattanooga

      • Kirby Lund

        University of North Dakota

      • Cynthia R. Mabry

        Howard University School of Law

      • Maryhelen D. MacInnes

        Michigan State University

      • Estoria (Esther) M. Maddux

        Kansas State University

      • Nita Makhija

        Seton Hall University

      • Lonnie R. Manuel

        Office of Strong Family Development, Chickasaw Nation

      • Marika Maris

        Seton Hall University

      • Melinda Stafford Markham

        Kansas State University

      • Charles McEvily

        Independent Scholar

      • Karen McGuffee

        University of Tennessee at Chattanooga

      • Brandyn-Dior McKinley

        University of Connecticut

      • Claudia Megele

        University of Hertfordshire

      • Shannon Mejía

        Oregon State University

      • Marcos Mendez

        Kansas State University

      • Katharina Miko

        Vienna University of Economics and Business

      • Matthew Miller

        University of Minnesota

      • Shirley J. Mills

        University of Texas-Pan American

      • Katherine Stamps Mitchell

        Louisiana State University

      • Zuzanna Molenda-Kostanski

        Seton Hall University

      • Jessica L. Moore

        Butler University

      • Mel Moore

        University of Northern Colorado

      • Martha Morgan

        Alliant International University

      • Bantu Morolong

        University of Botswana

      • Dimitri Mortelmans

        University of Antwerp

      • Danai S. Mupotsa

        University of the Witwatersrand

      • Felicia Law Murray

        Texas Woman's University

      • Ayumi Nagase

        University of California, Berkeley

      • Joaquim Negreiros

        Technical University of Lisbon

      • C. Brid Nicholson

        Kean University

      • Sylvia Niehuis

        Texas Tech University

      • Tim Oblad

        Texas Tech University

      • Yok-Fong Paat

        University of Texas at El Paso

      • Laura Palmer

        Seton Hall University

      • Maria-Carmen Pantea

        Babes-Bolyai University

      • Lauren M. Papp

        University of Wisconsin-Madison

      • Sangyoub Park

        Washburn University

      • Kay Pasley

        Florida State University

      • Justin Paulette

        Ashbrook Center for Public Affairs

      • Daniel Perlman

        University of North Carolina at Greensboro

      • Twila L. Perry

        Rutgers University School of Law, Newark

      • Raymond E. Petren

        Florida State University

      • Nora Phillips

        Texas Tech University

      • Scott W. Plunkett

        California State University, Northridge

      • James J. Ponzetti, Jr.

        University of British Columbia

      • Pedro R. Portes

        University of Georgia

      • Michelle Poulin

        University of North Texas

      • Narissra Maria Punyanunt-Carter

        Texas Tech University

      • Elizabeth Rholetter Purdy

        Independent Scholar

      • Shen Qin

        University of Nebraska, Lincoln

      • Sharon Quah

        University of Sydney

      • Maria L. Reid

        Florida International University

      • Alan Reifman

        Texas Tech University

      • Allison M. J. Reisbig

        University of Nebraska, Lincoln

      • Conroy Reynolds

        Loma Linda University

      • Wylene Rholetter

        Auburn University

      • Jason Ribner

        California School of Professional Psychology

      • Neil Ribner

        California School of Professional Psychology

      • Gwénola Ricordeau

        Université Lille 1

      • Barbara A. Riggs

        Indiana Wesleyan University

      • Michele Hinton Riley

        Saint Joseph's College of Maine

      • Kelly Roberts

        Great Plains Integris Family Medicine

      • Lisa H. Rosen

        Texas Woman's University

      • Elisabetta Ruspini

        University of Milano-Bicocca

      • Luke T. Russell

        University of Missouri

      • Margaret Ryznar

        Indiana University

      • Jennifer Sampson

        Universitiy of Minnesota

      • Antoinette W. Satterfield

        U.S. Naval Academy

      • Michelle M. Sauer

        University of North Dakota

      • Elena Schnabl

        University of Trento

      • David Schramm

        University of Missouri

      • Stephen T. Schroth

        Knox College

      • Ulrike Schuerkens

        École des Hautes Études en Sciences Sociales

      • Michaela Schulze

        University of Siegen

      • Astrid Schütz

        Otto-Friedrich University of Bamberg

      • Seth J. Schwartz

        University of Miami

      • Chris Segrin

        University of Arizona

      • Elisabeth Sheff

        Georgia State University

      • Constance L. Shehan

        University of Florida

      • Leslie Gordon Simons

        University of Georgia

      • Pat Sims

        University of Southern Mississippi

      • Malcolm L. Smith

        University of New Hampshire

      • Cathy Solheim

        University of Minnesota

      • Kristy L. Soloski

        Kansas State University

      • Patric R. Spence

        University of Kentucky

      • Sandra M. Stith

        Kansas State University

      • Lisa Strohschein

        University of Alberta

      • Sarah C. Stuchell

        Loma Linda University

      • Orsolya Szeibert

        Eötvös Loránd University

      • Xiaohui Tang

        Texas Tech University

      • Elizabeth Trejos-Castillo

        Texas Tech University

      • Ashley Nicole Tremble

        Western Michigan University

      • Marcella Bush Trevino

        Barry University

      • Jessica Troilo

        West Virginia University

      • Stephanie Trudeau-Hern

        University of Minnesota

      • Alejandro Varela

        Knox College

      • Sheila Vélez Martínez

        University of Pittsburgh

      • John Walsh

        Shinawatra University

      • Andrew J. Waskey

        Dalton State College

      • Adele Weiner

        Metropolitan College of New York

      • Glenna M. Weis

        Forest Institute

      • Brandan Wheeler

        Auburn University

      • Katharine Wickel

        University of Minnesota

      • Thulitha Wickrama

        Auburn University

      • Elizabeth Wieling

        University of Minnesota

      • Julie B. Wiest

        High Point University

      • Andrea K. Wittenborn

        Virginia Tech

      • Danaya C. Wright

        University of Florida, Levin College of Law

      • Yan Ruth Xia

        University of Nebraska, Lincoln

      • Deniz Yucel

        William Paterson University of New Jersey

      • Cigdem Yumbul

        University of Minnesota

      • Ulrike Zartler

        University of Vienna

      • Xiaoyun Zhang

        University of Nebraska, Lincoln

      • Zhenmei Zhang

        Michigan State University

      • Sabina Žnidaršic Žagar

        University of Primorska

      • James Zubatsky

        University of Minnesota

      Introduction

      Divorce is a painful and private unraveling for families and a sea of change for society. For parents and children, divorce publicly marks the unfolding of a long and difficult struggle; it is also the beginning of redefining family relationships, a renegotiation that may take as long and be every bit as painful as the coming apart.

      For society, divorce is a sharp break from tradition, a changed and still evolving definition of “family,” a burden on legal institutions, and a challenge for those concerned with the financial support and emotional well-being of children and single parents.

      The United States likes to lead the world—and it does when it comes to divorce, having the highest rate per capita in the industrialized world. Yet, divorce is not just an American problem. Divorce rates have skyrocketed throughout the developed and developing world, notably in northern Europe, Canada, Australia, and New Zealand, but also, if less so, in southern Europe and industrialized Asia, including South Korea and Japan, and increasingly in China and even socially conservative India, which historically has had one of the lowest rates of divorce in the world. Only two countries do not have a legal procedure for granting divorce, the Philippines and Vatican City.

      While the worldwide increase in divorce defies simple explanation, key influences include industrialization, changing roles for women in work and family life, and the rise of the individual versus the family as the basic unit of complex economies. Thus, the story of the causes—and consequences—of divorce includes economic change (often upheaval), a redefinition of gender roles, and a rising tide of individualism over collectivism. To be sure, these broad social forces are tempered by tradition and culture, yet they have not and cannot be fully resisted, despite fervent efforts to do so in some parts of the world, notably traditional Muslim societies.

      Culture influences divorce, its acceptability, and its consequences, and as such divorce offers a fascinating window into cultural assumptions and traditions about families, love, power, appropriate roles for men and women, and the value of children. Hollywood divorce epitomizes the consumerist, throw-away-marriage view found in the West, notably the disposable marriages of Kim Kardashian (to Kris Humphries in 2011, lasting 72 days) and Brittany Spears (to Jason Alexander in 2004, lasting two days, reportedly the shortest marriage in history).

      Such superficiality masks the emotional, interpersonal, and legal turmoil of marital dissolution in the United States and elsewhere, yet Hollywood divorce both reflects and creates a devaluing of marriage, commitment, and family. Consider the concept of “starter marriages,” a play on the term starter home, suggesting that divorce is a good thing for couples without children who get married for the wrong reasons. Contrast American starter marriages with the shame that accompanies divorce in the east. Divorce carries enormous social stigma in India, for example, particularly for women. An Indian woman who divorces is shamed for failing to live up to the principle of pativratya (complete devotion and sacrifice to her husband) irrespective of the reasons for divorce (such as abuse of her). As a result of her divorce, an Indian woman is likely to suffer extreme economic hardship, be forced to return to live with her family, perhaps become the object of sexual harassment because of her obviously “loose” values, and yet remain very unlikely to remarry.

      Causes and Consequences

      The causes and consequences of divorce are both complex and entangled. For example, low income is both a contributor to and an outcome of divorce. In the United States, lower-income families are more likely to divorce than their higher-income counterparts, and increasingly, low-income individuals in the United States are less likely to marry at all and instead cohabit outside of marriage or remain single.

      With the exception of the very wealthy, a decline in living standards is also an inevitable consequence, not just a cause, of divorce. Often overlooked, the obvious key to this inevitability is lost economies of scale, especially for families with children. Simple calculations, based on U.S. Labor Department estimates of the cost of living, demonstrate that a family of four living at the poverty level needs about 30 percent more income to maintain the same standard of living if they move from a single household into separate three- and one-person households.

      Other evidence shows that women bear a disproportionate share of financial hardship, even after accounting for income transfers including child support and spousal support (alimony). This is due both to general differences in earnings between women and men as well as to the added real costs and lost opportunity costs associated with raising children. The substantial majority of children still live primarily with their mothers following divorce.

      Like income, conflict is both a cause and a consequence of divorce. Marital strife obviously contributes to divorce, although, perhaps surprisingly, many divorces, at least in the West, are not preceded by notable conflict. In the second half of the 20th century, divorce became more acceptable socially and legally, hinged largely on the assumption that a separation would end children's exposure to family conflict, an experience that is both distressing and potentially destructive.

      Yet, ironically, not only are many marriages relatively free of conflict prior to dissolution, but a marital separation may also be the beginning, not the end, of intense child-focused disputes between former partners who remain parents. And evidence clearly indicates that parental conflict is a key contributor to the well-being of children. Children from high-conflict marriages fare better following divorce; children from relatively low-conflict marriages fare worse following divorce.

      Children Adjusting to Divorce

      How children adjust to divorce is a topic that has been widely debated both as a matter of policy and among social scientists. It is possible to “spin” research results according to one's prior agenda. Even parents in the same family may do so, such that the parent who wants a divorce often sees the children as doing fine, while the parent who does not is likely to see the children as devastated by divorce.

      Despite such personal debates, and various academic controversies, research on English-speaking samples shows that: (1) divorce is almost always stressful for children, typically only serving as a relief when conflict in the two-parent family was very intense, perhaps abusive; (2) divorce is associated with increase in the risk that children will suffer from various problems in behavior (such as misconduct), emotion (such as depression), and relationships (such as divorcing themselves) on the order of 50 percent to 300 percent depending on the particular problem; (3) despite the increased risk for psychological problems, it is simultaneously true the majority of children from divorced families are not “at risk” but, in fact, are resilient; (4) even resilient children from divorced families are likely to report painful memories about the past and ongoing emotional struggles with family relationships, for example, around the time of graduations or weddings; and (5) individual differences in risk and resilience are predicted by factors such as having at least one loving and firm parent, parental conflict that is contained between parents, economic stability, and having a good, involved relationship with the second parent. A notable lack and future need is better documentation of cultural influences on children's adjustment to a parental divorce. It seems safe to predict that children suffer more in societies where divorce is highly stigmatized and where there are few social or economic supports for children and parents from divorced families.

      Of course, divorce affects the mental and social health of adults as well as children. Depression is a common consequence of divorce, particularly a period of intense grief around the time of a marital separation. (Like economic hardship and conflict, depression also is a cause as well as a consequence of divorce.) Divorce also contributes to the long-term health and well-being of adults. Most dramatically, married adults live longer than their divorced counterparts.

      When a Marriage Breaks down

      People may marry for love, at least in the West, but the legal issues involved in divorce make it clear that a marriage is about far more (as was perhaps more clearly recognized historically in the United States and Europe and still is in other parts of the world). When a marriage breaks down, former partners must legally resolve two, broad concerns: what to do about their money and their children. Financial issues involve (a) dividing property, (b) spousal support (alimony), and (c) child support. Child-rearing matters focus on (a) where children will spend their time (physical custody) and (b) how parents will continue to make decisions together or separately (legal custody).

      Again, consideration of these matters offers a window into fascinating cultural assumptions and how they are changing. Less than two centuries ago, a man living in the United States owned both his property and his children in marriage and following divorce. In parts of the world, such “chattel” rules still apply. Today, however, equal legal rights for women and men in divorce are becoming increasingly common. In the West, property acquired during marriage is widely viewed as jointly owned, irrespective of who earned what income or who holds legal title. Similarly, mothers and fathers are increasingly expected to share some form of custody of their children, that is, joint custody which can include joint legal custody, joint physical custody, or both. Belgium and Denmark have taken the most dramatic step in this regard, embracing a standard of sharing equal parenting time following divorce. (Note: Denmark repealed its law while the encyclopedia was being compiled.)

      The legal grounds for obtaining a divorce are similarly revealing. No-fault divorce, which may be granted based on the request of one party or following a period of separation, is common in the United States and Europe. Historically, and in many countries today, a divorce must be granted on fault grounds, such as adultery, cruelty, or desertion. A contrast to the contemporary Western embrace of gender equality, fault grounds sometimes have and still do differ for men and women. For example, some forms of adulterous behavior might be more acceptable for husbands than for wives.

      Family as the Bedrock of Society

      As noted, divorce can be a struggle not only for individual families but for societies as well. The appropriate definition of “family” is a topic of sometimes fervent political and religious debate in many countries, including the United States. For religious or political reasons, some view marriage as sacred, procreation as the main purpose of sexual union, and the family as the bedrock unit of society.

      Others view marriage as choice, sex as recreational, children as optional, and family diversity as a new value to be embraced. While the gulf between such viewpoints is unlikely to be soon crossed, there is consensus that divorce and non-marital childbearing place economic burdens on families and thus on institutions concerned with the well-being of children and families. As one indicator of this, in the past a parent had died in nine out of 10 families in the United States who received social security benefits for children; among contemporary forms of welfare, both parents are alive for nine of 10 benefit recipients. Given this, it perhaps is not surprising that, in the United States at least, policies designed to reform welfare often included efforts to promote marriage.

      The reader can quickly gain an appreciation for the diversity not only in divorce, but also in family life, gender roles, and general well-being by browsing through entries from various countries around the world. Before delving into divorce, entry after entry for many nonindustrialized countries must first set a backdrop of family that will be jarring and hopefully enlightening to many Western readers. For example, what percentage of girls are married during their teen years? One answer: 30 percent of 15- to 19-year-old girls in Ethiopia are or have been married. Some other questions that you, the reader, will be confronted with as you flip through the entries from nonindustrialized countries are: How common is maternal and infant mortality? Are marriages arranged? Is polygamy an accepted and perhaps common practice? Is acquired immune deficiency syndrome (AIDS) rampant? Is marital rape legal and socially accepted? Do women have a right to own property?

      These questions—and the answers you will find throughout the encyclopedia—offer perspective to the Western reader concerned with issues like the status of joint custody laws or rates of divorce or cohabitation. (And you certainly will find information on these topics, which are very important issues in industrialized countries.) Articles about contemporary nonindustrialized countries should also cause the Western reader to reflect more deeply about the history of marriage, families, and divorce in the West.

      Family life, including divorce, has changed rapidly and dramatically as a result of industrialization. Embedded in our own experience, we often forget that lesson. And if you want to turn from pondering to investigating, of course, you will find a number of articles on the history of divorce. A reader who fails to understand the widespread social and political concern with the economic consequences of divorce, for example, should find it enlightening not only to read about this topic, which is addressed in multiple entries, but also to gain historical and cultural perspective on marriage as an economic rather than romantic union—and on divorce as unaffordable or creating dire poverty (and thereby perhaps compelling women to remain in even terribly abusive relationships). Times have indeed changed, and we can better understand the present if we appreciate our not-so-distant past.

      One of the key goals of this encyclopedia is to offer both a reminder and many details about these kinds of “big picture” issues. Another key goal is to address many nuances of adults' and children's experience of divorce. I urge you to run your finger down the list of entries. If you do, I expect that you will find yourself flipping back and forth through the volumes many times before you reach the bottom of the list. What is “bird-nesting?” What is the encyclopedia's “take” on parental alienation? (I have urged contributors to be as neutral and objective as possible when tackling controversial issues.) What is, or has become of, covenant marriage? How is divorce experienced by Native Americans? Is life expectancy really linked to divorce? You will even have a little fun as you explore this serious topic. We have included entries for celebrity divorces, comedy about divorce, and music about divorce. Yes, these topics have a serious side, as divorce in the media both reflects and shapes people's expectations and behavior. But I just cannot get too worked up about the shortest marriage on record. Who was the couple and how long did the marriage last? Find out for yourself. Explore!

      Robert E.Emery, Editor

      Chronology

      1427: A tax survey among Christians in Florence, Italy, determines that Jewish women were usually married between ages 14 and 18, to men between the ages of 24 and 28.

      1509: Henry VIII, king of England, is granted a Papal Dispensation by Pope Julius II to allow him to marry Catherine of Aragon (the marriage was considered incestuous under ecclesiastical law as Catherine was the widow of Henry's brother).

      1525: Henry VIII seeks an annulment of his marriage to Catherine of Aragon; the annulment was granted in 1533 by Archbishop Thomas Cramner (after Henry had already married Anne Boleyn in 1532).

      1534: The English Parliament passes the Act of Supremacy and severs the country's relationship with the ruling hierarchy of the Roman Catholic Church; the act declares the king to be “the only Supreme Head in Earth of the Church of England.”

      1537: In Strasbourg (in Alsace, now France) a law specifies that a marriage may be valid and legal without a church ceremony.

      1553: The Republic of Venice establishes a tribunal to deal with dowry disputes.

      1563: The Roman Catholic Church, at the Council of Trent, rules that clandestine marriages will not be valid, and requires that marriages be performed before a priest and witnesses.

      1600s: In the Massachusetts Bay colony, there are 54 petitions for divorce, with 44 of those being successful.

      1639: The first divorce is granted in the American colonies, in the Massachusetts Bay colony to James Luxford's wife, who petitioned a magistrate for divorce on the grounds that the marriage was bigamous (Luxford was already married to someone else at the time he married her).

      1641: In the American colonies, a Massachusetts law grants an “innocent” divorced wife the right to retain her dower rights.

      1642: The English poet John Milton marries Marie Powell, who shortly thereafter leaves him; this experience prompts Milton to write four tracts on divorce, which was not legally permitted in England at that time.

      1643: The second divorce is granted in the American colonies, also to a woman, Anne Clarke, who was granted a divorce by the Court of Assistants on the grounds of desertion.

      1644: John Milton publishes Judgement of Martin Bucer, which contains Milton's translations of Bucer's argument to allow divorce.

      1650: Rhode Island passes a statute that allows divorce only for the cause of adultery.

      1655: In New Netherland (later New York), John Hickes is granted a divorce on the grounds of desertion and adultery.

      1660: In the American colonies, the Court of Assistants is explicitly granted the privilege to hear divorce cases; grounds accepted for divorce include cruelty, bigamy, desertion, female adultery, and impotence.

      1666: In Massachusetts, Mary Drury is brought to court on charges of being a “runaway wife” and is fined and ordered to return to her husband; she is brought up on similar charges in 1676.

      1681: Pennsylvania law allows divorce on the grounds of adultery; in 1700 bigamy, sodomy and bestiality are added to permissible grounds for divorce.

      1701: The case of Ralph Box in England establishes the custom that Parliament would issue a divorce a vinculo (full divorce with right to remarry) after the ecclesiastical court had issued a divorce a mensa et throe (partial divorce).

      1773: In Massachusetts, male as well as female adultery becomes accepted as grounds for divorce.

      1785: Pennsylvania passes a law allowing for divorce on the grounds of bigamy, adultery, and desertion (for more than four years), and allows women to apply for separation on the basis of cruelty and misconduct.

      1787: New York State creates a general divorce law allowing divorce on the grounds of adultery; previously those who wished to divorce had to petition the governor.

      1790: Maryland becomes the first state in the southern United States to grant a divorce.

      1792: In France, divorce is permitted on several grounds, including mutual consent, incompatibility of temperament, desertion, criminality, and censure.

      1797: New York State tightens its divorce laws, allowing divorce only on grounds of adultery, and prohibits the party who committed adultery from remarrying.

      1801: Jane Addison sues for divorce from her husband on grounds of adultery; she eventually becomes the first woman in England granted a divorce a vinculo (a full divorce, including the right to remarry).

      1803: In France, the Napoleonic Code (civil code) adds many restrictions, compared to the 1792 divorce law, which impedes the right of a couple to seek a divorce; grounds for divorce include adultery and ill-treatment, while incompatibility is no longer considered sufficient, and divorce by mutual consent is subject to a number of restrictions including consent of family members.

      1804: The state of Ohio allows divorce on the grounds of bigamy, adultery, extreme cruelty, or desertion.

      1815: Pennsylvania amends its divorce law to allow women to file for divorce.

      1816: Napoleon Bonaparte revokes the right to divorce in France, and Catholicism is made the state religion.

      1817: The English Court of Chancery refuses to return the poet Percy Bysshe Shelley's children to his custody, due to his advocacy of unorthodox religious beliefs and publication of antigovernment tracts.

      1824: Indiana passes a general divorce law which, rather than specifying specific permissible grounds for divorce, states that the court will consider any cause which it finds reasonable and just; this, plus an absence of any residency requirement, make Indiana a popular destination for divorce seekers from other states.

      1830: New York State begins to allow annulments based on reasons such as bigamy, insanity, and physical incapacity.

      1838: Pennsylvania ends the practice of legislative divorce and grants the jurisdiction to grant divorces solely to the judicial system.

      1848: A women's rights convention is held in Seneca Falls, New York; topics include the rights of married women (for example, to retain and manage property) and the right for women to obtain a divorce on grounds such as cruelty or drunkenness.

      1849: Connecticut begins to allow divorce through the judicial system, rather than requiring those seeking divorce to petition the legislative system.

      1857: In England, the Court for Divorce and Matrimonial Causes is established to provide civil divorces in England and Wales; prior to this time a citizen needed a private Act of Parliament in order to obtain a divorce.

      1860: There are 7,380 divorces granted in the United States.

      1862: The Morrill Anti-Bigamy Act prohibits plural marriage in the United States and limits the dollar amount of property any church could own in a U.S. territory.

      1870: In England, the Married Women's Property Act gives married women some control over property acquired during their marriage.

      1873: In England, the Infant Custody Act of 1873 rules that adultery is not an absolute bar to child custody for women.

      1874: The New York Society for the Prevention of Cruelty to Children is founded as the world's first child protective agency; the name is modeled on that of the American Society for the Prevention of Cruelty to Animals, founded in 1886.

      1879: In England, women's rights advocate Annie Besant loses custody of her children on the grounds that she published a book about birth control that was considered by many to be obscene.

      1879: The American Bar Association appoints a commission to study and compare marriage and divorce laws in different states.

      1879: The U.S. Supreme Court, in George Reynolds v. United States, rules that freedom of religion does not extend to bigamy; Reynolds, a member of the Church of Jesus Christ of Latter-day Saints, claimed that it was his religious duty as a Mormon to have multiple wives.

      1880: Some 19,663 divorces are granted in the United States.

      1881: In the United States, Theodore Woolsey founds the New England Divorce Reform League.

      1882: In the United States, the Edmunds Act makes polygamy a felony, and prohibits polygamists from acts such as voting, holding public office, or serving on a jury.

      1882:A Modern Instance, a novel by the American author William Dean Howells, features an early fictional portrayal of migratory divorce: The central character, Marcia Hubbard, must travel from Boston to Indiana to defend herself against a fraudulent divorce suit filed by her husband.

      1883: In the United Kingdom, the Liverpool Society for the Prevention of Cruelty to Children is founded by Thomas Agnew, modeled after the New York Society for the Prevention of Cruelty to Children.

      1884: France reinstitutes the right to divorce, which had been revoked in 1816.

      1886: In England, the Infant Custody Act of 1886 grants widows the right of custody for their children.

      1886: In England, the Married Women (Maintenance in Case of Desertion) Act allows abandoned women to sue for maintenance before they and their children go to the workhouse.

      1888: The Lambeth Conference, a worldwide gathering of Anglican bishops, expressly states that divorce is not allowed within the church, except in the case of the innocent party in a divorce for fornication or adultery.

      1890: Wilford Woodruff, president of the Church of Jesus Christ of Latter-day Saints (Mormons), issues a statement (“The Manifesto”) prohibiting plural marriage within the church.

      1893: The first sociological journal, the Revue Internationale de Sociologie, begins publication.

      1900: Some 55,751 divorces are granted in the United States, a rate of 4.0 per 1,000 marriages.

      1903: In the United States, the Episcopal bishop William C. Doane organizes the Inter-Church Conference on Marriage and Divorce, in response to the growing number of divorces granted in the country.

      1905: The American Sociological Society, later renamed the American Sociological Association, is founded in Baltimore, Maryland.

      1907: William Schnitzer, a New York lawyer, establishes an office in Reno, Nevada, and begins publicizing Nevada as a place where divorce is quickly and easily available.

      1909: Jane Burr publishes Letters of a Dakota Divorcee, which purports to tell her experiences seeking a migratory divorce.

      1915: Felix Adler publishes Marriage and Divorce, which blames the increase in divorce rates on the expectation that love and personal choice should be primary in choosing a marriage partner.

      1917: The Mexican Constitution permits divorce, beginning a cross-border trade in which many Americans travel to Mexico to obtain a divorce.

      1918: Based on the Decree of Divorce, Russia replaces religious marriage with civil marriage, and allows divorce by mutual consent, or by the request of one of the partners in the marriage.

      1923: In England, the Matrimonial Causes Act of 1923 sets men and women on equal footing with regard to suing for divorce on the basis of adultery; previously, wives had to prove aggravated adultery.

      1924: In the United States, Senator Arthur Kapper (Kansas) introduces a constitutional amendment that would allow Congress to regulate divorce.

      1925: In England, the Guardianship of Infants Act establishes the principle that the ruling factor in child custody decisions should be the best interests of the child.

      1928: Margaret Mead publishes Coming of Age in Samoa, which contrasted social and sexual customs in Samoa with those of the United States.

      1928: Child psychologist John Watson predicts that there will be no such thing as marriage in the United States 50 years in the future.

      1930: The Canadian Parliament changes divorce laws so that they may be granted by judicial magistrates, rather than requiring legislative decrees.

      1932: In Spain, divorce by mutual consent becomes legal.

      1934: Ruth Benedict publishes Patterns of Culture.

      1936: The American Sociological Review begins publication.

      1937: In England, the Matrimonial Causes Act of 1937 allows divorce without proof of adultery; permissible grounds for divorce include cruelty, desertion for three or more years, and incurable insanity.

      1937: The Irish Constitution prohibits divorce, a prohibition that remains in effect until 1997.

      1938: Nazi Germany permits no-fault divorce.

      1947–1950: The U.S. television program Mary Kay and Johnny includes a story line written to accommodate the pregnancy of Mary Kay Stearms, who played the lead female character.

      1949: Margaret Mead publishes Male and Female, a study of gender roles on several Pacific islands.

      1949: South Carolina begins allowing divorces, for the first time since 1878, on grounds including adultery, physical cruelty, desertion, and habitual drunkenness.

      1949: The anthropologist George Peter Murdock offers a definition of marriage that includes several characteristics expected in the conventional Western marriage of his day, although not true of many other types of marriages; these characteristics include a man and a woman living together, economic cooperation, and sexual activity.

      1950: The International Sociological Association holds its first world congress in Zurich, Switzerland.

      1952: The radio soap opera The Guiding Light begins appearing on television and includes several story lines involving divorce.

      1952–1953: The popular American television program I Love Lucy incorporates a story line about the pregnancy of the lead character, played by Lucille Ball; it is not the first representation of pregnancy on television, but due to the popularity of the program, it is notable because it is viewed by so many people. The script for these episodes did not use the word “pregnant” but only euphemisms such as “expecting.”

      1957–1969: The program Divorce Court, featuring re-enactments of divorce cases, often including sensational elements, airs on American television.

      1960–1968: The hit American television situation comedy The Andy Griffith Show, starring Andy Griffith and Ronny Howard, focuses on a fictional small-town sheriff raising his son alone after the death of his wife.

      1963: Betty Friedan publishes The Feminine Mystique.

      1964–1969:Peyton Place, the first soap opera to appear on American television in the evening hours, includes several divorce story lines.

      1965: Psychologist Elliott Jacques coins the term midlife crisis in his article “Death and Middle Life,” published in the International Journal of Psychoanalysis.

      1966: In England, a commission appointed by the Archbishop of Canterbury produces the report Putting Asunder, which paves the way for divorce reform in England.

      1966: George Levinger publishes “Sources of Marital Dissatisfaction Among Applicants for Divorce” in the American Journal of Orthopsychiatry; in this article he presents evidence that husbands and wives perceive reasons for divorce, and marital problems in general, differently.

      1966: The National Organization for Women is founded in Washington, D.C.; founders include Betty Friedan, Pauli Murray, and Shirley Chisholm.

      1967: The U.S. Supreme Court, in Loving v. Virginia, strikes down all state laws prohibiting interracial marriage.

      1968: The Uniform Child Custody Juridisdiction Act is promulgated. It states that one state's custody order may not, in most circumstances, be modified by another state (to avoid children being taken across state lines in the hope of finding a judge more favorable to the parent's cause); all 50 states will adopt it by 1980.

      1969: California passes the Family Law Act of

      1969 (effective January 1, 1970), which allows divorce based on irreconcilable differences, if either party to the marriage asserted this as a reason (no finding of fault was required).

      1969: In England, the Divorce Reform Act specifies five facts which could be grounds for divorce: adultery, unreasonable behavior, separation of two years by consent, desertion for two years, or separation without consent for five years. The act also establishes that marital breakdown is the sole cause for divorce and that such breakdown was not subject to detailed court inquest.

      1970–1978: The series Maude, starring Bea Arthur, is the first American prime-time television series in which a lead character goes through a divorce.

      1971: In Baker v. Nelson, the Minnesota Supreme Court declines to approve gay marriage, ruling that there is a fundamental difference between marriage prohibitions based on the parties being of different races (prohibited by the 1967 Loving v. Virginia decision) and prohibitions based on the parties being of the same sex.

      1972: The U.S. Congress approves the Equal Rights Amendment to the Constitution, but it is eventually ratified by only 35 states, insufficient for it to become law.

      1972: Lesbian partners Sandy Schuster and Madeleine Issacson are granted custody of their children, but are ordered not to live together; two years later the restriction of their not living together is lifted.

      1972: In the young adult novel It's Not the End of the World, Judy Blume addresses children's concerns about divorce by portraying the conflicting emotions of a boy and girl whose parents are getting a divorce.

      1973: The television program An American Family, a reality show, airs on the Public Broadcasting System. It includes depictions of both a gay individual (son Lance Loud) and of marital tensions leading to a divorce (parents Pat and Bill Loud).

      1975: The Family Law Act in Australia establishes no-fault divorce.

      1975: In Sociobiology: The New Synthesis, biologist E. O. Wilson presents a theory that modern Western marriage customs were the direct descendants of basic divisions of labor present out of necessity at the dawn of human history.

      1976: The Divorce (Scotland) Act allows uncontested divorce without the presence of lawyers.

      1977: Nine U.S. states have adopted some form of no-fault divorce.

      1980: The Hague Convention on the Civil Aspects of International Child Abduction establishes methods to expedite return of an abducted child from one country to another; it enters into force in 1983, and is signed by over 80 countries by 2011.

      1980: According to the National Center for Health Statistics, 30 percent of U.S. women entering a first marriage in that year are teenagers, and 40 percent of those seeking a divorce in 1980 were married as teenagers.

      1980: The Parental Kidnapping Protection Act (PKPA) in the United States establishes national standards for the determination of child custody jurisdiction, and makes the Fugitive Felony Act applicable to child abduction cases.

      1983: Forty-eight of the 50 U.S. states have adopted a no-fault divorce law (all but New York and South Dakota).

      1983: The Uniform Marital Property Act (UMPA) in the United States proposes creation of the legal category of marital property, referring to property that must be managed in good faith during a marriage; as of 2011, only Wisconsin had adopted the UMPA.

      1984: The U.S. Supreme Court, in the Palmore v. Sidoti decision, reverses a lower court's decision to revoke custody of a child from her mother, who had married a man of a different race; the court rules that interracial marriage was not, by itself, evidence of unfitness as a parent.

      1984–1989: The American television program Kate and Allie centers on two divorced women who must navigate issues, such as single parenting, dating, and remarriage.

      1985: South Dakota adopts a no-fault divorce law, leaving New York as the only U.S. state to not allow no-fault divorce.

      1985: Lenore Weiztman, in “The Divorce Law Revolution and the Transformation of Legal Marriage,” argues that no-fault divorce laws operate on the assumption that the parties in a marriage had equal economic power, a situation rarely true in reality.

      1986: In the United States, the Bradley Amendment stiffens the rules regarding payment of child support; among its provisions are the elimination of judicial discretion, the prohibition of retroactively reducing obligations, and overriding individual state statutes of limitation of child support.

      1987: The U.S. Census Bureau reports that half of all families headed by a single mother lives below the poverty line, as compared to only 8 percent of two-parent families.

      1987–1990: The American situation comedy television program My Two Dads airs on NBC (National Broadcasting Company): the story features two single (heterosexual) men raising a teen-aged girl after her mother dies.

      1987–1995:Full House, an American situation comedy television program, features the efforts of a widowed father to bring up his daughters, with the assistance of his brother-in-law and a male friend.

      1988: David H. Demo and Alan C. Acock publish “The Impact of Divorce on Children” in the Journal of Marriage & Family, arguing that research supports the notion that children recover psychologically from divorce within a few years.

      1988: Steven Nock publishes “The Family and Hierarchy” in the Journal of Marriage & Family, arguing that children of single-parent families are less successful in their adult lives, as measured by factors such as income, employment, and occupational prestige, because their home life lacked the hierarchical organization typical of the nuclear family and also typical of the American workplace.

      1989: Judith Wallerstein and Sandra Blakeslee publish Second Chances: Men, Women and Children a Decade After Divorce, which argues that the children of divorced parents suffer long-term negative psychological consequences.

      1989: In Varieties of Sexual Experience, anthropologist Suzanne G. Frayser finds that, in the 62 cultures she studied, incest was the most commonly forbidden type of sexual liaison, followed by extramarital relationships.

      1989: R. Peterson publishes research demonstrating that on average women suffer an immediate decline in their standard of living (30 to 40 percent) after a divorce.

      1989: Denmark becomes the first country in the world to pass a law allowing registered partnership for same-sex couples.

      1993: Norway becomes the second country in the world to pass a law allowing registered partnership for same-sex couples.

      1995: Sweden passes a law allowing same-sex couples to enter into registered partnership.

      1996: Iceland passes a law allowing same-sex couples to enter into registered partnership.

      1996: A study by the U.S. General Accounting Office finds that federal regulations and statutes confer over 1,000 rights to married couples.

      1996: The U.S. Congress passes, and President Bill Clinton signs, the Defense of Marriage Act, which forbids the federal government from recognizing gay or lesbian marriages, and states that states do not have to recognize same-sex marriages performed in other states.

      1996: Kate Sweezy and Jill Tiefenthaler publish a study demonstrating that there is no relationship between the divorce rate in a state, and the length of the mandatory waiting period for divorce in that state.

      1997: The state of Louisiana offers two options for marriage (to opposite-sex couples): contract marriage, which allows access to no-fault divorce, and covenant marriage, which requires detailed premarriage counseling and includes restrictions on the reasons that may serve as grounds for divorce.

      1998: Eugene M. Lewit and Linda S. Baker publish “A Statistical Description of the Problem of Missing Children,” which demonstrates that, contrary to popular belief, a child is 90 times as likely to be kidnapped by a family member (including a noncustodial parent) than by a stranger.

      1998: The voters of Hawai'i ratify a constitutional amendment banning same-sex marriage.

      1998: The Netherlands passes a law allowing both same-sex and opposite-sex couples to enter into registered partnerships.

      1998: The Fragile Families and Child Wellbeing Study, a longitudinal study of a cohort of almost 5,000 children, begins collecting data. The purpose of the study, a joint effort of Princeton and Columbia Universities, is to examine the risks to children of growing up in poverty and/or in single-parent households.

      1998: The Ethnographic Atlas Codebook notes that, of human societies observed from 1960 to 1980, monogamy was relatively rare, while polygamy was more common.

      1999: The Vermont Supreme Court, in Baker v. State, rules that marriage laws favoring opposite-sex marriages over same-sex marriages are unconstitutional.

      1999: France passes the pact civil or Civil Solidarity Pact, which allows either same-sex or opposite-sex couples to enter into civil solidarity pacts that are similar to limited domestic partnership agreements (it does not provide inheritance rights, or allow for adoptions, for instance).

      2000: Vermont's civil union law, which entitles same-sex couples to the same benefits and protections as opposite-sex married couples, comes into force on July 1.

      2000: Scholars publish research indicating that children from divorced families suffer a number of social ills, including a higher probability of their own marriages ending in divorce.

      2000: The German Parliament authorizes “life partnerships” for same-sex couples that include almost all the rights and responsibilities of opposite-sex marriage.

      2001: The Commission on European Family Law is established to attempt to harmonize laws relating to marriage and divorce throughout Europe.

      2001: A Pennsylvania court awards joint child custody to lesbian partners Patricia Jones and Ellen Boring, upon their separation.

      2001: Anthropologist Cai Hua publishes A Society Without Fathers or Husbands, an account of the Na society of Yunnan, China, which has no institution resembling marriage.

      2001: The Netherlands becomes the first country in the world to authorize marriage for same-sex couples on an equal basis with opposite-sex couples.

      2001: Judith Stacey and Timothy J. Biblarz publish an article in the American Sociological Review that reviews 21 studies (published between 1981 and 1998) and concludes there is no evidence of any difference in developmental outcomes for children raised in homosexual versus heterosexual households.

      2003: The state of Texas grants a divorce to two gay men, who had earlier entered into a civil union in Vermont.

      2003: Belgium becomes the second country to recognize same-sex marriage, although without conferring the right to adopt as with same-sex married couples.

      2003: A trial court in New York State allows a gay man to sue a hospital for malpractice due to the death of his partner (they had entered into a civil union in Vermont), thus ruling that a civil union was equivalent to marriage for the purposes of the state's wrongful death statute.

      2003: In Goodridge v. Dep't of Public Health, the Massachusetts Supreme Judicial Court rules that banning same-sex couples from marrying is an arbitrary exclusion.

      2003: California governor Gray Davis signs a domestic partnership law that provides for same-sex civil unions that include most of the responsibilities and benefits of marriage.

      2004: On May 17, Massachusetts becomes the first state to allow same-sex couples to obtain marriage licenses on the same basis as opposite-sex couples.

      2004: In Japan, the Health Labor and Welfare Ministry releases statistics showing that divorce in long-term marriages has increased sharply; for 20-year marriages, the divorce rate is twice as high as 20 years previous, while for 30-year marriages the divorce rate in four times as high.

      2004: Gavin Newsom, mayor of San Francisco, announces on February 12 the city will issue marriage licenses to same-sex couples; the marriages thus performed are nullified by the California Supreme Court, which rules that Newsom did not have the authority to issue marriage licenses.

      2004: Thirteen U.S. states pass constitutional amendments that ban same-sex marriage.

      2004: The Commission on European Family Law publishes Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses and European Family Law in Action: Parental Responsibilities.

      2005: Spain becomes the third country to allow same-sex marriage, and grants same-sex couples the right to adopt children.

      2005: Ang Lee's film Brokeback Mountain features two couples with mixed orientation marriages, in which one partner is gay and the other is straight.

      2005: The European Commission presents a paper on the conflict-of-law rules within the European Union regarding divorce among couples with different nationalities, or who live in a country other than the one of which they are nationals.

      2005: The California Assembly passes a bill authoring same-sex marriage, but it is vetoed by Governor Arnold Schwarzenegger; a similar bill passes in 2007 but is again vetoed by Schwarzenegger.

      2005: Connecticut allows same-sex couples to enter into civil unions, carrying all the rights and responsibilities of marriage.

      2005: A Florida state judge awards child custody to a transgender man, Michael Kantaras.

      2006: In Scotland, the Family Law (Scotland) Act allows for divorce after a separation of one year (with consent) or two years (without consent).

      2006: The television drama Big Love begins airing on the HBO (Home Box Office) cable network; the main characters are members of a polygamous family in Utah. Although the program makes it clear that the polygamists are not members of the Church of Latter-day Saints (Mormon), the church still responds critically, claiming that the program blurs the distinction between the official church and the practices of the characters.

      2006: Six U.S. states pass constitutional amendments that ban same-sex marriage.

      2006: The European Union (EU) passes a directive that specifies the rights of spouses, after divorce or spousal death, of the surviving non-EU spouse to continue to reside in the EU country in which they lived with their spouse.

      2007: The Swiss Registered Partnership law, which allows same-sex couples the same rights as opposite-sex married couples, goes into effect.

      2007: The Washington State legislature passes a domestic partnership law giving same-sex couples rights to hospital visitation, to authorize organ donations and autopsies, and to inherit when the deceased did not leave a will.

      2008: Uruguay passes a national civil union law allowing same-sex or opposite-sex couples who have lived together for at least five years to enter into civil unions that provide many of the benefits and responsibilities of marriage.

      2008: The Connecticut Supreme Court declares that the state's civil unions law is discriminatory, and orders the state to allow same-sex couples to marry; these rights are expanded in 2008 and 2009.

      2008: Portugal becomes the eighth country in the world to recognize same-sex marriage, granting same-sex couples the same rights of commonlaw marriage that are extended to opposite-sex couples.

      2008: Proposition 8, which bans same-sex marriage, is passed by California voters, with 52 percent in favor.

      2009: The ensemble comedy series Modern Family begins airing on American television; it includes depictions of diverse family types, including a family headed by a single mother and one in which two gay men have adopted a Vietnamese child.

      2009: The Washington State legislature passes a domestic partnership law that confers on same-sex couples the same rights and responsibilities of married couples.

      2009: Vermont passes a bill allowing same-sex marriage, becoming the first state to institute marriage equality by legislative mandate.

      2009: The Iowa Supreme Court rules that the state's law banning same-sex marriage violates the standard of equal protection.

      2009: The Washington, D.C., city council passes a bill recognizing same-sex marriages performed in any jurisdiction where they are legal.

      2010: New York becomes the final U.S. state to allow no-fault divorce.

      2010: Michael Rosenfeld publishes a study in Demography that presents evidence (based on 2000 U.S. Census Data) that educational achievement of children raised by same-sex couples and opposite-sex couples are essentially identical.

      2011: The Illinois civil union law takes effect on June 1, making Illinois the 12th jurisdiction in the United States to allow same-sex couples to marry or to enter a domestic partnership or civil union.

      2011: A Pew Foundation survey finds that 42 percent of U.S. adults have at least one steprelative, and 18 percent have a living stepparent.

      2012: In Reber v. Reiss (Pennsylvania), a superior court rules that a divorced wife had the right to pre-embryos created from her eggs and her exhusband's sperm, arguing that because she could no longer conceive children in any other way, her right to procreate outweighed her ex-husband's desire to avoid procreation.

      2012: In Indiana, effective July 1, the presumptive date to end child support payments changes from 21 years to 19 years.

      2012: In Florida, legislation is introduced that would dramatically limit the amount of time courts could award alimony, and cap the amount due at 20 percent of the payer's income.

      SarahBoslaugh, Kennesaw State University
    • Glossary

      • Adjuster: A role sometimes adopted by children after their parents' divorce, in which the children do whatever is necessary to adapt to their new situation.
      • Alimony: A legal obligation for one member of a dissolved marriage to provide financial support to the other; also called spousal support or maintenance.
      • Alimony pendente: Temporary alimony, sometimes awarded by a court when a couple is separated but not officially divorced, in order to allow the partner receiving the alimony to maintain a reasonable standard of living while the divorce works its way through the legal system.
      • ADR: Alternative Dispute Resolution, a method of reaching a settlement in a dispute without holding a trial.
      • Alternate payee: A person (for instance, a child or spouse) who is entitled to receive a portion of another person's retirement benefits under terms of a QDRO (Qualified Domestic Relations Order).
      • An American Family: An early reality television program, aired on the U.S. Public Broadcasting System in 1973, which focused on the daily life of the Loud family, including their openly gay son Lance and the eventual breakup of the marriage of Pat and Bill Loud.
      • Annulment: A method to bring a legal end to a marriage that is declared invalid (for instance, if one of the parties was already married to someone else, or if fraud or force was involved in the marriage); in a legal sense, the two parties involved in the marriage are treated as if the marriage never took place, but any children resulting from the marriage are considered legitimate. Annulment is also recognized by some religions as a means to declare that a marriage never took place.
      • Arrears: Money, such as child support payments, which is owed to someone and is overdue.
      • Baehr v. Lewin: A 1993 decision of the Hawai'i Supreme Court which ruled that refusing marriage licenses to same-sex couples would violate Hawai'i's Equal Rights Amendment; in 1998 Hawai'i passed a constitutional amendment restricting marriage to opposite-sex couples, and Baehr v. Lewin was dismissed by the Hawai'i Supreme Court in 1999.
      • Baker v. Nelson: A 1971 U.S. Supreme Court decision that ruled that states had the right to ban same-sex marriages, and that the issue of marriage by people of the same sex was fundamentally different from the question of marriage among people of different races (the latter was the focus of Loving v. Virginia, a 1967 Supreme Court decision that overturned all state laws banning interracial marriage).
      • Baker v. State: A 1999 Vermont Supreme Court decision declaring that it was unconstitutional to deny marriage licenses to same-sex couples.
      • Binding arbitration: A type of arbitration in which the parties involved agree in advance that they will accept the ruling of the arbitrator.
      • Binuclear family: A term equivalent to “blended family,” referring to a family in which at least one of the adults has one or more children from a previous relationship.
      • Blended family: A term referring to a family in which, in contrast to the traditional nuclear family, at least one of the adults has one or more children from a previous relationship.
      • Bradley Amendment: A U.S. federal law that stiffens the requirements for payment of child support; provisions include disallowing the retroactive reduction of support obligations, prohibiting judicial discretion to reduce payments, and disallowing the inability to document changed circumstances of the person ordered to provide support as a reason to reduce the obligation.
      • Cohabitation: Living together in an emotionally and/or sexually intimate relationship, but without being married.
      • COLA: Cost of Living Adjustment, a method which adjusts compensation according to the estimated costs of living in a particular time and/or place; often a published index, such as the Consumer Price Index (CPI), is used to make these adjustments.
      • Common-law marriage: A relationship recognized in some U.S. states and other countries as equivalent to marriage. If a man and a woman have lived together for an extended period as man and wife, although they did not have a wedding ceremony or obtain a marriage license, they may have a common-law marriage.
      • Common-law states: U.S. states (41 plus the District of Columbia as of 2012) in which property earned or acquired during a marriage is assumed to be the property of the spouse who earned it or whose name is on the title.
      • Community property: Property acquired by either partner during a marriage, as a result of their work and effort; not all U.S. states recognize community property.
      • Community property states: U.S. states (9 as of 2012: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington) in which each spouse is judged to own half of all property earned or acquired during a marriage.
      • Covenant marriage: A type of marriage available to opposite-sex couples in Louisiana since 1997; in contrast to contract marriage, which allows no-fault divorce, covenant marriage requires extensive premarital counseling. allows divorce only for a limited number of reasons (including adultery, malicious desertion, and physical or sexual abuse), and requires a two-year waiting period and mandated counseling before a divorce may be granted.
      • Crude divorce rate: The rate of divorce in a given area and time period, calculated by dividing the number of divorces in the period by some measure of population in the period (often the population at the middle of the period in question); often expressed as the number of divorces per 1,000 population.
      • Crude marriage rate: The rate of marriage in a given area and time period, calculated by dividing the number of marriages in the period by some measure of population in the period (often the population at the middle of the period in question); often expressed as the number of marriages per 1,000 population.
      • Custodial parent: After a divorce or separation, the parent with whom a child lives most of the time.
      • Custody: The right and responsibility to care for a child, awarded by a court after a divorce.
      • Customary marriage: Marriage conducted according to the customs of a tribe or people, rather than through legal or church authorities.
      • “Deadbeat” dad: A slang term referring to a father who is ordered to pay child support after a divorce but fails to do so.
      • Defined benefit plan: A type of pension plan in which a specific amount is provided to an individual, possibly with mandated adjustment for increases in the cost of living.
      • Divided custody: A method of child custody in which physical custody of children is divided between two parents; in divided custody, the parents do not have shared physical custody of the children, but rather one parent has primary physical custody of one or more children, and the other parent has primary physical custody of the other children.
      • Divorcea mensa et thoro: A divorce “from bed and board,” a legal term for a divorce that does not allow the right to remarry; historically, this type of divorce was sometimes allowed by ecclesiastical courts on grounds such as cruelty or adultery, when the full divorce with right to remarry was not available even under those conditions.
      • Divorcea vinculo matrimony: A divorce “from the bonds of matrimony,” a legal term referring to a full divorce with the right to remarry.
      • Divorce Court: An American television program that aired 1957–69 and featured re-enactment of often spectacular divorce cases.
      • Doctrine and Discipline of Divorce: A 1643 publication by the English poet John Milton, which advocates allowing divorce without the involvement of either the government or the church.
      • Early neutral evaluation: A process in dispute resolution in which the parties are provided, at an early stage, with an evaluation of the merits of their position, by a neutral evaluation.
      • Echelon authority structure: A hierarchical arrangement of power, in which one individual may be described as categorically inferior to another, who is their superior; this structure is common in employment contexts as well as in the traditional nuclear family.
      • Emancipation: A legal state in which a child is considered to be an adult, generally dependent on age and possibly other factors such as the child's request; in some cases child support is awarded only until the child becomes emancipated.
      • Empty shell marriage: A marriage in which couples continue to share a home but have ceased to be intimately and emotionally connected.
      • Ex parte: A legal situation in which a judge hears from only one side in a dispute; ex parte communications are generally limited in the United States to specific circumstances, such as an emergency request for a protective order due to alleged domestic violence.
      • Family law: The area of law concerned with divorce, child custody, alimony and child support, and visitation rights.
      • Family system: The members of a family plus their bonds and communications patterns, a crucial concept in family systems theory, developed by Murray Bowen.
      • Fillius nullius: A legal term meaning “the child of no one” that granted mothers of illegitimate children the sole custody of their children.
      • Foster care: Placement of a child with nonrelatives who are licensed by the state to provide care.
      • Fragile Families and Child Wellbeing Study: A longitudinal study conducted jointly by Princeton and Columbia universities that examined almost 5,000 children born in the United States, to study the effects on children of being born into a low-income and/or single-parent home.
      • GAL:Guardian ad litem, an adult (such as a mental health worker or lawyer) appointed to represent a child in a court hearing.
      • Get: In Jewish tradition, a bill of divorce.
      • Grandparent visitation: The right of grandparents to see their grandchildren; rules regarding grandparent visitation vary from state to state, so in some states, for instance, it is allowed only if a fit residential parent agrees that grandparent visitation would be in the best interests of the grandchildren.
      • Hold harmless: A legal situation in which one partner in a marriage assumes a debt or obligation, while protecting the other spouse from any expense or loss which may result from it.
      • Hybrid custody: A type of child custody in which the parents have shared physical custody of one or more of their children, and one or both of the parents has primary physical custody of their other children.
      • Indian Child Welfare Act: A U.S. law regulating child placement for children who are members of an Indian (Native American) tribe or are eligible for membership.
      • Injunction: A court order that forbids a party from performing certain acts, which are judged to potentially cause harm to another party; violation of an injunction may result in criminal charges or civil penalties.
      • Intergenerational transmission of divorce: A term referring to the observed fact that the children of divorced parents are more likely to have their own marriages end in divorce.
      • Joint custody: The circumstance in which both parents are given the shared right and responsibility to care for their children; the specifics of a joint custody arrangement may vary from case to case, but generally include shared physical custody, financial responsibility, and responsibility to care for and rear the children.
      • Kin keeper: A sociological term for a role, often assumed by women, of taking care of children and other family members who need assistance, communicating with other family members, and preserving the family's identity and traditions.
      • Kinship care: Placement of a child with relatives, for example, after a divorce.
      • Lawrence v. Texas: A 2003 U.S. Supreme Court decision that established a couple's right to intimacy; this decision has been cited by advocates in support of same-sex marriage.
      • Legal separation: A written agreement or court judgment in which two parties to a marriage remain married but agree to live separately and to begin resolving their financial claims; it is often a preliminary step toward a divorce.
      • The Lucy Show: An American situation comedy starring Lucille Ball and Vivian Vance, which aired 1962–68, and was the first American television program to include a divorced lead character (Vivian Bagley, played by Vivian Vance).
      • M. v. H.: A 1999 Canadian Supreme Court decision ruling that the Ontario Family Law Act was in violation of the Canadian Charter of Rights and Freedoms, because it excluded same-sex partners from the definition of spouse.
      • The Manifesto: An 1890 proclamation, issued by Wilford Woodruff, which banned polygamous marriage within the Church of Jesus Christ of Latter-day Saints (Mormons).
      • Marriage education: Educational programs for nondistressed married couples, to assist them in enhancing their relationship.
      • Mediation: An alternative method of dispute resolution in which two parties agree to allow a neutral third party to facilitate negotiation between them.
      • Merrill factors: A list of factors used in some courts to arrive at an equitable property division in the case of divorce; the factors include the length of the marriage, the age and health of the parties involved, their earning capacity and financial position, their conduct, and which party has physical custody of the children.
      • Midlife: A period in the life span that may be defined either by developmental events or by chronological age; in the latter case, the definition of midlife can be quite broad, and is related to the respondent's age, as younger adults are most likely to define midlife as approximately the years 35 to 55, while older adults are more likely to consider it approximately the years 40 to 60.
      • Midlife crisis: A popular term referring to the negative consequences of stress and personality change that are believed to occur in the age range of 30 to 50 years; empirical reports show that 10 to 26 percent of Americans suffer from the type of internal conflict popularly assumed to occur during these years, although many more report important changes in their life during this time.
      • MIDUS: Midlife in the United States, a two-part research project by the MacArthur Midlife Research Network. In MIDUS 1, the MacArthur network conducted a national survey of Americans aged 25 to 74, while MIDUS 2, supported by the National Institute on Aging, consisted of five longitudinal follow-up projects with the original MIDUS respondents.
      • Migratory divorce: A divorce obtained by temporarily residing in another location (a state or country) and obtaining the divorce under the laws of that location.
      • Mixed-orientation marriage: A marriage in which one party is gay and the other is straight.
      • Modern Family: An American television situation comedy which began airing in 2009 and is notable for its depiction of nontraditional, non-nuclear families, including a family headed by a single mother and another formed by two gay men and their adopted son.
      • Moral crusade: A social movement formed around a moral or symbolic issue (such as temperance, divorce).
      • Moral panic: A deliberately aroused and exaggerated social concern, usually with an explicit or implied moral nature, over a societal trend or issue.
      • NCCUSL: The National Conference of Commissioners on Uniform State Laws, a nonprofit organization that drafts model acts intended to promote conformity in certain areas of law across states.
      • Nikab: The Arabic word used for marriage in the Islamic tradition; it is considered a contract of exchange, with the essential components being the offer made by the woman or her guardian (ijab), the man's acceptance (qabul) of this offer, and the dower (sadaq or mahr) provided by the husband to the wife.
      • No-fault divorce: A divorce granted without either party having to prove that the other party is at fault, that is, that the other party is guilty of some marital misconduct such as adultery or abandonment.
      • Nonbinding arbitration: A type of arbitration in which the parties to a dispute do not have to accept the decision of the arbitrator, although they agree to the arbitration process, including hearing the advice of the arbitrator.
      • Nonresident parent: After a divorce or separation, the parent with whom the child does not live (although the child and parent may visit each other).
      • Nonresidential stepfamily: A stepfamily household in which the children only occasionally reside in the household, for instance, on weekends or over holidays.
      • Palmore v. Sidoti: A 1984 U.S. Supreme Court decision that reversed a lower court order removing a child from the custody of its mother, on the grounds that the mother (a white woman) had married an African American man, and that the child would face stigmatization due to this interracial marriage. The Supreme Court ruled that the Fourteenth Amendment to the Constitution took priority over concerns about social stigma, and that entering into an interracial marriage was not itself evidence of being an unfit parent.
      • Parasocialism: An individual's involvement with people he or she experiences through the media, for example, movie stars, musicians, or even fictional characters; the involvement may be cognitive, affective, and behavioral, and may parallel behavior typical in actual relationships (such as judging a star's behavior or mourning his or her divorce).
      • Parens patriae: A legal term meaning “parent of the nation” and referring to the right of the state to act as the parent of a child in need of protection, for instance, from a negligent or abusive parent; parens patriae has also been applied to persons unable to care for their own interests, such as the insane.
      • Parental alienation: Attempts by a residential parent to alienate a child from the nonresidential parent.
      • Pendente litemotion: An application to a court for temporary relief, for instance, for the award of child support or alimony while a divorce is in process.
      • Placater: A role often adopted by children of divorced parents, in which the children try to behave like adults and make their parents' lives as easy as possible.
      • Presumption of legitimacy: The legal assumption that a child born within a marriage is the child of the husband.
      • Pro se: A legal term for persons who represent themselves in court, rather than having a lawyer represent them.
      • QDRO: Qualified Domestic Relations Order, an order that recognizes the right of an alternate payee to receive all or part of the benefits due another payee from a retirement plan.
      • QJSA: Qualified Joint and Survivor Annuity, an annuity that pays a certain amount to the participant (holder of the annuity) and a possibly different amount to the participant's spouse after the participant's death.
      • Reformatio Legum Ecclesiasticarum: A report produced by an English parliamentary commission in the 16th century, which stated that divorces granted for adultery, malicious desertion, and moral enmities by the ecclesiastical court should be avinculo, with the right to remarry.
      • Residential stepfamily: A stepfamily household in which the children reside in the household most or all of the time.
      • Restricted visitation: Visitation that is restricted for the child's best interest, for instance, ordering a parent not to consume alcohol during visits, or requiring that the nonresidential parent engage in assessment or treatment before being allowed visitation.
      • Separate property: Property that belongs to only one spouse (often because it was acquired before marriage), as opposed to marital property, which is property acquired by the couple after marriage.
      • Service Members Civil Relief Act: A U.S. federal law that postpones or suspends certain civil obligations while a person is serving in the military; one result of this act is that in most cases an active duty soldier involved in a divorce custody case cannot be defaulted due to his or her inability to be available to defend their case.
      • Simple stepfamily: A stepfamily in which only one of the partners has a child or children from a previous relationship.
      • Social networks: The relationships formed, maintained, and discarded by individuals over time. A married couple are both influenced by and exert influence over social networks, and major life events (such as divorce) may cause major changes in these networks.
      • Social stigma: A sociological term for a method in which a society characterizes and values its members, attaching a stigma (literally an identifying mark, but usually used in a more metaphorical sense) to those perceived to have violated the society's norms (such as through infidelity or divorce); those who are thus stigmatized may be shunned by others in the society and often experience a loss of self-esteem.
      • Stalking: A crime in which a person places another in fear of injury or death by deliberately and repeatedly contacting him or her without their permission.
      • Step-: A prefix indicating individuals who have become members of a family through divorce and marriage; for instance, if a woman with children from a previous marriage remarries, her children from the previous marriage are stepchildren to her new husband, and he is the stepfather of those children. The term step is believed to derive from stoep, an old English word meaning bereaved or deprived, because prior to the 20th century many stepfamilies were formed due to the death of the previous partner of one or both of the parents.
      • Subpoena: A legal document, usually issued by a court, which requires a person to appear in court, under pain of legal reprisal.
      • Subpoenaduces tecum: A subpoena ordering an individual to produce physical evidence (often documents) as requested by the court.
      • Tametsi: A decree of the Roman Catholic Church promulgated at the Council of Trent, which declared that only marriages conducted by a priest and before witnesses would be recognized as valid.
      • Therapeutic reading: Also known as bibliotherapy, reading (or, in the case of children, having someone read to you) books or stories in which the characters deal with issues similar to your own.
      • Triangulation: A concept in Murray Bowen's family systems theory, in which two people whose relationship is suffering from anxiety bring a third person into the relationship.
      • TRO: Temporary Restraining Order, a court order issued for a short period of time that prohibits a party from doing something, such as withdrawing money from a bank account, or harassing another person.
      • Troublemaker: A role sometimes adopted by children after their parents' divorce, in which the child seeks attention through acting out and expressing anger.
      • UMPA: The Uniform Marital Property Act, a piece of model legislation written by the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association, which establishes the category of “marital property,” which must be managed in good faith (that is, not wasted or given away without consent).
      • Virtual visitation: Permission allowed to a parent to “visit” their children through means such as Skype or a Web camera.
      • Visitation: A legal term describing the time awarded to a nonresidential parent, after a divorce, to see his or her children.
      • Vital event: An event such as birth, death, or marriage, indicating important transitions in the life course. The United Nations Statistics Division defines vital events as “the occurrence of a live birth, fetal death, marriage, divorce, adoption, legitimation, recognition of parenthood, annulment of marriage or legal separation.”
      SarahBoslaugh, Kennesaw State University

      Resource Guide

      Books
      Ahrons, Constance R.Divorced Families: A Multidisciplinary Developmental View. New York: W. W. Norton, 1987.
      Arendell, Terry. Fathers and Divorce. Thousand Oaks, CA: Sage, 1995.
      Badgett, M. V. Lee. When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage. New York: New York University Press, 2009.
      Bailey, Joanne. Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800. New York: Cambridge University Press, 2003.
      Basch, Norma. Framing American Divorce: From the Revolutionary Generation to the Victorians. Berkeley: University of California Press, 1999.
      Breen, Michael J.The Influence of Mass Media on Divorce Referenda in Ireland. Lewiston, NY: Edwin Mellen Press, 2010.
      Breitowitz, Irving A.Between Civil and Religious Law: The Plight of the Agunah in American Society. Westport, CT: Greenwood Press, 1993.
      Broyde, Michael J.Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America. Hoboken, NJ: KTAV Publishing House, 2001.
      Bryan, Penelope Eileen. Constructive Divorce: Procedural Justice and Sociological Reform. Washington, DC: American Psychological Association, 2005.
      Buchana, Christy M., et al. Adolescents After Divorce. Cambridge, MA: Harvard University Press, 1996.
      Buckley, Thomas E.The Great Catastrophe of My Life: Divorce in the Old Dominion. Chapel Hill: University of North Carolina Press, 2002.
      Cassetty, Judith. Child Support and Public Policy: Securing Support from Absent Fathers. Lexington, MA: Lexington Books, 1978.
      Chernin, Andrew J.Marriage, Divorce, Remarriage.
      Rev. ed.
      Cambridge, MA: Harvard University Press, 1992.
      Chused, Richard H.Private Acts in Public Places: A Social History of Divorce in the Formative Era of American Family Law. Philadelphia: University of Pennsylvania Press, 1994.
      Clarke-Stewart, Alison and Cornelia Brentano. Divorce: Causes and Consequences. New Haven, CT: Yale University Press, 2006.
      Crowley, Jocelyn Elise. Defiant Dads: Fathers' Rights Activists in America. Ithaca, NY: Cornell University Press, 2008.
      Das, Chaitali. British-Indian Adult Children of Divorce: Context, Impact and Coping. Burlington, VT: Ashgate Publications, 2011.
      Davis, Rebecca L.More Perfect Unions: The American Search for Marital Bliss. Cambridge, MA: Harvard University Press, 2010.
      DiFonzo, J. Herbie. Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth-Century America. Charlottesville: University Press of Virginia, 1997.
      Douglas, Emily M.Mending Broken Families: Social Policies for Divorced Families: How Effective Are They?Lanham, MD: Rowman & Littlefield, 2006.
      El Alami, Dawoud Sudqi and Doreen Hinchcliffe. Islamic Marriage and Divorce Laws of the Arab World. Boston: Kluwer Law International, 1996.
      Ellis, Elizabeth M.Divorce Wars: Interventions With Families in Conflict. Washington, DC: American Psychological Association, 2000.
      Emery, R. E.Marriage, Divorce, and Children's Adjustment.
      2nd ed.
      Thousand Oaks, CA: Sage, 1999.
      Emery, R. E.The Truth About Children and Divorce: Dealing With the Emotions so You and Your Children can Thrive. New York: Plume, 2006.
      Emery, R. E.Renegotiating Family Relationships: Divorce, Child Custody, and Mediation.
      2nd ed.
      New York: Guilford, 2011.
      Engel, Barbara Alpern. Breaking the Ties That Bind: The Politics of Marital Strife in Late Imperial Russia. Ithaca, NY: Cornell University Press, 2011.
      Fisher, Helen E.Anatomy of Love: The Natural History of Monogamy, Adultery, and Divorce. New York: W. W. Norton, 1992.
      Freeze, ChaeRan Y.Jewish Marriage and Divorce in Imperial Russia. Hanover, NH: University Press of New England for Brandeis University Press, 2002.
      Fried, Leora. Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data. Cambridge, MA: National Bureau of Economic Research, 1998.
      Fuess, Harald. Divorce in Japan: Family, Gender, and the State, 1600–2000. Stanford, CA: Stanford University Press, 2004.
      Gottman, John Mordechai. What Predicts Divorce? The Relationship Between Marital Processes and Marital Outomes. Hillsdale, NJ: Lawrence Erlbaum Associates, 1994.
      Griffin, Victoria. The Mistress: Histories, Myths and Interpretations of the “Other Woman.”New York: Bloomsbury, 1999.
      Harvey, John H. and Mark AFine. Children of Divorce: Stories of Loss and Growth. Mahwah, NJ: Lawrence Erlbaum Associates, 2004.
      Heidecker, Karl Josef. The Divorce of Lothar II: Christian Marriage and Political Power in the Carolingian World. Ithaca, NY: Cornell University Press, 2010.
      Hetherington, E. Mavis. For Better or for Worse: Divorce Reconsidered. New York: W. W. Norton, 2003.
      Inkstone-Brewer, David. Divorce and Remarriage in the Bible: The Social and Literary Context. Grand Rapids, MI: W. B. Eerdmans, 2002.
      Jaffe, Peter G., Nancy K. D.Lemon, and Samantha E.Poisson. Child Custody and Domestic Violence: A Call for Safety and Accountability. Thousand Oaks, CA: Sage, 2003.
      Jenks, Richard J.Divorce, Annulments, and the Catholic Church: Healing or Hurtful?New York: Haworth Press, 2002.
      Johnston, Janet R. and Linda K.Girdner. Family Abductors: Descriptive Profiles and Preventive Interventions. Washington, DC: U.S. Dept. of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, 2001.
      Jones, Gavin W.Marriage and Divorce in Islamic South-East Asia. New York: Oxford University Press, 1994.
      Karbo, Karen. Generation Ex: Tales from the Second Wives Club. New York: Bloomsbury, 2001.
      Karney, Benjamin R.Families Under Stress: An Assessment of Data, Theory, and Research on Marriage and Divorce in the Military. Santa Monica: RAND Corporation, 2007.
      Kingdon, Robert M.Adultery and Divorce in Calvin's Geneva. Cambridge, MA: Harvard University Press, 1995.
      Kruger, Thalia. International Child Abduction: The Inadequacies of the Law. Oxford: Hart, 2011.
      Kurz, Demie. For Richer, For Poorer: Mothers Confront Divorce. New York: Routledge, 1995.
      Lawson, Erma Jean. Black Men and Divorce. Thousand Oaks, CA: Sage, 1999.
      Layish, Aharon. Divorce in the Libyan Family: A Study Based on the Sijills of the Shari'a Courts of Ajdabiyya and Kufra. New York: New York University Press, 1991.
      Leneman, Leah. Alienated Affections: The Scottish Experience of Divorce and Separation, 1684–1830. Edinburgh, UK: Edinburgh University Press, 1998.
      Maccoby, Eleanor E. and Robert H.Mnookin. Dividing the Child: Social and Legal Dilemmas of Custody. Cambridge, MA: Harvard University Press, 1992.
      Maushart, Susan. Wifework: What Marriage Really Means for Women. New York: Bloomsbury, 2002.
      Metz, Tamara. Untying the Knot: Marriage, the State, and the Case for Their Divorce. Princeton, NJ: Princeton University Press, 2010.
      Milton, John. The Divorce Tracts of John Milton. Sara J.Van den Berg and Howard W.Scott, eds. Pittsburgh, PA: Duquesne University Press, 2010.
      Mir-Hosseini, Ziba. Marriage on Trial: A Study of Islamic Family Law: Iran and Morocco Compared. New York: St. Martin's Press, 1993.
      Morgan, Leslie A.After Marriage Ends: Economic Consequences for Midlife Women. Newbury Park, CA: Sage, 1991.
      Parkinson, Patrick. Family Law and the Indissolubility of Parenthood. New York: Cambridge University Press, 2011. http://dx.doi.org/10.1017/CBO9780511921063
      Parkman, Allen M.Good Intentions Gone Awry: No-Fault Divorce and the American Family. Lanham, MD: Rowman & Littlefield, 2000.
      Paterson, Wendy Anne. Unbroken Homes: Single-Parent Mothers Tell Their Stories. New York: Haworth Press, 2001.
      Pedersen, Jean Elisabeth. Legislating the French Family: Feminism, Theater, and Republican Politics, 1870–1920. New Brunswick, NJ: Rutgers University Press, 2003.
      Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society. New York: Cambridge University Press, 1988.
      Pino, Christopher J.Divorce, Remarriage, and Blended Families: Divorce Counseling and Research Perspectives. Palo Alto, CA: R & E Research Associates, 1982.
      Pryor, Jan. Children in Changing Families: A Life After Parental Separation. Oxford: Blackwell Publishers, 2001.
      Rapoport, Yossef. Marriage, Money and Divorce in Medieval Islamic Society. New York: Cambridge University Press, 2005.
      Rawson, Beryl, ed. Marriage, Divorce, and Children in Ancient Rome. New York: Oxford University Press, 1996.
      Riley, Glenda. Divorce—An American Tradition. New York: Oxford University Press, 1991.
      Root, Andrew. The Children of Divorce: The Loss of Family as the Loss of Being. Grand Rapids, MI: Baker Academic, 2010.
      Sarat, Austin and William L. F.Felstiner. Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process. New York: Oxford University Press, 1995.
      Schepard, Andrew. Children, Courts, and Custody: Interdisciplinary Models for Divorcing Families. New York: Cambridge University Press, 2004.
      Schwartz, Lita Linzer and Florence W.Kaslow. Painful Partings: Divorce and its Aftermath. New York: Wiley, 1997.
      Selderhuis, H. J.Marriage and Divorce in the Thought of Martin Bucer. Trans. JohnVriend and Lyle D.Bierma. Kirksville, MO: Thomas Jefferson University Press at Truman State University, 1999.
      Shaner, Leslie Ann. Divorce in the Golden Years. Chicago: American Bar Association, 2010.
      Simons, Ronald L.Understanding Differences Between Divorced and Intact Families: Stress, Interaction, and Child Outcome. Thousand Oaks, CA: Sage, 1996.
      Smith, David P., EnriqueCarrasco, and PeterMcDonald. Marriage Dissolution and Remarriage. Voorburg, Netherlands: International Statistical Institute, 1984.
      Stone, Lawrence. Broken Lives: Separation and Divorce in England, 1660–1857. New York: Oxford University Press, 1993.
      Tucker, Judith E.Women, Family, and Gender in Islamic Law. New York: Cambridge University Press, 2008. http://dx.doi.org/10.1017/CBO9780511841316
      Wallerstein, Judith S. and SandraBlakeslee. Second Chances: Men, Women, and Children a Decade After Divorce. New York: Ticknor & Fields, 1990.
      Wallerstein, Judith, JuliaLewis, and SandraBlakeslee. The Unexpected Legacy of Divorce: A 25-Year Landmark Study. New York: Hyperion, 2000.
      Warner, J. Christopher. Henry VIII's Divorce: Literature and the Politics of the Printing Press. Rochester, NY: Boydell Press, 1998.
      Weitzman, Lenore J. and MavisMaclean, eds. Economic Consequences of Divorce: The International Perspective. New York: Oxford University Press, 1992.
      West, Mark D.Lovesick Japan: Sex, Marriage, Romance, Law. Ithaca, NY: Cornell University Press, 2011.
      Journals
      American Journal of Economics and Sociology
      American Journal of Family Law
      American Journal of Sociology
      American Sociological Review
      American Sociologist
      Annual Review of Sociology
      Australian and New Zealand Journal of Family Therapy
      BMC Public Health
      British Journal of Sociology
      Canadian Journal of Sociology
      Canadian Review of Sociology and Anthropology
      Child and Family Social Work
      Chinese Sociological Review (formerly Chinese Sociology and Anthropology)
      Comparative Social Research
      Comparative Sociology
      Contemporary Sociology
      Critical Sociology
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      American Community Survey Data on Marriage and Divorce (U.S.)http://www.census.gov/hhes/socdemo/marriage/data/acs/index.html
      American Psychological Association: Marriage & Divorcehttp://www.apa.org/topics/divorce/index.aspx
      American Sociological Association http://www.aafd.org
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      Center for Cultural Sociology, Yale University http://ccs.research.yale.edu
      Child Welfare Information Gateway (U.S. Dept. of Health & Human Services, Administration for Children and Families)http://www.childwelfare.gov
      The Covenant Marriage Movementhttp://www.covenantmarriage.com
      Culture Web: American Sociological Association on the Sociology of Culturehttp://www.ibiblio.org/culture/?q=node
      Current Population Survey Data on Marriage and Divorce (U.S.)http://www.census.gov/hhes/socdemo/marriage/data/cps/index.html
      Decennial Census Data on Marriage and Divorcehttp://www.census.gov/hhes/socdemo/marriage/data/census/index.html
      Emery on Divorce: The Truth About Children and Divorce by Robert E. Emery, Ph.D. http://emeryondivorce.com
      European Judicial Network: Divorce—Community Lawhttp://ec.europa.eu/civiljustice/divorce/divorce_ec_en.htm
      European Sociological Association http://www.europeansociology.org
      The Factbook on Family (Po Bronson) http://www.pobronson.com/factbook
      International Sociological Association http://www.isa-sociology.org
      Marriage Equality USA http://www.marriageequality.org
      National Council of Juvenile and Family Court Judges http://www.ncjfcj.org
      National Fatherhood Initiative http://www.fatherhood.org
      National Survey of Family Growth (Centers for Disease Control and Prevention) http://www.cdc.gov/nchs/nsfg.htm
      National Vital Statistics System: Marriages and Divorces (U.S.) http://www.cdc.gov/nchs/mardiv.htm
      OECD Family Database (Organisation for Economic Co-operation and Development, Directorate for Employment, Labour, and Social Affairs) http://www.oecd.org/document/4/0,3746,en_2649_34819_37836996_1_1_1_1,00.html
      Organization for the Resolution of Agunot http://www.getora.com
      Pacific Sociology Association http://www.pacificsoc.org
      Rural Sociological Society http://ruralsociology.org
      Same-Sex Marriage: A Selective Bibliography of the Legal Literature http://law-library.rutgers.edu/SSM.html
      Survey of Income and Program Participation Program Data on Marriage and Divorce (U.S.) http://www.census.gov/hhes/socdemo/marriage/data/sipp/index.html
      World Marriage Data 2008 (United Nations Population Division) http://www.un.org/esa/population/publications/WMD2008/Main.html
      SarahBoslaughKennesaw State University

      Appendix A: Court Cases

      Abandonment: Withholding Sexual Relations: Diemer v. Diemer (1961)

      Editor's note: Refusal to have sex with one's spouse is ruled by a New York court to be abandonment of the marriage. In 1961, New York was still five years away from the divorce law reforms that had been pursued since the turn of the century and that would expand the grounds of fault divorces and allow no-fault divorces for the first time. William Diemer was denied a divorce on the grounds of cruelty, but the appellate court granted one on the grounds of abandonment—ruling that abandonment need not be limited to physical separation.

      8 N.Y.2d 206 (1960)

      William Diemer, Appellant,

      v.

      Gilberte Diemer, Respondent.

      Court of Appeals of the State of New York.

      Argued March 29, 1960.

      Decided July 8, 1960.

      Leonard M. Leiman for appellant.

      Anthony F. LoFrisco and William D. Sullivan for respondent.

      Judges DYE, FROESSEL, VAN VOORHIS and FOSTER concur with Judge FULD; Chief Judge DESMOND dissents in an opinion in which Judge BURKE concurs.

      FULD, J.

      The question on this appeal is whether a wife's repudiation of the validity of her marriage and her refusal to have sexual relations with her husband unless he submits to a remarriage in a church of her religious faith entitle the husband to a decree of separation.

      Mr. and Mrs. Diemer were married in 1947. He was a Protestant, 41 years of age, she a Roman Catholic, a year younger. Having anticipated problems in accommodating their religious differences, they discussed this issue and reached an agreement concerning it. Although other aspects of their agreement were in dispute at the trial, it seems clear that Mr. Diemer's doubts about the success of their marriage had been allayed by the assurance of his bride-to-be that her “main ambition” was to be with him “in all things, for all times” and by her agreement that his faith would be her faith and his church, her church. It was in fulfillment of their agreement that the Diemers were married in the Church of the Garden, a church of Protestant persuasion, and a year and a half later Mrs. Diemer was admitted as a member of her husband's church.

      In 1950, after three years of marriage, a daughter was born to the Diemers. Although it would not be accurate to say that marital discord was born with the infant, the unfortunate fact is that her baptism and subsequent religious training proved sources of contention, at first latent, but soon overt and bitter. The religious conflict which revolved about the child reached a climax and took a new form in 1954, shortly after Mrs. Diemer suffered an accident which induced in her a fear of death. She consulted a priest and, following her talks with him, issued an ultimatum to her husband. She told him that in the eyes of her Church she was not considered married to him and that, since this was so, she would not have any further sexual relations with him unless he submitted to a second ceremony in the Roman Catholic Church. In the six or seven months which followed, Mr. Diemer continued to live with his wife and made constant attempts to change her mind, but she persisted in her refusal to have sexual relations with him.

      In October, 1954, realizing that his wife's decision was final and unalterable, he left home and instituted this suit. Alleging, in substance, the facts as they are set out above, Mr. Diemer characterized his wife's conduct as “cruel and inhuman treatment,” said that this conduct caused him suffering and seriously impaired his physical and mental well-being and sought relief in the form of a separation and custody of their child. Mrs. Diemer counterclaimed for separation, support and custody, but neither in her answer nor at the trial did she deny the essentials of her husband's story. In fact, on both occasions she reaffirmed that she did not consider herself married and unequivocally declared that she would not have any sexual relations with her husband until they were remarried before a Roman Catholic priest.

      The trial court denied both husband and wife a separation and awarded custody of the child to the wife. On appeal by the husband—his wife sought no review — a divided Appellate Division affirmed the judgment. It was the view of both courts that the proof did not establish “cruel and inhuman treatment” on the part of the wife, apparently for two reasons: first, ththe wife had not “willfully and deliberately intended to inflict mental or physical suffering” upon the husband and, second, that he had not actually suffered any damage to his health. Although we are of the opinion that the criteria thus applied were too restrictive and that the essentials of cruelty were made out in this case (cf. Sherman v. Sherman, 7 N Y 2d 1032; Hofmann v. Hofmann, 232 N.Y. 215, 218), we prefer to place our decision of reversal and our award of a separation to the husband on the ground that the facts alleged and proved unquestionably establish the husband's right to a separation on the ground of abandonment (Civ. Prac. Act, § 1161, subd. 3).

      Our discussion necessarily centers on an analysis of Mirizio v. Mirizio (242 N.Y. 74). The parties, married in a civil ceremony, had agreed that “they would not live together or consummate the marriage until performance of a religious ceremony” in the Catholic Church (242 N. Y., at p. 76). Mrs. Mirizio refused to consummate their marriage because her husband declined to go through with the promised ceremony and, as a result, they never lived together. The wife thereupon sued for a separation based on abandonment, and the husband defended on the ground that his act of not supporting her was justified by her refusal to live with him and discharge her marital obligations. After thorough consideration of the underlying issues of law and policy, this court held that the wife's conduct amounted to “legal misconduct” and was “a defense to her [separation] action” (242 N. Y., at p. 82).

      The reasoning and policy considerations which led to our decision in the Mirizio case dictate the conclusion here. Marriage, of course, involves something far more fundamental than mere physical propinquity and, as a consequence, abandonment is not limited to mere “technical physical separation”. (Heermance v. James, 47 Barb. 120, 126.) The essence of desertion or abandonment, this court said in Mirizio, is a refusal on the part of one spouse to fulfill “basic obligations springing from the marriage contract” (242 N.Y. 74, 81, supra). Obviously, not every denial of a marital right will be sufficient to support a charge of abandonment. The criterion is how fundamentally the denial strikes at the civil institution of marriage. Where primary rights and duties are involved, where the denial goes to one of the foundations of the marriage, it is the policy of our law to allow a separation from bed and board.

      That a refusal to have marital sexual relations undermines the essential structure of marriage is a proposition basic to this court's decision in the Mirizio case and as obvious as it is authoritative. Sexual relations between man and woman are given a socially and legally sanctioned status only when they take place in marriage and, in turn, marriage is itself distinguished from all other social relationships by the role sexual intercourse between the parties plays in it. This being so, it may not be doubted that a total and irrevocable negation of what is lawful in marriage and unlawful in every other relationship, of what unmistakably and uniquely characterizes marriage and no other relationship, constitutes abandonment in the eyes of the law. (See, e.g., Hayes v. Hayes, 144 Cal. 625, 627 [by statute]; Johnson v. Johnson, 22 Col. 20, 23, 24; Evans v. Evans, 247 Ky. 1, 7; Benton v. Benton, 197 Md. 373, 379; Brown v. Brown, 78 N. H. 337, 338; Weckstein v. Weckstein, 136 N. J. Eq. 113, 114; Darkenwald v. Darkenwald, 66 N. W. 2d 57, 62 [N. D., by statute]; Baker v. Baker, 99 Ore. 213, 215; but see, contra, Southwick v. Southwick, 97 Mass. 327, 329; Fritz v. Fritz, 138 Ill. 436, 439; Dudley v. Dudley, 225 N. C. 83, 86; Segelbaum v. Segelbaum, 39 Minn. 258, 260; Schoessow v. Schoessow, 83 Wis. 553, 554.)

      It is clear, therefore, that the plaintiff now before us is entitled to a separation on the ground of abandonment unless his wife had good legal cause to refuse to have sexual intercourse with him. And, as to that, it is equally clear that she had neither cause nor justification. Although it appears that she acted without malice and was activated by deep-felt and conscientious religious convictions, her motives were not sufficient in law to excuse the abandonment of her marital status. If, as a result of religious scruples, she considers her marriage invalid or non-existent and, on that account, neglects the fulfillment of a primary marital obligation, in fairness and in law her husband must likewise have the power to free himself of its obligations. While our law is not to be “unnecessarily construed in a manner which would be hostile to religion in family life or to any other of those principles of moral, ethical and considerate conduct which ought to govern the marriage relationship,” we may not forget that this State, “as a matter of long-continued policy, * * * has fixed the status of the marriage contract as a civil contract,” governed by civil, not religious, law. (Mirizio v. Mirizio, 242 N.Y. 74, 83, supra.) It follows as a consequence of the civil nature of the marriage contract that a wife who disavows her marriage and repudiates a fundamental marital function out of deep-felt religious conviction has abandoned her husband just as effectively as one who has done so for base and illegitimate motives.

      It is our conclusion, therefore, that on the evidence adduced the plaintiff is entitled to a separation on the ground of abandonment. However, the defendant contends — and the contention finds favor with our dissenting brethren — that the husband may not prevail on the ground of abandonment because in his complaint he characterized his wife's conduct as cruelty, without also calling it abandonment. The argument does not impress us for the complaint indisputably alleges, and, indeed, the defendant admitted both in her answer and in her testimony, all of the facts necessary to support a cause of action for separation based on abandonment. (Civ. Prac. Act, § 241; Rules Civ. Prac., rule 280; see, also, Samios v. Samios, 285 App. Div. 1020.) The mere circumstance that the plaintiff did not in his complaint denominate his wife's conduct as “abandonment,” as well as “cruel and inhuman treatment,” does not change the legal force and effect of the factual allegations. The cause of action is for separation and such a cause is undeniably alleged no matter what the pleader called it. Surely, we have advanced far beyond that hypertechnical period when form was all-important and a pleader had to attach the correct label to his complaint, at the risk of having it dismissed. It is enough now that a pleader state the facts making out a cause of action, and it matters not whether he gives a name to the cause of action at all or even that he gives it a wrong name. If this be true of the cause of action itself, it is certainly true of the ground underlying it.

      Before bringing this opinion to a close, we look briefly to the plaintiff's further requests that his wife be restrained from violating an alleged prenuptial agreement to bring their daughter up as a Protestant and that he be awarded her custody. As to the first of these, it is enough to note that the trial court found that no such prenuptial agreement was made and that there was sufficient evidence to support the finding. As to custody, an affirmance is required because, on the record before us, the primary reason offered by the father to support his claim was the asserted prenuptial agreement as to the child's religious training. If there is any other basis for effecting a change of custody — the child's interest and well-being are, of course, paramount — the plaintiff is free at any time to make an application to the court at Special Term for the necessary modification or amendment of the judgment (Civ. Prac. Act, § 1170).

      The judgment appealed from should be modified by directing entry of a decree of separation in favor of the plaintiff and, except as so modified, affirmed, without costs.

      Chief Judge DESMOND (dissenting).

      The question stated in the opening paragraph of the majority opinion cannot be answered on this record unless we are to forget all about pleadings and issues. This separation action was brought, tried, dismissed and the dismissal affirmed in the Appellate Division on the sole ground of cruelty. Now our court is modifying the judgment below and directing entry of a judgment of separation (not even a retrial or a permission to replead) on the new ground of abandonment although abandonment was not pleaded, tried or in any manner passed upon in either court below.

      The objection, we are told, is hypertechnical. Let us see. “‘Pleadings and a distinct issue are essential to every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action and then recover upon another, his complaint would serve no useful purpose’” (Cohen v. City Co. of New York, 283 N.Y. 112, 117). “It is fundamental that in civil actions the plaintiff must recover upon the facts stated in his complaint, or not at all. In case a complaint proceeds on a definite, clear and certain theory, it will not support or permit another theory because it contains isolated or subsidiary statements consistent therewith. A party must recover not only according to his proofs but according to his pleadings” (Walrath v. Hanover Fire Ins. Co., 216 N.Y. 220, 225). Where, when or why those settled rules disappeared from our system I do not know. For no reason at all we are making a precipitous retreat from the good old rule that the parties to a private lawsuit fix the theory of suit and that no appellate court can present the losing side with a new theory. I have not been backward in advocating modernized and speeded-up procedures but I can find no reason for this abrupt departure from the rules that courts and lawyers have always lived by.

      It should not be necessary to demonstrate that in matrimonial law abandonment is a definite concept, different from cruelty, and that it must be pleaded and proved as such. Abandonment is “a voluntary separation of one party from the other without justification, with the intention of not returning” (Williams v. Williams, 130 N.Y. 193, 197; Bohmert v. Bohmert, 241 N.Y. 446, 451). Nothing like that was proven or decided in the present case. The entirely different charge of cruelty was urged on the courts below and that charge was dismissed. For our court to introduce and decide a new issue, whatever its merits, is unprecedented and unlawful (see Civ. Prac. Act, § 242; Flagg v. Nichols, 307 N.Y. 96, 99).

      The judgment should be affirmed, with costs.

      Judgment modified in accordance with the opinion herein and, as so modified, affirmed, without costs.

      Tax Law: Alimony versus Child Support: Commissioner v. Lester (1961)

      Editor's note: The U.S. Supreme court ruled that alimony payments are tax deductible for the payer and taxable for the payee pursuant to a written agreement except any portion designated as childsupport, which is not deductible for the payer and not taxable for the payee. Though long advocated, there is no federal divorce law; the bulk of family law in general falls to the states. Because federal income tax law and state divorce laws both changed so much and so frequently over the 20th century, the interplay between them was complicated. Here the Supreme Court considers how much of a man's support payments to his ex-wife constitute child support (nondeductible for him, nor taxed as income for her), with the remainder alimony (deductible for him, taxable income for her).

      366 U.S. 299 (1961)

      COMMISSIONER OF INTERNAL REVENUE

      v.

      LESTER.

      No. 376.

      Supreme Court of United States.

      Argued April 25, 1961.

      Decided May 22, 1961.

      CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

      C. Guy Tadlock argued the cause for petitioner. With him on the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Rice, Assistant Attorney General Oberdorfer, Melva M. Graney and Norman H. Wolfe.

      Louis Mandel argued the cause for respondent. With him on the brief was Leonard J. Lefkort.

      MR. JUSTICE CLARK delivered the opinion of the Court.

      The sole question presented by this suit, in which the Government seeks to recover personal income tax deficiencies, involves the validity of respondent's deductions from his gross income for the taxable years 1951 and 1952 of the whole of his periodic payments during those years to his divorced wife pursuant to a written agreement entered into by them and approved by the divorce court. The Commissioner claims that language in this agreement providing “[i]n the event that any of the [three] children of the parties hereto shall marry, become emancipated, or die, then the payments herein specified shall … be reduced in a sum equal to one-sixth of the payments which would thereafter otherwise accrue” sufficiently identifies one-half of the periodic payments as having been “payable for the support” of the taxpayer's minor children under § 22 (k) of the Internal Revenue Code of 1939 and, therefore, not deductible by him under § 23 (u) of the Code. [1] The Tax Court approved the Commissioner's disallowance, 32 T. C. 1156, but the Court of Appeals reversed, 279 F. 2d 354, holding that the agreement did not “fix” with requisite clarity any specific amount or portion of the periodic payments as payable for the support of the children and that all sums paid to the wife under the agreement were, therefore, deductible from respondent's gross income under the alimony provision of § 23 (u). To resolve a conflict among the Courts of Appeals on the question,[2] we granted certiorari. 364 U. S. 890. We have concluded that the Congress intended that, to come within the exception portion of § 22 (k), the agreement providing for the periodic payments must specifically state the amounts or parts thereof allocable to the support of the children. Accordingly, we affirm the judgment of the Court of Appeals.

      Prior to 1942, a taxpayer was generally not entitled to deduct from gross income amounts payable to a former spouse as alimony, Douglas v. Willcuts, 296 U. S. 1 (1935), except in situations in which the divorce decree, the settlement agreement and state law operated as a complete discharge of the liability for support. Helvering v. Fitch, 309 U. S. 149 (1940). The hearings, Senate debates and the Report of the Ways and Means Committee of the House all indicate that it was the intention of Congress, in enacting § 22 (k) and § 23 (u) of the Code, to eliminate the uncertain and inconsistent tax consequences resulting from the many variations in state law. “[T]he amendments are designed to remove the uncertainty as to the tax consequences of payments made to a divorced spouse ….” S. Rep. No. 673, Pt. 1, 77th Cong., 1st Sess. 32. They “will produce uniformity in the treatment of amounts paid … regardless of variance in the laws of different States ….” H. R. Rep. No. 2333, 77th Cong., 2d Sess. 72. In addition, Congress realized that the “increased surtax rates[3] would intensify” the hardship on the husband who, in many cases, “would not have sufficient income left after paying alimony to meet his income tax obligations,” H. R. Rep. No. 2333, 77th Cong., 2d Sess. 46, and perhaps also that, on the other hand, the wife, generally being in a lower income tax bracket than the husband, could more easily protect herself in the agreement and in the final analysis receive a larger net payment from the husband if he could deduct the gross payment from his income. The first version of § 22 (k) was proposed by the Senate as an amendment to the Revenue Act of 1941. The sums going to child support were to be includible in the husband's gross income only if the amount thereof was “specifically designated as a sum payable for the support of minor children of the spouses.” H. R. 5417, 77th Cong., 1st Sess., § 117. The proposed amendment thus drew a distinction between a case in which the amount for child support was “specifically designated” in the agreement, and one in which there was no such designation. In the latter event, “the whole of such amounts are includible in the income of the wife ….” S. Rep. No. 673, Pt. 1, 77th Cong., 1st Sess. 35. Action on the bill was deferred by the conference committee [4] and hearings on the measure were again held the following year. The subsequent Report of the Senate Finance Committee on § 22 (k) carried forward the term “specifically designated,” used in the 1941 Report (No. 673), with this observation:

      “If, however, the periodic payments … are received by the wife for the support and maintenance of herself and of minor children of the husband without such specific designation of the portion for the support of such children, then the whole of such amounts is includible in the income of the wife as provided in section 22 (k) ….” S. Rep. No. 1631, 77th Cong., 2d Sess. 86.

      As finally enacted in 1942, the Congress used the word “fix” instead of the term “specifically designated,” but the change was explained in the Senate hearings as “a little more streamlined language.” Hearings before Senate Committee on Finance on H. R. 7378, 77th Cong., 2d Sess. 48. As the Office of the Legislative Counsel reported to the Senate Committee:

      “If an amount is specified in the decree of divorce attributable to the support of minor children, that amount is not income of the wife …. If, however, that amount paid the wife includes the support of children, but no amount is specified for the support of the children, the entire amount goes into the income of the wife ….” Ibid. (Italics supplied.)

      This language leaves no room for doubt. The agreement must expressly specify or “fix” a sum certain or percentage of the payment for child support before any of the payment is excluded from the wife's income. The statutory requirement is strict and carefully worded. It does not say that “a sufficiently clear purpose” on the part of the parties is sufficient to shift the tax. It says that the “written instrument” must “fix” that “portion of the payment” which is to go to the support of the children. Otherwise, the wife must pay the tax on the whole payment. We are obliged to enforce this mandate of the Congress.

      One of the basic precepts of the income tax law is that “[t]he income that is subject to a man's unfettered command and that he is free to enjoy at his own option may be taxed to him as his income, whether he sees fit to enjoy it or not.” Corliss v. Bowers, 281 U. S. 376, 378 (1930). Under the type of agreement here, the wife is free to spend the monies paid under the agreement as she sees fit. “The power to dispose of income is the equivalent of ownership of it.” Helvering v. Horst, 311 U. S. 112, 118 (1940). Including the entire payments in the wife's gross income under such circumstances, therefore, comports with the underlying philosophy of the Code. And, as we have frequently stated, the Code must be given “as great an internal symmetry and consistency as its words permit.” United States v. Olympic Radio & Television, 349 U. S. 232, 236 (1955).

      It does not appear that the Congress was concerned with the perhaps restricted uses of unspecified child-support payments permitted the wife by state law when it made those sums includible within the wife's alimony income. Its concern was with a revenue measure and with the specificity, for income tax purposes, of the amount payable under the terms of the written agreement for support of the children. Therefore, in construing that revenue act, we too are unconcerned with the variant legal obligations, if any, which such an agreement, by construction of its nonspecific provisions under local rules, imposes upon the wife to use a certain portion of the payments solely for the support of the children. The Code merely affords the husband a deduction for any portion of such payment not specifically earmarked in the agreement as payable for the support of the children.

      As we read § 22 (k), the Congress was in effect giving the husband and wife the power to shift a portion of the tax burden from the wife to the husband by the use of a simple provision in the settlement agreement which fixed the specific portion of the periodic payment made to the wife as payable for the support of the children. Here the agreement does not so specifically provide. On the contrary, it calls merely for the payment of certain monies to the wife for the support of herself and the children. The Commissioner makes much of the fact that the agreement provides that as, if, and when any one of the children married, became emancipated or died the total payment would be reduced by one-sixth, saying that this provision did “fix” one-half (one-sixth multiplied by three, the number of children) of the total payment as payable for the support of the children. However, the agreement also pretermitted the entire payment in the event of the wife's remarriage and it is as consistent to say that this provision had just the opposite effect. It was just such uncertainty in tax consequences that the Congress intended to and, we believe, did eliminate when it said that the child-support payments should be “specifically designated” or, as the section finally directed, “fixed.” It does not say that “a sufficiently clear purpose” on the part of the parties would satisfy. It says that the written instrument must “fix” that amount or “portion of the payment” which is to go to the support of the children.

      The Commissioner contends that administrative interpretation has been consistently to the contrary. It appears, however, that there was such a contrariety of opinion among the Courts of Appeals that the Commissioner was obliged as late as 1959 to issue a Revenue Ruling which stated that the Service would follow the rationale of Eisinger v. Commissioner, 250 F. 2d 303 (C. A. 9th Cir. 1957),[5] but that Weil v. Commissioner, 240 F. 2d 584 (C. A. 2d Cir. 1957),[6] would be followed “in cases involving similar facts and circumstances.” Rev. Rul. 59–93, 1959–1 Cum. Bull. 22, 23.

      All of these considerations lead to the conclusion that if there is to be certainty in the tax consequences of such agreements the allocations to child support made therein must be “specifically designated” and not left to determination by inference or conjecture. We believe that the Congress has so demanded in § 22 (k). After all, the parties may for tax purposes act as their best interests dictate, provided, as that section requires, their action be clear and specific. Certainly the Congress has required no more and expects no less.

      Affirmed.

      MR. JUSTICE DOUGLAS, concurring.

      While I join the opinion of the Court, I add a few words. In an early income tax case, Mr. Justice Holmes said “Men must turn square corners when they deal with the Government.” RockIsland, A. & L. R. Co. v. United States, 254 U. S. 141, 143. The revenue laws have become so complicated and intricate that I think the Government in moving against the citizen should also turn square corners. The Act, 1939 I. R. C. § 22 (k), makes taxable to the husband that part of alimony payments “which the terms of the decree or written instrument fix, in terms of an amount of money or a portion of the payment, as a sum” payable for support of minor children.

      I agree with the Court that this agreement did not “fix” any such amount. To be sure, an amount payable in support of minor children may be inferred from the proviso that one-sixth of the payment shall no longer be due, if the children marry, become emancipated, or die. But Congress in enacting this law realized that some portion of alimony taxable to the wife might be used for support of the children, as the opinion of the Court makes clear.

      The present agreement makes no specific designation of the portion that is intended for the support of the children. It is not enough to say that the sum can be computed. Congress drew a clear line when it used the word “fix.” Resort to litigation, rather than to Congress, for a change in the law is too often the temptation of government which has a longer purse and more endurance than any taxpayer.

      [1] Section 22 (k) of the Internal Revenue Code of 1939, 56 Stat. 816–817, provided in part that.” … periodic payments … received [by the wife] subsequent to [a decree of divorce] … in discharge of … a legal obligation which, because of the marital or family relationship, is imposed upon or incurred by such husband under … a written instrument incident to such divorce … shall be includible in the gross income of such wife …. This subsection shall not apply to that part of any such periodic payment which the terms of the … written instrument fix, in terms of … a portion of the payment, as a sum which is payable for the support of minor children of such husband.” (Emphasis added.)

      Section 23 (u), 56 Stat. 817, stated in pertinent part that there shall be allowed as a deduction “[i]n the case of a husband described in section 22 (k), amounts includible under section 22 (k) in the gross income of his wife, payment of which is made within the husband's taxable year.”

      [2] Both Metcalf v. Commissioner, 271 F. 2d 288 (C. A. 1st Cir. 1959), and Eisinger v. Commissioner, 250 F. 2d 303 (C. A. 9th Cir. 1957), have arrived at conclusions contrary to those of the court below.

      [3] Sections 22 (k) and 23 (u) were enacted as part of the Revenue Act of 1942 which provided for greatly increased tax revenue to meet the expenses of World War II.

      [4] H. R. Rep. No. 1203, 77th Cong., 1st Sess. 11.

      [5] The court there approved the rule that “when the settlement agreement, read as a whole, discloses that the parties have earmarked or designated … the payments to be made, one part to be payable for alimony, and another part to be payable for the support of children, with sufficient certainty and specificity to readily determine which is which, without reference to contingencies which may never come into being, then the ‘part of any periodic payment’ has been fixed ‘by the terms of the decree or written instrument’ ….” 250 F. 2d, at 308.

      [6] In that case the agreement provided for reductions only in the event the divorced wife remarried. The court stated that “[t]he fortuitous or incidental mention of a figure in a provision meant to be inoperative, unless some more or less probable future event occurs, will not suffice to shift the tax burden from the wife to the husband.” 240 F. 2d, at 588.

      Tax Law: Transfer of Property: United States v. Davis (1962)

      Editor's note: The U.S. Supreme Court ruled that transfer of appreciated property from one spouse to another upon divorce results in taxable gain to the recipient. While the division of joint property is not a taxable event—retaining sole ownership of something that one previously sharedjoint ownership on does not constitute income—the case here is more complicated. The property transferred was shares of stock (the husband's personal property) that had appreciated in value. The appellate court ruled that the wife's rights over the shares prior to divorce were not sufficient to consider her a co-owner, and that thus the transfer did not constitute a nontaxable division of property. An interesting aspect of this decision is the court's need to determine the profit of a transaction in which marital rights are dissolved in exchange for stock.

      370 U.S. 65 (1962)

      UNITED STATES

      v.

      DAVIS ET AL.

      No. 190.

      Supreme Court of United States.

      Argued March 28, 1962.

      Decided June 4, 1962.[*]

      CERTIORARI TO THE COURT OF CLAIMS.

      I. Henry Kutz and Harold C. Wilkenfeld argued the cause for the United States in both cases. With them on the briefs were Solicitor General Cox, Assistant Attorney General Oberdorfer, Wayne G. Barnett, Meyer Rothwacks and Arthur I. Gould.

      Converse Murdoch argued the cause and filed briefs for the respondents in No. 190 and petitioners in No. 268.

      MR. JUSTICE CLARK delivered the opinion of the Court.

      These cases involve the tax consequences of a transfer of appreciated property by Thomas Crawley Davis [1] to his former wife pursuant to a property settlement agreement executed prior to divorce, as well as the deductibility of his payment of her legal expenses in connection therewith. The Court of Claims upset the Commissioner's determination that there was taxable gain on the transfer but upheld his ruling that the fees paid the wife's attorney were not deductible. 152 Ct. Cl. 805, 287 F. 2d 168. We granted certiorari on a conflict in the Court of Appeals and the Court of Claims on the taxability of such transfers. [2] 368 U. S. 813. We have decided that the taxpayer did have a taxable gain on the transfer and that the wife's attorney's fees were not deductible.

      In 1954 the taxpayer and his then wife made a voluntary property settlement and separation agreement calling for support payments to the wife and minor child in addition to the transfer of certain personal property to the wife. Under Delaware law all the property transferred was that of the taxpayer, subject to certain statutory marital rights of the wife including a right of intestate succession and a right upon divorce to a share of the husband's property. [4] Specifically as a “division in settlement of their property” the taxpayer agreed to transfer to his wife, inter alia, 1,000 shares of stock in the E. I. du Pont de Nemours & Co. The then Mrs. Davis agreed to accept this division “in full settlement and satisfaction of any and all claims and rights against the husband whatsoever (including but not by way of limitation, dower and all rights under the laws of testacy and intestacy) ….” Pursuant to the above agreement which had been incorporated into the divorce decree, one-half of this stock was delivered in the tax year involved, 1955, and the balance thereafter. Davis' cost basis for the 1955 transfer was $74,775.37, and the fair market value of the 500 shares there transferred was $82,250. The taxpayer also agreed orally to pay the wife's legal expenses, and in 1955 he made payments to the wife's attorney, including $2,500 for services concerning tax matter relative to the property settlement.

      I.

      The determination of the income tax consequence of the stock transfer described above is basically a two-step analysis: (1) Was the transaction a taxable event? (2) If so, how much taxable gain resulted therefrom? Originally the Tax Court (at that time the Board of Tax Appeals) held that the accretion to property transferred pursuant to a divorce settlement could not be taxed as capital gain to the transferor because the amount realized by the satisfaction of the husband's marital obligations was indeterminable and because, even if such benefit were ascertainable, the transaction was a nontaxable division of property. Mesta v. Commissioner, 42 B. T. A. 933 (1940); Halliwell v. Commissioner, 44 B. T. A. 740 (1941). However, upon being reversed in quick succession by the Courts of Appeals of the Third and Second Circuits, Commissioner v. Mesta, 123 F. 2d 986 (C. A. 3d Cir. 1941); Commissioner v. Halliwell, 131 F. 2d 642 (C. A. 2d Cir. 1942), the Tax Court accepted the position of these courts and has continued to apply these views in appropriate cases since that time, Hall v. Commissioner, 9 T. C. 53 (1947); Patino v. Commissioner, 13 T. C. 816 (1949); Estate of Stouffer v. Commissioner, 30 T. C. 1244 (1958); King v. Commissioner, 31 T. C. 108 (1958); Marshman v. Commissioner, 31 T. C. 269 (1958). In Mesta and Halliwell the Courts of Appeals reasoned that the accretion to the property was “realized” by the transfer and that this gain could be measured on the assumption that the relinquished marital rights were equal in value to the property transferred. The matter was considered settled until the Court of Appeals for the Sixth Circuit, in reversing the Tax Court, ruled that, although such a transfer might be a taxable event, the gain realized thereby could not be determined because of the impossibility of evaluating the fair market value of the wife's marital rights. Commissioner v. Marshman, 279 F. 2d 27 (1960). In so holding that court specifically rejected the argument that these rights could be presumed to be equal in value to the property transferred for their release. This is essentially the position taken by the Court of Claims in the instant case.

      II.

      We now turn to the threshold question of whether the transfer in issue was an appropriate occasion for taxing the accretion to the stock. There can be no doubt that Congress, as evidenced by its inclusive definition of income subject to taxation, i. e., “all income from whatever source derived, including … [g]ains derived from dealings in property,”[4] intended that the economic growth of this stock be taxed. The problem confronting us is simply when is such accretion to be taxed. Should the economic gain be presently assessed against taxpayer, or should this assessment await a subsequent transfer of the property by the wife? The controlling statutory language, which provides that gains from dealings in property are to be taxed upon “sale or other disposition,”[5] is too general to include or exclude conclusively the transaction presently in issue. Recognizing this, the Government and the taxpayer argue by analogy with transactions more easily classified as within or without the ambient of taxable events. The taxpayer asserts that the present disposition is comparable to a nontaxable division of property between two co-owners, [6] while the Government contends it more resembles a taxable transfer of property in exchange for the release of an independent legal obligation. Neither disputes the validity of the other's starting point.

      In support of his analogy the taxpayer argues that to draw a distinction between a wife's interest in the property of her husband in a common-law jurisdiction such as Delaware and the property interest of a wife in a typical community property jurisdiction would commit a double sin; for such differentiation would depend upon “elusive and subtle casuistries which … possess no relevance for tax purposes,” Helvering v. Hallock, 309 U. S. 106, 118 (1940), and would create disparities between common-law and community property jurisdictions in contradiction to Congress' general policy of equality between to two. The taxpayer's analogy, however, stumbles on its own premise for the inchoate rights granted a wife in her husband's property by the Delaware law do not even remotely reach the dignity of co-ownership. The wife has no interest—passive or active—over the management or disposition of her husband's personal property. Her rights are not descendable, and she must survive him to share in his intestate estate. Upon dissolution of the marriage she shares in the property only to such extent as the court deems “reasonable.” 13 Del. Code Ann. § 1531 (a). What is “reasonable” might be ascertained independently of the extent of the husband's property by such criteria as the wife's financial condition, her needs in relation to her accustomed station in life, her age and health, the number of children and their ages, and the earning capacity of the husband. See, e. g., Beres v. Beres, 52 Del. 133, 154 A. 2d 384 (1959).

      This is not to say it would be completely illogical to consider the shearing off of the wife's rights in her husband's property as a division of that property, but we believe the contrary to be the more reasonable construction. Regardless of the tags, Delaware seems only to place a burden on the husband's property rather than to make the wife a part owner thereof. In the present context the rights of succession and reasonable share do not differ significantly from the husband's obligations of support and alimony. They all partake more of a personal liability of the husband than a property interest of the wife. The effectuation of these marital rights may ultimately result in the ownership of some of the husband's property as it did here, but certainly this happenstance does not equate the transaction with a division of property by co-owners. Although admittedly such a view may permit different tax treatment among the several States, this Court in the past has not ignored the differing effects on the federal taxing scheme of substantive differences between community property and common-law systems. E. g., Poe v. Seaborn, 282 U. S. 101 (1930). To be sure Congress has seen fit to alleviate this disparity in many areas, e. g., Revenue Act of 1948, 62 Stat. 110, but in other areas the facts of life are still with us.

      Our interpretation of the general statutory language is fortified by the long-standing administrative practice as sounded and formalized by the settled state of law in the lower courts. The Commissioner's position was adopted in the early 40's by the Second and Third Circuits and by 1947 the Tax Court had acquiesced in this view. This settled rule was not disturbed by the Court of Appeals for the Sixth Circuit in 1960 or the Court of Claims in the instant case, for these latter courts in holding the gain indeterminable assumed that the transaction was otherwise a taxable event. Such unanimity of views in support of a position representing a reasonable construction of an ambiguous statute will not lightly be put aside. It is quite possible that this notorious construction was relied upon by numerous taxpayers as well as the Congress itself, which not only refrained from making any changes in the statutory language during more than a score of years but re-enacted this same language in 1954.

      III.

      Having determined that the transaction was a taxable event, we now turn to the point on which the Court of Claims balked, viz., the measurement of the taxable gain realized by the taxpayer. The Code defines the taxable gain from the sale or disposition of property as being the “excess of the amount realized therefrom over the adjusted basis ….” I. R. C. (1954) § 1001 (a). The “amount realized” is further defined as “the sum of any money received plus the fair market value of the property (other than money) received.” I. R. C. (1954) § 1001 (b). In the instant case the “property received” was the release of the wife's inchoate martial rights. The Court of Claims, following the Court of Appeals for the Sixth Circuit, found that there was no way to compute the fair market value of these marital rights and that it was thus impossible to determine the taxable gain realized by the taxpayer. We believe this conclusion was erroneous.

      It must be assumed, we think, that the parties acted at arm's length and that they judged the marital rights to be equal in value to the property for which they were exchanged. There was no evidence to the contrary here. Absent a readily ascertainable value it is accepted practice where property is exchanged to hold, as did the Court of Claims in Philadelphia Park Amusement Co. v. United States, 130 Ct. Cl. 166, 172, 126 F. Supp. 184, 189 (1954), that the values “of the two properties exchanged in an arms-length transaction are either equal in fact, or are presumed to be equal.” Accord, United States v. General Shoe Corp., 282 F. 2d 9 (C. A. 6th Cir. 1960); International Freighting Corp. v. Commissioner, 135 F. 2d 310 (C. A. 2d Cir. 1943). To be sure there is much to be said of the argument that such an assumption is weakened by the emotion, tension and practical necessities involved in divorce negotiations and the property settlements arising therefrom. However, once it is recognized that the transfer was a taxable event, it is more consistent with the general purpose and scheme of the taxing statutes to make a rough approximation of the gain realized thereby than to ignore altogether its tax consequences. Cf. Helvering v. Safe Deposit & Trust Co., 316 U. S. 56, 67 (1942).

      Moreover, if the transaction is to be considered a taxable event as to the husband, the Court of Claims' position leaves up in the air the wife's basis for the property received. In the context of a taxable transfer by the husband, [7] all indicia point to a “cost” basis for this property in the hands of the wife. [8] Yet under the Court of Claims' position her cost for this property. i. e., the value of the marital rights relinquished therefore, would be indeterminable, and on subsequent disposition of the property she might suffer inordinately over the Commissioner's assessment which she would have the burden of proving erroneous, Commissioner v. Hansen, 360 U. S. 446, 468 (1959). Our present holding that the value of these rights is ascertainable eliminates this problem; for the same calculation that determines the amount received by the husband fixes the amount given up by the wife, and this figure, i. e., the market value of the property transferred by the husband, will be taken by her as her tax basis for the property received.

      Finally, it must be noted that here, as well as in relation to the question of whether the event is taxable, we draw support from the prior administrative practice and judicial approval of that practice. See p. 71, supra. We therefore conclude that the Commissioner's assessment of a taxable gain based upon the value of the stock at the date of its transfer has not been shown erroneous.[9]

      IV.

      The attorney-fee question is much simpler. It is the customary practice in Delaware for the husband to pay both his own and his wife's legal expenses incurred in the divorce and the property settlement. Here petitioner paid $5,000 of such fees in the taxable year 1955 earmarked for tax advice in relation to the property settlement. One-half of this sum went to the wife's attorney. The taxpayer claimed that under § 212 (3) of the 1954 Code, which allows a deduction for the “ordinary and necessary expenses paid … in connection with the determination, collection, or refund of any tax,” he was entitled to deduct the entire $5,000. The Court of Claims allowed the $2,500 paid taxpayer's own attorney but denied the like amount paid the wife's attorney. The sole question here is the deductibility of the latter fee; the Government did not seek review of the amount taxpayer paid his own attorney, and we intimate no decision on that point. As to the deduction of the wife's fees, we read the statute, if applicable to this type of tax expense, to include only the expenses of the taxpayer himself and not those of his wife. Here the fees paid her attorney do not appear to be “in connection with the determination, collection, or refund” of any tax of the taxpayer. As the Court of Claims found, the wife's attorney “considered the problems from the standpoint of his client alone. Certainly then it cannot be said that … [his] advice was directed to plaintiff's tax problems ….” 152 Ct. Cl., at 805, 287 F. 2d, at 171. We therefore conclude, as did the Court of Claims, that those fees were not a deductible item to the taxpayer.

      Reversed in part and affirmed in part.

      MR. JUSTICE FRANKFURTER took no part in the decision of these cases.

      MR. JUSTICE WHITE took no part in the consideration or decision of these cases.

      [*] Together with No. 268, Davis et al. v. United States, also on certiorari to the same Court.

      [1] Davis' present wife, Grace Ethel Davis, is also a party to these proceedings because a joint return was filed in the tax year in question.

      [2] The holding in the instant case is in accord with Commissioner v. Marshman, 279 F. 2d 27 (C. A. 6th Cir. 1960), but is contra to the holdings in Commissioner v. Halliwell, 131 F. 2d 642 (C. A. 2d Cir. 1942), and Commissioner v. Mesta, 123 F. 2d 986 (C. A. 3d Cir. 1941).

      [3] 12 Del. Code Ann. (Supp. 1960) § 512; 13 Del. Code Ann. § 1531. In the case of realty, the wife in addition to the above has rights of dower. 12 Del. Code Ann. §§ 502, 901, 904, 905.

      [4] Internal Revenue Code of 1954 § 61 (a).

      [5] Internal Revenue Code of 1954 §§ 1001, 1002.

      [6] Any suggestion that the transaction in question was a gift is completely unrealistic. Property transferred pursuant to a negotiated settlement in return for the release of admittedly valuable rights is not a gift in any sense of the term. To intimate that there was a gift to the extent the value of the property exceeded that of the rights released not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement problem discussed in Part III, infra, p. 71. Cases in which this Court has held transfers of property in exchange for the release of marital rights subject to gift taxes are based not on the premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts. Merrill v. Fahs, 324 U. S. 308 (1945); Commissioner v. Wemyss, 324 U. S. 303 (1945); see Harris v. Commissioner, 340 U. S. 106 (1950). In interpreting the particular income tax provisions here involved, we find ourselves unfettered by the language and considerations ingrained in the gift and estate tax statutes. See Farid-Es-Sultaneh v. Commissioner, 160 F. 2d 812 (C. A. 2d Cir. 1947).

      [7] Under the present administrative practice, the release of marital rights in exchange for property or other consideration is not considered a taxable event as to the wife. For a discussion of the difficulties confronting a wife under a contrary approach, see Taylor and Schwartz, Tax Aspects of Marital Property Agreements, 7 Tax L. Rev. 19, 30 (1951); Comment, The Lump Sum Divorce Settlement as a Taxable Exchange, 8 U. C. L. A. L. Rev. 593, 601–602 (1961).

      [8] Section 1012 of the Internal Revenue Code of 1954 provides that:

      “The basis of property shall be the cost of such property, except as otherwise provided in this subchapter and subchapters C (relating to corporate distributions and adjustments), K (relating to partners and partnerships), and P (relating to capital gains and losses)….”

      [9] We do not pass on the soundness of the taxpayer's other attacks upon this determination, for these contentions were not presented to the Commissioner or the Court of Claims.

      Community Property: Comingling Separate and Community Assets: See v. See (1966)

      Editor's note: Property acquired during a marriage is presumed community property. The California SupremeCourt ruled that if a spouse has “comingled” separate and community property in a joint account and maintains that property acquired during the marriage is “separate property,” he or she must prove there was a deficit in the community funds when the property was purchased, otherwise the property is ruled community property. In this appeal, both ex-spouses dispute the original court's judgment: the husband disputes the alimony award, the charge of extreme cruelty, and the divorce itself; the wife disputes the court's ruling that the couple possessed no community property. Note that both courts imply that the judgment of “extreme cruelty” is influenced by the victim's “intelligence, refinement, and delicacy of sentiment,” from which it may be inferred that behavior is to be evaluated on the basis of its effects. As to the community property matter, the appellate court rejects the original finding that community expenses had exceeded community income, such that there was no community property to be distributed.

      64 Cal.2d 778 (1966)

      LAURANCE A. SEE, Plaintiff and Appellant,

      v.

      ELIZABETH LEE SEE, Defendant and Appellant.

      L. A. No. 27754.

      Supreme Court of California. In Bank.

      July 1, 1966.

      Crowley & Goffin, Arthur J. Crowley and Ron Swearinger for Plaintiff and Appellant.

      Stanley N. Gleis for Defendant and Appellant.

      TRAYNOR, C. J.

      Plaintiff Laurance A. See and cross-complainant Elizabeth Lee See appeal from an interlocutory judgment that grants each a divorce. Laurance attacks the finding that he was guilty of extreme cruelty, the granting of a divorce to Elizabeth, and the award to her of permanent alimony of $5,400 per month. Elizabeth attacks the finding that there was no community property at the time of the divorce. Neither party contests the provisions regarding custody and support of the three minor children.

      The parties were married on October 17, 1941, and they separated about May 10, 1962. Throughout the marriage they were residents of California, and Laurance was employed by a family-controlled corporation, See's Candies, Inc. For most of that period he also served as president of its wholly-owned subsidiary, See's Candy Shops, Inc. In the twenty-one years of the marriage he received more than $1,000,000 in salaries from the two corporations.

      [1] The trial court did not err in finding that plaintiff's actions constituted extreme cruelty. That finding was made upon consideration of all the circumstances of the case in light of the “intelligence, refinement, and delicacy of sentiment of the complaining party” (Nunes v. Nunes, 62 Cal.2d 33, 36 [41 Cal.Rptr. 5, 396 P.2d 37]) and is supported by substantial evidence.

      [2] When repeated instances of offensive conduct are offered to establish cruelty, it is not necessary that each be corroborated.

      [3] The determination of the sufficiency of corroborating evidence is within the sound discretion of the trial court. (Id at p. 37.)

      [4] Nor did the trial court abuse its discretion in awarding alimony to Elizabeth. Alimony may be awarded to either party even though a divorce is granted to both. (Mueller v. Mueller, 44

      Cal.2d 527, 530 [282 P.2d 869]; DeBurgh v. DeBurgh, 39 Cal.2d 858, 874 [250 P.2d 598].) We do not reach plaintiff's contention that the alimony award was excessive. Since that part of the judgment must be reversed for reasons that appear hereafter, the considerations that prompted the amount of the award may no longer be relevant.

      Laurance had a personal account on the books of See's Candies, Inc., denominated Account 13. Throughout the marriage his annual salary from See's Candies, Inc., which was $60,000 at the time of the divorce, was credited to this account and many family expenses were paid by checks drawn on it. To maintain a credit balance in Account 13, Laurance from time to time transferred funds to it from an account at the Security First National Bank, hereafter called the Security Account.

      The funds deposited in the Security Account came primarily from Laurance's separate property. On occasion he deposited his annual $15,000 salary from See's Candy Shops, Inc. in that account as a “reserve against taxes” on that salary. Thus there was a commingling of community property and separate property in both the Security Account and Account 13. Funds from the Security Account were sometimes used to pay community expenses and also to purchase some of the assets held in Laurance's name at the time of the divorce proceedings.

      Over Elizabeth's objection, the trial court followed a theory advanced by Laurance that a proven excess of community expenses over community income during the marriage establishes that there has been no acquisition of property with community funds.

      Such a theory, without support in either statutory or case law of this state, would disrupt the California community property system. It would transform a wife's interest in the community property from a “present, existing and equal interest” as specified by Civil Code section 161a, into an inchoate expectancy to be realized only if upon termination of the marriage the community income fortuitously exceeded community expenditures. It would engender uncertainties as to testamentary and inter vivos dispositions, income, estate and gift taxation, and claims against property.

      [5] The character of property as separate or community is determined at the time of its acquisition. (In re Miller, 31 Cal.2d 191, 197 [187 P.2d 722]; Siberell v. Siberell, 214 Cal. 767, 770 [7 P.2d 1003]; Bias v. Reed, 169 Cal. 33, 42 [145 P. 516].

      [6] If it is community property when acquired, it remains so throughout the marriage unless the spouses agree to change its nature or the spouse charged with its management makes a gift of it to the other. (Odone v. Marzocchi, 34 Cal.2d 431, 435 [211 P.2d 297, 212 P.2d 233, 17 A.L.R.2d 1109]; Mears v. Mears, 180 Cal. App.2d 484, 499 [4 Cal.Rptr. 618].)

      [7] Property acquired by purchase during a marriage is presumed to be community property, and the burden is on the spouse asserting its separate character to overcome the presumption. (Estate of Niccolls, 164 Cal. 368 [129 P. 278]; Thomasset v. Thomasset, 122 Cal.App.2d 116, 123 [264 P.2d 626].

      [8] The presumption applies when a husband purchases property during the marriage with funds from an undisclosed or disputed source, such as an account or fund in which he has commingled his separate funds with community funds. (Estate of Neilson, 57 Cal.2d 733, 742 [22 Cal.Rptr. 1, 371 P.2d 745].

      [9] He may trace the source of the property to his separate funds and overcome the presumption with evidence that community expenses exceeded community income at the time of acquisition. If he proves that at that time all community income was exhausted by family expenses, he establishes that the property was purchased with separate funds. (Estate of Neilson, supra, at p. 742; Thomasset v. Thomasett, supra, at p. 127.)

      [10] Only when, through no fault of the husband, it is not possible to ascertain the balance of income and expenditures at the time property was acquired, can recapitulation of the total community expenses and income throughout the marriage be used to establish the character of the property. Thus, in Estate of Ades, 81 Cal.App.2d 334 [184 P.2d 1], relied on by plaintiff, this method of tracing was used to establish that assets discovered after the husband's death had been acquired before the marriage. The question was not presented as to the balance of income and expenditures at any specific time during the marriage. In Estate of Arstein, 56 Cal.2d 239 [14 Cal.Rptr. 809, 364 P.2d 33], relied on by plaintiff, the husband's skill and industry in managing his separate property was the source of all community income during the marriage. Not until the trial could a determination be made as to what proportion of the total income was attributable to the husband's skill and industry. In Thomasset v. Thomasset, supra, 122 Cal. App.2d 116, the court made clear that the time of acquisition of disputed property is decisive. “An accountant testified that at the time the various items adjudged to be defendant's separate property were purchased, there were no community funds available. … The evidence [shows] … that at the time the property was purchased the community funds had been exhausted.…” (Id at p. 127.) Anything to the contrary in Patterson v. Patterson, 242 Cal.App.2d_____[51 Cal.Rptr. 339], is disapproved.

      [11] A husband who commingles the property of the community with his separate property, but fails to keep adequate records cannot invoke the burden of record keeping as a justification for a recapitulation of income and expenses at the termination of the marriage that disregards any acquisitions that may have been made during the marriage with community funds.

      [12] If funds used for acquisitions during marriage cannot otherwise be traced to their source and the husband who has commingled property is unable to establish that there was a deficit in the community accounts when the assets were purchased, the presumption controls that property acquired by purchase during marriage is community property.

      [13] The husband may protect his separate property by not commingling community and separate assets and income. Once he commingles, he assumes the burden of keeping records adequate to establish the balance of community income and expenditures at the time an asset is acquired with commingled property.

      The trial court also followed the theory that a husband who expends his separate property for community expenses is entitled to reimbursement from community assets. This theory likewise lacks support in the statutory or case law of this state. A husband is required to support his wife and family. (Civ. Code, 155, 196, 242).

      [14] Indeed, husband and wife assume mutual obligations of support upon marriage. These obligations are not conditioned on the existence of community property or income.

      [15] The duty to support imposed upon husbands by Civil Code section 155 and upon wives by Civil Code section 176 requires the use of separate property of the parties when there is no community property. There is no right to reimbursement under the statutes.

      [16] Likewise a husband who elects to use his separate property instead of community property to meet community expenses cannot claim reimbursement.

      [17] In the absence of an agreement to the contrary, the use of his separate property by a husband for community purposes is a gift to the community. The considerations that underlie the rule denying reimbursement to either the community or the husband's separate estate for funds expended to improve a wife's separate property (Dunn v. Mullan, 211 Cal. 583, 589 [296 P. 604, 77 A.L.R. 1015]) apply with equal force here.

      [18] The husband has both management and control of the community property (Civ. Code, 172, 172a) along with the right to select the place and mode of living. (Civ. Code, 156.) His use of separate property to maintain a standard of living that cannot be maintained with community resources alone no more entitles him to reimbursement from after- acquired community assets than it would from existing community assets.

      [19] Nor can we approve the recognition of an exception, a right to reimbursement of separate funds expended for community purposes at a time when a community bank account is exhausted. (Kenney v. Kenney, 128 Cal.App.2d 128, 136 [274 P.2d 951]; Thomasset v. Thomasett, supra, 122 Cal.App.2d 116, 126; Hill v. Hill, 82 Cal.App.2d 682, 698 [187 P.2d 28]; cf. Mears v. Mears, supra, 180 Cal.App.2d 484, 508.) Although this exception was restricted to recovery from the same community account when replenished, there is no statutory basis for it, and the court that first declared it cited no authority to support it. Such an exception conflicts with the long- standing rule that a wife who uses her separate funds in payment of family expenses without agreement regarding repayment cannot require her husband to reimburse her. (Ives v. Connacher, 162 Cal. 174, 177 [121 P. 394]; Blackburn v. Blackburn, 160 Cal.App.2d 301, 304 [324 P.2d 971]; Thomson v. Thomson, 81 Cal.App. 678 [254 P. 644]; cf. Haseltine v. Haseltine, 203 Cal.App.2d 48 [21 Cal.Rptr. 238].) Nor is a wife required to reimburse her husband in the converse situation, particularly since the husband has the control and management of community expenses and resources.

      [20] The basic rule is that the party who uses his separate property for community purposes is entitled to reimbursement from the community or separate property of the other only if there is an agreement between the parties to that effect. To the extent that they conflict with this rule Mears v. Mears, supra, 180 Cal.App.2d 484; Kenney v. Kenney, supra, 128 Cal.App.2d 128; Thomasset v. Thomasset, supra, 122 Cal.App.2d 116; and Hill v. Hill, 82 Cal.App.2d 682 [187 P.2d 28], are disapproved.

      Elizabeth makes several additional assignments of error relative to specific assets in existence on the dissolution of the marriage but not found to be community property.

      [21] The record does not afford a basis for determining the nature of these assets, with the exception of Laurance's interest in the profit-sharing trusts of the two See corporations. His interest in these funds arose by virtue of his employment and was irrevocable at the time of the divorce. It was therefore unquestionably a community property asset.

      Plaintiff has not met his burden of proving an excess of community expenses over community income at the times the other assets purchased during the marriage were acquired. The part of the judgment finding them to be his separate property is therefore reversed.

      [22] Since the property issues were tried on the theory that the nature of the property could be determined by proving total community income and expenditures and since the parties may have additional evidence that would otherwise have been presented, plaintiff's failure to overcome the presumption that the assets are community property is not conclusive. We therefore remand the case for retrial of the property issues. Since the court considered the lack of community property a significant factor in determining the amount of the alimony award, that part of the judgment is also reversed.

      The judgment is affirmed in all other respects. Elizabeth shall recover her costs on both appeals.

      McComb, J., Peters, J., Tobriner, J., Peek, J., Mosk, J., and Burke, J., concurred.

      Child Custody: Father versus Grandparents: Painter v. Bannister (1966)

      Editor's note: Custody was ruled in favor of a child's grandparents instead of the father when the court relied on the testimony of a psychologist regarding the child's best interests. In the United States, child custody is one of the matters most subject to the discretion of the court. The priority of the well being of the child over the exercise of parental rights is so ingrained in the legal system that Americans are often startled to discover that this priority is not globally held. In order to serve the child's interests, courts in most states have broad powers to assign and revoke custody. In this case the court rules on a custody battle between a boy's father and his maternal grandparents, who have had physical custody for three years.

      140 N.W.2d 152 (1966)

      Mark Wendell PAINTER, a Minor, by Harold W. Painter, his Father and Next Friend, Appellee,

      v.

      Dwight BANNISTER and Margaret Bannister, Husband and Wife, Appellants.

      No. 51974.

      Supreme Court of Iowa.

      February 8, 1966.

      Lundy, Butler, Wilson & Hall, Eldora, for appellants.

      Payer & Vanderbur, Ames, for appellee.

      STUART, Justice.

      We are here setting the course for Mark Wendell Painter's future. Our decision on the custody of this 7 year old boy will have a marked influence on his whole life. The fact that we are called upon many times a year to determine custody matters does not make the exercising of this awesome responsibility any less difficult. Legal training and experience are of little practical help in solving the complex problems of human relations. However, these problems do arise and under our system of government, the burden of rendering a final decision rests upon us. It is frustrating to know we can only resolve, not solve, these unfortunate situations.

      The custody dispute before us in this habeas corpus action is between the father, Harold Painter, and the maternal grandparents, Dwight and Margaret Bannister. Mark's mother and younger sister were killed in an automobile accident on December 6, 1962 near Pullman, Washington. The father, after other arrangements for Mark's care had proved unsatisfactory, asked the Bannisters, to take care of Mark. They went to California and brought Mark to their farm home near Ames in July, 1963. Mr. Painter remarried in November, 1964 and about that time indicated he wanted to take Mark back. The Bannisters refused to let him leave and this action was filed in June, 1965. Since July 1965 he has continued to remain in the Bannister home under an order of this court staying execution of the judgment of the trial court awarding custody to the father until the matter could be determined on appeal. For reasons hereinafter stated, we conclude Mark's better interests will be served if he remains with the Bannisters.

      Mark's parents came from highly contrasting backgrounds. His mother was born, raised and educated in rural Iowa. Her parents are college graduates. Her father is agricultural information editor for the Iowa State University Extension Service. The Bannister home is in the Gilbert Community and is well kept, roomy and comfortable. The Bannisters are highly respected members of the community. Mr. Bannister has served on the school board and regularly teaches a Sunday school class at the Gilbert Congregational Church. Mark's mother graduated from Grinnell College. She then went to work for a newspaper in Anchorage, Alaska, where she met Harold Painter.

      Mark's father was born in California. When he was 2½ years old, his parents were divorced and he was placed in a foster home. Although he has kept in contact with his natural parents, he considers his foster parents, the McNelly's as his family. He flunked out of a high school and a trade school because of a lack of interest in academic subjects, rather than any lack of ability. He joined the navy at 17. He did not like it. After receiving an honorable discharge, he took examinations and obtained his high school diploma. He lived with the McNelly's and went to college for 2½ years under the G.I. bill. He quit college to take a job on a small newspaper in Ephrata, Washington in November 1955. In May 1956, he went to work for the newspaper in Anchorage which employed Jeanne Bannister.

      Harold and Jeanne were married in April, 1957. Although there is a conflict in the evidence on the point, we are convinced the marriage, overall, was a happy one with many ups and downs as could be expected in the uniting of two such opposites.

      We are not confronted with a situation where one of the contesting parties is not a fit or proper person. There is no criticism of either the Bannisters or their home. There is no suggestion in the record that Mr. Painter is morally unfit. It is obvious the Bannisters did not approve of their daughter's marriage to Harold Painter and do not want their grandchild raised under his guidance. The philosophies of life are entirely different. As stated by the psychiatrist who examined Mr. Painter at the request of Bannisters' attorneys: “It is evident that there exists a large difference in ways of life and value systems between the Bannisters and Mr. Painter, but in this case, there is no evidence that psychiatric instability is involved. Rather, these divergent life patterns seem to represent alternative normal adaptations.”

      It is not our prerogative to determine custody upon our choice of one of two ways of life within normal and proper limits and we will not do so. However, the philosophies are important as they relate to Mark and his particular needs.

      The Bannister home provides Mark with a stable, dependable, conventional, middle-class, middlewest background and an opportunity for a college education and profession, if he desires it. It provides a solid foundation and secure atmosphere. In the Painter home, Mark would have more freedom of conduct and thought with an opportunity to develop his individual talents. It would be more exciting and challenging in many respects, but romantic, impractical and unstable. Little additional recitation of evidence is necessary to support our evaluation of the Bannister home. It might be pointed out, however, that Jeanne's three sisters also received college educations and seem to be happily married to college graduates.

      Our conclusion as to the type of home Mr. Painter would offer is based upon his Bohemian approach to finances and life in general. We feel there is much evidence which supports this conclusion. His main ambition is to be a free lance writer and photographer. He has had some articles and picture stories published, but the income from these efforts has been negligible. At the time of the accident, Jeanne was willingly working to support the family so Harold could devote more time to his writing and photography. In the 10 years since he left college, he has changed jobs seven times. He was asked to leave two of them; two he quit because he didn't like the work; two because he wanted to devote more time to writing and the rest for better pay. He was contemplating a move to Berkeley at the time of trial. His attitude toward his career is typified by his own comments concerning a job offer:

      “About the Portland news job, I hope you understand when I say it took guts not to take it; I had to get behind myself and push. It was very, very tempting to accept a good salary and settle down to a steady, easy routine. As I approached Portland, with the intention of taking the job, I began to ask what, in the long run, would be the good of this job: 1, it was not really what I wanted; 2, Portland is just another big farm town, with none of the stimulation it takes to get my mind sparking. Anyway, I decided Mark and myself would be better off if I went ahead with what I've started and the hell with the rest, sink, swim or starve.”

      There is general agreement that Mr. Painter needs help with his finances. Both Jeanne and Marilyn, his present wife, handled most of them. Purchases and sales of books, boats, photographic equipment and houses indicate poor financial judgment and an easy come easy go attitude. He dissipated his wife's estate of about $4300, most of which was a gift from her parents and which she had hoped would be used for the children's education. The psychiatrist classifies him as “a romantic and somewhat of a dreamer”. An apt example are the plans he related for himself and Mark in February 1963: “My thought now is to settle Mark and myself in Sausilito, near San Francisco; this is a retreat for wealthy artists, writers, and such aspiring artists and writers as can fork up the rent money. My plan is to do expensive portraits ($150 and up), sell prints ($15 and up) to the tourists who flock in from all over the world * * *”

      The house in which Mr. Painter and his present wife live, compared with the well kept Bannister home, exemplifies the contrasting ways of life. In his words “it is a very old and beat up and lovely home * * *”. They live in the rear part. The interior is inexpensively but tastefully decorated. The large yard on a hill in the business district of Walnut Creek, California, is of uncut weeds and wild oats. The house “is not painted on the outside because I do not want it painted. I am very fond of the wood on the outside of the house.”

      The present Mrs. Painter has her master's degree in cinema design and apparently likes and has had considerable contact with children. She is anxious to have Mark in her home. Everything indicates she would provide a leveling influence on Mr. Painter and could ably care for Mark.

      Mr. Painter is either an agnostic or atheist and has no concern for formal religious training. He has read a lot of Zen Buddhism and “has been very much influenced by it”. Mrs. Painter is Roman Catholic. They plan to send Mark to a Congregational Church near the Catholic Church, on an irregular schedule.

      He is a political liberal and got into difficulty in a job at the University of Washington for his support of the activities of the American Civil Liberties Union in the university news bulletin.

      There were “two funerals” for his wife. One in the basement of his home in which he alone was present. He conducted the service and wrote her a long letter. The second at a church in Pullman was for the gratification of her friends. He attended in a sport shirt and sweater.

      These matters are not related as a criticism of Mr. Painter's conduct, way of life or sense of values. An individual is free to choose his own values, within bounds, which are not exceeded here. They do serve however to support our conclusion as to the kind of life Mark would be exposed to in the Painter household. We believe it would be unstable, unconventional, arty, Bohemian, and probably intellectually stimulating.

      Were the question simply which household would be the most suitable in which to raise a child, we would have unhesitatingly chosen the Bannister home. We believe security and stability in the home are more important than intellectual stimulation in the proper development of a child. There are, however, several factors which have made us pause.

      First, there is the presumption of parental preference, which though weakened in the past several years, exists by statute. Code of Iowa, Section 668.1; Finken v. Porter, 246 Iowa 1345, 72 N.W. 2d 445; Kouris v. Lunn, Iowa, 136 N.W.2d 502; Vanden Heuvel v. Vanden Heuvel, 254 Iowa 1391, 1399, 121 N.W.2d 216. We have a great deal of sympathy for a father, who in the difficult period of adjustment following his wife's death, turns to the maternal grandparents for their help and then finds them unwilling to return the child. There is no merit in the Bannister claim that Mr. Painter permanently relinquished custody. It was intended to be a temporary arrangement. A father should be encouraged to look for help with the children, from those who love them without the risk of thereby losing the custody of the children permanently. This fact must receive consideration in cases of this kind. However, as always, the primary consideration is the best interest of the child and if the return of custody to the father is likely to have a seriously disrupting and disturbing effect upon the child's development, this fact must prevail. Vanden Heuvel v. Vanden Heuvel, supra; In re Guardianship of Plucar, 247 Iowa 394, 403, 72 N.W.2d 455; Carrere v. Prunty, Iowa, 133 N.W.2d 692, 696; Finken v. Porter, supra; Kouris v. Lunn, supra, R.C.P. 344(f) 15.

      Second, Jeanne's will named her husband guardian of her children and if he failed to qualify or ceased to act, named her mother. The parent's wishes are entitled to consideration. Finken v. Porter, supra.

      Third, the Bannister's are 60 years old. By the time Mark graduates from high school they will be over 70 years old. Care of young children is a strain on grandparents and Mrs. Bannister's letters indicate as much.

      We have considered all of these factors and have concluded that Mark's best interest demands that his custody remain with the Bannisters. Mark was five when he came to their home. The evidence clearly shows he was not well adjusted at that time. He did not distinguish fact from fiction and was inclined to tell “tall tales” emphasizing the big “I”. He was very aggressive toward smaller children, cruel to animals, not liked by his classmates and did not seem to know what was acceptable conduct. As stated by one witness: “Mark knew where his freedom was and he didn't know where his boundaries were.” In two years he made a great deal of improvement. He now appears to be well disciplined, happy, relatively secure and popular with his classmates, although still subject to more than normal anxiety.

      We place a great deal of reliance on the testimony of Dr. Glenn R. Hawks, a child psychologist. The trial court, in effect, disregarded Dr. Hawks' opinions stating: “The court has given full consideration to the good doctor's testimony, but cannot accept it at full face value because of exaggerated statements and the witness' attitude on the stand.” We, of course, do not have the advantage of viewing the witness' conduct on the stand, but we have carefully reviewed his testimony and find nothing in the written record to justify such a summary dismissal of the opinions of this eminent child psychologist.

      Dr. Hawks is head of the Department of Child Development at Iowa State University. However, there is nothing in the record which suggests that his relationship with the Bannisters is such that his professional opinion would be influenced thereby. Child development is his specialty and he has written many articles and a textbook on the subject. He is recognized nationally, having served on the staff of the 1960 White House Conference on Children and Youth and as consultant on a Ford Foundation program concerning youth in India. He is now education consultant on the project “Head Start”. He has taught and lectured at many universities and belongs to many professional associations. He works with the Iowa Children's Home Society in placement problems. Further detailing of his qualifications is unnecessary.

      Between June 15th and the time of trial, he spent approximately 25 hours acquiring information about Mark and the Bannisters, including appropriate testing of and “depth interviews” with Mark. Dr. Hawks' testimony covers 70 pages of the record and it is difficult to pinpoint any bit of testimony which precisely summarizes his opinion. He places great emphasis on the “father figure” and discounts the importance of the “biological father”. “The father figure is a figure that the child sees as an authority figure, as a helper, he is a nutrient figure, and one who typifies maleness and stands as maleness as far as the child is concerned.”

      His investigation revealed: “* * * the strength of the father figure before Mark came to the Bannisters is very unclear. Mark is confused about the father figure prior to his contact with Mr. Bannister.” Now, “Mark used Mr. Bannister as his father figure. This is very evident. It shows up in the depth interview, and it shows up in the description of Mark's life given by Mark. He has a very warm feeling for Mr. Bannister.”

      Dr. Hawks concluded that it was not for Mark's best interest to be removed from the Bannister home. He is criticized for reaching this conclusion without investigating the Painter home or finding out more about Mr. Painter's character. He answered:

      “I was most concerned about the welfare of the child, not the welfare of Mr. Painter, not about the welfare of the Bannisters. In as much as Mark has already made an adjustment and sees the Bannisters as his parental figures in his psychological makeup, to me this is the most critical factor. Disruption at this point, I think, would be detrimental to the child even tho Mr. Painter might well be a paragon of virtue. I think this would be a kind of thing which would not be in the best interest of the child. I think knowing something about where the child is at the present time is vital. I think something about where he might go, in my way of thinking is essentially untenable to me, and relatively unimportant. It isn't even helpful. The thing I was most concerned about was Mark's view of his own reality in which he presently lives. If this is destroyed I think it will have rather bad effects on Mark. I think then if one were to make a determination whether it would be to the parents' household, or the McNelly household, or X-household, then I think the further study would be appropriate.” Dr. Hawks stated: “I am appalled at the tremendous task Mr. Painter would have if Mark were to return to him because he has got to build the relationship from scratch. There is essentially nothing on which to build at the present time. Mark is aware Mr. Painter is his father, but he is not very clear about what this means. In his own mind the father figure is Mr. Bannister. I think it would take a very strong person with everything in his favor in order to build a relationship as Mr. Painter would have to build at this point with Mark.”

      It was Dr. Hawks' opinion “the chances are very high (Mark) will go wrong if he is returned to his father”. This is based on adoption studies which “establish that the majority of adoptions in children who are changed, from ages six to eight, will go bad, if they have had a prior history of instability, some history of prior movement. When I refer to instability I am referring to where there has been no attempt to establish a strong relationship.” Although this is not an adoption, the analogy seems appropriate, for Mark who had a history of instability would be removed from the only home in which he has a clearly established “father figure” and placed with his natural father about whom his feelings are unclear.

      We know more of Mr. Painter's way of life than Dr. Hawks. We have concluded that it does not offer as great a stability or security as the Bannister home. Throughout his testimony he emphasized Mark's need at this critical time is stability. He has it in the Bannister home.

      Other items of Dr. Hawks' testimony which have a bearing on our decision follow. He did not consider the Bannisters' age anyway disqualifying. He was of the opinion that Mark could adjust to a change more easily later on, if one became necessary, when he would have better control over his environment. He believes the presence of other children in the home would have a detrimental effect upon Mark's adjustment whether this occurred in the Bannister home or the Painter home.

      The trial court does not say which of Dr. Hawks' statements he felt were exaggerated. We were most surprised at the inconsequential position to which he relegated the “biological father”. He concedes “child psychologists are less concerned about natural parents than probably other professional groups are.” We are not inclined to so lightly value the role of the natural father, but find much reason for his evaluation of this particular case.

      Mark has established a father-son relationship with Mr. Bannister, which he apparently had never had with his natural father. He is happy, well adjusted and progressing nicely in his development. We do not believe it is for Mark's best interest to take him out of this stable atmosphere in the face of warnings of dire consequences from an eminent child psychologist and send him to an uncertain future in his father's home. Regardless of our appreciation of the father's love for his child and his desire to have him with him, we do not believe we have the moral right to gamble with this child's future. He should be encouraged in every way possible to know his father. We are sure there are many ways in which Mr. Painter can enrich Mark's life.

      For the reasons stated, we reverse the trial court and remand the case for judgment in accordance herewith.

      Reversed and remanded.

      All Justices concur except THORNTON, J., who concurs in result.

      Court Costs of Divorce: Inability to Pay: Boddie v. Connecticut (1971)

      Editor's note: The Connecticut Supreme Court held that “given the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a state from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” Access to legal remedy is a common concern of legal reform. In this case, the Supreme Court was presented with a complaint by appellants whose ability to file for divorce was constrained by the required court costs and fees for process servers. The court considers the complaint in light of the right to due process, normally discussed in terms of defendants' rights, and the fundamental importance of marriage (and thus divorce) in American society. The dissenting opinion is one of the last authored by Justice Hugo Black, a President Franklin D. Roosevelt appointee and one of the longest-serving justices, who retired after the summer.

      Boddie v. Connecticut, 401 US 371 – Supreme Court 1971

      401 U.S. 371 (1971)

      BODDIE ET AL.

      v.

      CONNECTICUT ET AL.

      No. 27.

      Supreme Court of United States.

      Argued December 8, 1969

      Reargued November 17, 1970

      Decided March 2, 1971

      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT.

      Arthur B. LaFrance reargued the cause and filed briefs for appellants.

      Raymond J. Cannon, Assistant Attorney General of Connecticut, reargued the cause for appellees. With him on the brief were Robert K. Killian, Attorney General, and William S. Kaplan.

      Allan Ashman filed a brief for the National Legal Aid and Defender Association as amicus curiae urging reversal.

      Briefs of amici curiae urging affirmance were filed by Francis B. Burch, Attorney General of Maryland, and J. Michael McWilliams, Assistant Attorney General, joined by George F. Kugler, Jr., Attorney General of New Jersey, and Stephen Skillman, Assistant Attorney General, and by the following Attorneys General: David P. Buckson of Delaware, Jack P. F. Gremillion of Louisiana, Clarence A. H. Meyer of Nebraska, Harvey Dickerson of Nevada, Helgi Johanneson of North Dakota, and Lee Johnson of Oregon.

      MR. JUSTICE HARLAN delivered the opinion of the Court.

      Appellants, welfare recipients residing in the State of Connecticut, brought this action in the Federal District Court for the District of Connecticut on behalf of themselves and others similarly situated, challenging, as applied to them, certain state procedures for the commencement of litigation, including requirements for payment of court fees and costs for service of process, that restrict their access to the courts in their effort to bring an action for divorce.

      It appears from the briefs and oral argument that the average cost to a litigant for bringing an action for divorce is $60. Section 52–259 of the Connecticut General Statutes provides: “There shall be paid to the clerks of the supreme court or the superior court, for entering each civil cause, forty-five dollars ….” An additional $15 is usually required for the service of process by the sheriff, although as much as $40 or $50 may be necessary where notice must be accomplished by publication.[1]

      There is no dispute as to the inability of the named appellants in the present case to pay either the court fees required by statute or the cost incurred for the service of process. The affidavits in the record establish that appellants' welfare income in each instance barely suffices to meet the costs of the daily essentials of life and includes no allotment that could be budgeted for the expense to gain access to the courts in order to obtain a divorce. Also undisputed is appellants' “good faith” in seeking a divorce.

      Assuming, as we must on this motion to dismiss the complaint, the truth of the undisputed allegations made by the appellants, it appears that they were unsuccessful in their attempt to bring their divorce actions in the Connecticut courts, simply by reason of their indigency. The clerk of the Superior Court returned their papers “on the ground that he could not accept them until an entry fee had been paid.” App. 8–9. Subsequent efforts to obtain a judicial waiver of the fee requirement and to have the court effect service of process were to no avail. Id., at 9.

      Appellants thereafter commenced this action in the Federal District Court seeking a judgment declaring that Connecticut's statute and service of process provisions, “requiring payment of court fees and expenses as a condition precedent to obtaining court relief [are] unconstitutional [as] applied to these indigent [appellants] and all other members of the class which they represent.” As further relief, appellants requested the entry of an injunction ordering the appropriate officials to permit them “to proceed with their divorce actions without payment of fees and costs.” A three-judge court was convened pursuant to 28 U. S. C. § 2281, and on July 16, 1968, that court concluded that “a state [may] limit access to its civil courts and particularly in this instance, to its divorce courts, by the requirement of a filing fee or other fees which effectively bar persons on relief from commencing actions therein.” 286 F. Supp. 968, 972.

      We noted probable jurisdiction, 395 U. S. 974 (1969). The case was heard at the 1969 Term and thereafter was set for reargument at the present Term. 399 U. S. 922 (1970). We now reverse. [2] Our conclusion is that, given the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.

      I

      At its core, the right to due process reflects a fundamental value in our American constitutional system. Our understanding of that value is the basis upon which we have resolved this case.

      Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a “legal system,” social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society. Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the “state of nature.”

      American society, of course, bottoms its systematic definition of individual rights and duties, as well as its machinery for dispute settlement, not on custom or the will of strategically placed individuals, but on the common-law model. It is to courts, or other quasi-judicial official bodies, that we ultimately look for the implementation of a regularized, orderly process of dispute settlement. Within this framework, those who wrote our original Constitution, in the Fifth Amendment, and later those who drafted the Fourteenth Amendment, recognized the centrality of the concept of due process in the operation of this system. Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State's monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just. It is upon this premise that this Court has through years of adjudication put flesh upon the due process principle.

      Such litigation has, however, typically involved rights of defendants—not, as here, persons seeking access to the judicial process in the first instance. This is because our society has been so structured that resort to the courts is not usually the only available, legitimate means of resolving private disputes. Indeed, private structuring of individual relationships and repair of their breach is largely encouraged in American life, subject only to the caveat that the formal judicial process, if resorted to, is paramount. Thus, this Court has seldom been asked to view access to the courts as an element of due process. The legitimacy of the State's monopoly over techniques of final dispute settlement, even where some are denied access to its use, stands unimpaired where recognized, effective alternatives for the adjustment of differences remain. But the successful invocation of this governmental power by plaintiffs has often created serious problems for defendants' rights. For at that point, the judicial proceeding becomes the only effective means of resolving the dispute at hand and denial of a defendant's full access to that process raises grave problems for its legitimacy.

      Recognition of this theoretical framework illuminates the precise issue presented in this case. As this Court on more than one occasion has recognized, marriage involves interests of basic importance in our society. See, e. g., Loving v. Virginia, 388 U. S. 1 (1967); Skinner v. Oklahoma, 316 U. S. 535 (1942); Meyer v. Nebraska, 262 U. S. 390 (1923). It is not surprising, then, that the States have seen fit to oversee many aspects of that institution. Without a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts, for example, but we are unaware of any jurisdiction where private citizens may covenant for or dissolve marriages without state approval. Even where all substantive requirements are concededly met, we know of no instance where two consenting adults may divorce and mutually liberate themselves from the constraints of legal obligations that go with marriage, and more fundamentally the prohibition against remarriage, without invoking the State's judicial machinery.

      Thus, although they assert here due process rights as would-be plaintiffs, we think appellants' plight, because resort to the state courts is the only avenue to dissolution of their marriages, is akin to that of defendants faced with exclusion from the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court. For both groups this process is not only the paramount dispute-settlement technique, but, in fact, the only available one. In this posture we think that this appeal is properly to be resolved in light of the principles enunciated in our due process decisions that delimit rights of defendants compelled to litigate their differences in the judicial forum.

      II

      These due process decisions, representing over a hundred years of effort by this Court to give concrete embodiment to this concept, provide, we think, complete vindication for appellants' contentions. In particular, precedent has firmly embedded in our due process jurisprudence two important principles upon whose application we rest our decision in the case before us.

      A

      Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doctrine that “[w]herever one is assailed in his person or his property, there he may defend,” Windsor v. McVeigh, 93 U. S. 274, 277 (1876). See Baldwin v. Hale, 1 Wall. 223 (1864); Hovey v. Elliott, 167 U. S. 409 (1897). The theme that “due process of law signifies a right to be heard in one's defense,” Hovey v. Elliott, supra, at 417, has continually recurred in the years since Baldwin, Windsor, and Hovey.[3] Although “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause,” as Mr. Justice Jackson wrote for the Court in Mullane v. Central Hanover Tr. Co., 339 U. S. 306 (1950), “there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Id., at 313.

      Due process does not, of course, require that the defendant in every civil case actually have a hearing on the merits. A State, can, for example, enter a default judgment against a defendant who, after adequate notice, fails to make a timely appearance, see Windsor, supra, at 278, or who, without justifiable excuse, violates a procedural rule requiring the production of evidence necessary for orderly adjudication, Hammond Packing Co. v. Arkansas, 212 U. S. 322, 351 (1909). What the Constitution does require is “an opportunity … granted at a meaningful time and in a meaningful manner,” Armstrong v. Manzo, 380 U. S. 545, 552 (1965) (emphasis added), “for [a] hearing appropriate to the nature of the case,” Mullane v. Central Hanover Tr. Co., supra, at 313. The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.[4] That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest,[5] except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event. [6] In short, “within the limits of practicability,” id., at 318, a State must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause.

      B

      Our cases further establish that a statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond question. Thus, in cases involving religious freedom, free speech or assembly, this Court has often held that a valid statute was unconstitutionally applied in particular circumstances because it interfered with an individual's exercise of those rights.[7]

      No less than these rights, the right to a meaningful opportunity to be heard within the limits of practicality, must be protected against denial by particular laws that operate to jeopardize it for particular individuals. See Mullane v. Central Hanover Tr. Co., supra; Covey v. Town of Somers, 351 U. S. 141 (1956).

      In Mullane this Court held that the statutory provision for notice by publication in a local newspaper, although sufficient as to beneficiaries of a trust whose interests or addresses were unknown to the trustee, was not sufficient notice under the Due Process Clause for known beneficiaries. Similarly, Covey held that notice by publication in a foreclosure action, even though sufficient to provide a normal person with an opportunity for a hearing, was not sufficient where the defendant was a known incompetent. The Court expressly rejected an argument that “the Fourteenth Amendment does not require the State to take measures in giving notice to an incompetent beyond those deemed sufficient in the case of the ordinary taxpayer.” Id., at 146.

      Just as a generally valid notice procedure may fail to satisfy due process because of the circumstances of the defendant, so too a cost requirement, valid on its face, may offend due process because it operates to foreclose a particular party's opportunity to be heard. The State's obligations under the Fourteenth Amendment are not simply generalized ones; rather, the State owes to each individual that process which, in light of the values of a free society, can be characterized as due.

      III

      Drawing upon the principles established by the cases just canvassed, we conclude that the State's refusal to admit these appellants to its courts, the sole means in Connecticut for obtaining a divorce, must be regarded as the equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages, and, in the absence of a sufficient countervailing justification for the State's action, a denial of due process.[8]

      The arguments for this kind of fee and cost requirement are that the State's interest in the prevention of frivolous litigation is substantial, its use of court fees and process costs to allocate scarce resources is rational, and its balance between the defendant's right to notice and the plaintiff's right to access is reasonable.

      In our opinion, none of these considerations is sufficient to override the interest of these plaintiff-appellants in having access to the only avenue open for dissolving their allegedly untenable marriages. Not only is there no necessary connection between a litigant's assets and the seriousness of his motives in bringing suit,[9] but it is here beyond present dispute that appellants bring these actions in good faith. Moreover, other alternatives exist to fees and cost requirements as a means for conserving the time of courts and protecting parties from frivolous litigation, such as penalties for false pleadings or affidavits, and actions for malicious prosecution or abuse of process, to mention only a few. In the same vein we think that reliable alternatives exist to service of process by a state-paid sheriff if the State is unwilling to assume the cost of official service. This is perforce true of service by publication which is the method of notice least calculated to bring to a potential defendant's attention the pendency of judicial proceedings. See Mullane v. CentralHanover Tr. Co., supra. We think in this case service at defendant's last known address by mail and posted notice is equally effective as publication in a newspaper.

      We are thus left to evaluate the State's asserted interest in its fee and cost requirements as a mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U. S. 12 (1956). In Griffin it was the requirement of a transcript beyond the means of the indigent that blocked access to the judicial process. While in Griffin the transcript could be waived as a convenient but not necessary predicate to court access, here the State invariably imposes the costs as a measure of allocating its judicial resources. Surely, then, the rationale of Griffin covers this case.

      IV

      In concluding that the Due Process Clause of the Fourteenth Amendment requires that these appellants be afforded an opportunity to go into court to obtain a divorce, we wish to re-emphasize that we go no further than necessary to dispose of the case before us, a case where the bona fides of both appellants' indigency and desire for divorce are here beyond dispute. We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship. The requirement that these appellants resort to the judicial process is entirely a state-created matter. Thus we hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.

      Reversed.

      MR. JUSTICE DOUGLAS, concurring in the result.

      I believe this case should be decided upon the principles developed in the line of cases marked by Griffin v. Illinois, 351 U. S. 12. There we considered a state law which denied persons convicted of a crime full appellate review if they were unable to pay for a transcript of the trial. MR. JUSTICE BLACK's opinion announcing the judgment of the Court stated:

      “Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in the administration of its criminal law. There can be no equal justice where the kind of a trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” Id., at 19.

      Griffin has had a sturdy growth. “Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.” Roberts v. LaVallee, 389 U. S. 40, 42. See also Williams v. Oklahoma City, 395 U. S. 458; Long v. District Court of Iowa, 385 U. S. 192; Draper v. Washington, 372 U. S. 487. But Griffin has not been limited to securing a record for indigents who appeal their convictions. If the more affluent have counsel on appeal, then counsel for indigents must be provided on appeal of a criminal conviction. Douglas v. California, 372 U. S. 353. The tie to Griffin was explicit. “In either case [Griffin or Douglas] the evil is the same: discrimination against the indigent.” Id., at 355.

      In Burns v. Ohio, 360 U. S. 252, we invalidated a procedure whereby cases within the jurisdiction of the state supreme court would not be considered if a person could not pay the filing fee. In Smith v. Bennett, 365 U. S. 708, we held that requiring indigents to pay filing fees before a writ of habeas corpus could be considered in state court was invalid under the Equal Protection Clause. Here Connecticut has provided requirements for married couples to obtain divorces and because of filing fees and service of process one of the requirements is having the necessary money. The more affluent can obtain a divorce; the indigent cannot. This situation is comparable to Burns v. Ohio, and Smith v. Bennett.

      The Due Process Clause on which the Court relies has proven very elastic in the hands of judges. “The doctrine that prevailed in Lochner [v. New York, 198 U. S. 45], Coppage [v. Kansas, 236 U. S. 1], Adkins [v. Children's Hospital, 261 U. S. 525], [Jay] Burns [Baking Co. v. Bryan, 264 U. S. 504], and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded.” Ferguson v. Skrupa, 372 U. S. 726, 730. I would not invite its revival.

      Whatever residual element of substantive law the Due Process Clause may still have (Thompson v. Louisville, 362 U. S. 199), it essentially regulates procedure. Sniadach v. Family Finance Corp., 395 U. S. 337; Wisconsin v. Constantineau, 400 U. S. 433. The Court today puts “flesh” upon the Due Process Clause by concluding that marriage and its dissolution are so important that an unhappy couple who are indigent should have access to the divorce courts free of charge. Fishing may be equally important to some communities. May an indigent be excused if he does not obtain a license which requires payment of money that he does not have? How about a requirement of an onerous bond to prevent summary eviction from rented property? The affluent can put up the bond, though the indigent may not be able to do so. See Williams v. Shaffer, 385 U. S. 1037. Is housing less important to the mucilage holding society together than marriage? The examples could be multiplied. I do not see the length of the road we must follow if we accept my Brother HARLAN'S invitation. The question historically has been whether the right claimed is “of the very essence of a scheme of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325. That makes the test highly subjective and dependent on the idiosyncrasies of individual judges as Lochner, Coppage, and Adkins illustrate.

      The reach of the Equal Protection Clause is not definable with mathematical precision. But in spite of doubts by some,[*] as it has been construed, rather definite guidelines have been developed: race is one (Strauder v. West Virginia, 100 U. S. 303; McLaughlin v. Florida, 379 U. S. 184); alienage is another (Takahashi v. Fish & Game Comm'n, 334 U. S. 410); religion is another (Sherbert v. Verner, 374 U. S. 398); poverty is still another (Griffin v. Illinois, supra); and class or caste yet another (Skinner v. Oklahoma, 316 U. S. 535).

      The power of the States over marriage and divorce is, of course, complete except as limited by specific constitutional provisions. But could a State deny divorces to domiciliaries who were Negroes and grant them to whites? Deny them to resident aliens and grant them to citizens? Deny them to Catholics and grant them to Protestants? Deny them to those convicted of larceny and grant them to those convicted of embezzlement?

      Here the invidious discrimination is based on one of the guidelines: poverty.

      An invidious discrimination based on poverty is adequate for this case. While Connecticut has provided a procedure for severing the bonds of marriage, a person can meet every requirement save court fees or the cost of service of process and be denied a divorce. Connecticut says in its brief that this is justified because “the State does not favor divorces; and only permits a divorce to be granted when those conditions are found to exist, in respect to one or the other of the named parties, which seem to the legislature to make it probable that the interests of society will be better served and that parties will be happier, and so the better citizens, separate, than if compelled to remain together.”

      Thus, under Connecticut law divorces may be denied or granted solely on the basis of wealth. Just as denying further judicial review in Burns and Smith, appellate counsel in Douglas, and a transcript in Griffin created an invidious distinction based on wealth, so, too, does making the grant or denial of a divorce to turn on the wealth of the parties. Affluence does not pass muster under the Equal Protection Clause for determining who must remain married and who shall be allowed to separate.

      MR. JUSTICE BRENNAN, concurring in part.

      I join the Court's opinion to the extent that it holds that Connecticut denies procedural due process in denying the indigent appellants access to its courts for the sole reason that they cannot pay a required fee. “[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886, 895 (1961); Goldberg v. Kelly, 397 U. S. 254, 263 (1970). When a State's interest in imposing a fee requirement on an indigent is compared to the indigent's interest in being heard, it is clear that the latter is the weightier. It is an unjustifiable denial of a hearing, and therefore a denial of due process, to close the courts to an indigent on the ground of nonpayment of a fee.

      But I cannot join the Court's opinion insofar as today's holding is made to depend upon the factor that only the State can grant a divorce and that an indigent would be locked into a marriage if unable to pay the fees required to obtain a divorce. A State has an ultimate monopoly of all judicial process and attendant enforcement machinery. As a practical matter, if disputes cannot be successfully settled between the parties, the court system is usually “the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court.” Ante, at 376–377. In this case, the Court holds that Connecticut's unyielding fee requirement violates the Due Process Clause by denying appellants “an opportunity to be heard upon their claimed right to a dissolution of their marriages” without a sufficient countervailing justification. Ante, at 380. I see no constitutional distinction between appellants' attempt to enforce this state statutory right and an attempt to vindicate any other right arising under federal or state law. If fee requirements close the courts to an indigent he can no more invoke the aid of the courts for other forms of relief than he can escape the legal incidents of a marriage. The right to be heard in some way at some time extends to all proceedings entertained by courts. The possible distinctions suggested by the Court today will not withstand analysis.

      In addition, this case presents a classic problem of equal protection of the laws. The question that the Court treats exclusively as one of due process inevitably implicates considerations of both due process and equal protection. Certainly, there is at issue the denial of a hearing, a matter for analysis under the Due Process Clause. But Connecticut does not deny a hearing to everyone in these circumstances; it denies it only to people who fail to pay certain fees. The validity of this partial denial, or differentiation in treatment, can be tested as well under the Equal Protection Clause.

      In Griffin v. Illinois, 351 U. S. 12 (1956), we held under the Equal Protection Clause as well as the Due Process Clause that a State may not deny a free transcript to an indigent, where the transcript is necessary for a direct appeal from his conviction. Subsequently, we have applied and extended that principle in numerous criminal cases. See, e. g., Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U. S. 214 (1958); Burns v. Ohio, 360 U. S. 252 (1959); Smith v. Bennett, 365 U. S. 708 (1961); Coppedge v. United States, 369 U. S. 438 (1962); Lane v. Brown, 372 U. S. 477 (1963); Draper v. Washington, 372 U. S. 487 (1963); Rinaldi v. Yeager, 384 U. S. 305 (1966); Long v. District Court of Iowa, 385 U. S. 192 (1966); Roberts v. LaVallee, 389 U. S. 40 (1967); Gardner v. California, 393 U. S. 367 (1969). The rationale of Griffin covers the present case. Courts are the central dispute-settling institutions in our society. They are bound to do equal justice under law, to rich and poor alike. They fail to perform their function in accordance with the Equal Protection Clause if they shut their doors to indigent plaintiffs altogether. Where money determines not merely “the kind of trial a man gets,” Griffin v. Illinois, supra, at 19, but whether he gets into court at all, the great principle of equal protection becomes a mockery. A State may not make its judicial processes available to some but deny them to others simply because they cannot pay a fee. Cf. Harper v. Virginia Board of Elections, 383 U. S. 663 (1966). In my view, Connecticut's fee requirement, as applied to an indigent, is a denial of equal protection.

      MR. JUSTICE BLACK, dissenting.

      This is a strange case and a strange holding. Absent some specific federal constitutional or statutory provision, marriage in this country is completely under state control, and so is divorce. When the first settlers arrived here the power to grant divorces in Great Britain was not vested in that country's courts but in its Parliament. And as recently as 1888 this Court in Maynard v. Hill, 125 U. S. 190, upheld a divorce granted by the Legislature of the Territory of Oregon. Since that time the power of state legislatures to grant divorces or vest that power in their courts seems not to have been questioned. It is not by accident that marriage and divorce have always been considered to be under state control. The institution of marriage is of peculiar importance to the people of the States. It is within the States that they live and vote and rear their children under laws passed by their elected representatives. The States provide for the stability of their social order, for the good morals of all their citizens, and for the needs of children from broken homes. The States, therefore, have particular interests in the kinds of laws regulating their citizens when they enter into, maintain, and dissolve marriages. The power of the States over marriage and divorce is complete except as limited by specific constitutional provisions. Loving v. Virginia, 388 U. S. 1, 7–12 (1967).

      The Court here holds, however, that the State of Connecticut has so little control over marriages and divorces of its own citizens that it is without power to charge them practically nominal initial court costs when they are without ready money to put up those costs. The Court holds that the state law requiring payment of costs is barred by the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. Two members of the majority believe that the Equal Protection Clause also applies. I think the Connecticut court costs law is barred by neither of those clauses.

      It is true, as the majority points out, that the Court did hold in Griffin v. Illinois, 351 U. S. 12 (1956), that indigent defendants in criminal cases must be afforded the same right to appeal their convictions as is afforded to a defendant who has ample funds to pay his own costs. But in Griffin the Court studiously and carefully refrained from saying one word or one sentence suggesting that the rule there announced to control rights of criminal defendants would control in the quite different field of civil cases. And there are strong reasons for distinguishing between the two types of cases.

      Criminal defendants are brought into court by the State or Federal Government to defend themselves against charges of crime. They go into court knowing that they may be convicted, and condemned to lose their lives, their liberty, or their property, as a penalty for their crimes. Because of this great governmental power the United States Constitution has provided special protections for people charged with crime. They cannot be convicted under bills of attainder or ex post facto laws. And numerous provisions of the Bill of Rights—the right to counsel, the right to be free from coerced confessions, and other rights—shield defendants in state courts as well as federal courts. See, e. g., Benton v. Maryland, 395 U. S. 784 (1969); Duncan v. Louisiana, 391 U. S. 145 (1968); Malloy v. Hogan, 378 U. S. 1 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963). With all of these protections safeguarding defendants charged by government with crime, we quite naturally and quite properly held in Griffin that the Due Process and Equal Protection Clauses both barred any discrimination in criminal trials against poor defendants who are unable to defend themselves against the State. Had we not so held we would have been unfaithful to the explicit commands of the Bill of Rights, designed to wrap the protections of the Constitution around all defendants upon whom the mighty powers of government are hurled to punish for crime. Civil lawsuits, however, are not like government prosecutions for crime. Civil courts are set up by government to give people who have quarrels with their neighbors the chance to use a neutral governmental agency to adjust their differences. In such cases the government is not usually involved as a party, and there is no deprivation of life, liberty, or property as punishment for crime. Our Federal Constitution, therefore, does not place such private disputes on the same high level as it places criminal trials and punishment. There is consequently no necessity, no reason, why government should in civil trials be hampered or handicapped by the strict and rigid due process rules the Constitution has provided to protect people charged with crime.

      This distinction between civil and criminal proceedings is implicit in Cohen v. Beneficial Loan Corp., 337 U. S. 541 (1949), where we held that a statute requiring some, but not all, plaintiffs in stockholder derivative actions to post a bond did not violate the Due Process or the Equal Protection Clause. The Cohen case is indistinguishable from the one before us. In Cohen, as here, the statute applied to plaintiffs. In both situations the legal relationships involved are creatures of the State, extensively governed by state law. The effect of both statutes may be to deter frivolous or ill-considered suits, and in both instances the State has a considerable interest in the prevention of such suits, which might harm the very relationship the State created and fostered. Finally, the effect of both statutes may be to close the state courts entirely to certain plaintiffs, a result the Court explicitly accepted in Cohen. See id., at 552. I believe the present case should be controlled by the Court's thorough opinion in Cohen.

      The Court's suggested distinction of Cohen on the ground that the Court there dealt only with the validity of the statute on its face ignores the following pertinent language:

      “It is urged that such a requirement will foreclose resort by most stockholders to the only available judicial remedy for the protection of their rights. Of course, to require security for the payment of any kind of costs, or the necessity for bearing any kind of expense of litigation, has a deterring effect. But we deal with power, not wisdom; and we think, notwithstanding this tendency, it is within the power of a state to close its courts to this type of litigation if the condition of reasonable security is not met.” Id., at 552. (Emphasis added.)

      Rather, Cohen can only be distinguished on the ground that it involved a stockholders' suit, while this case involves marriage, an interest “of basic importance in our society.” Thus the Court's opinion appears to rest solely on a philosophy that any law violates due process if it is unreasonable, arbitrary, indecent, deviates from the fundamental, is shocking to the conscience, or fails to meet other tests composed of similar words or phrases equally lacking in any possible constitutional precision. These concepts, of course, mark no constitutional boundaries and cannot possibly depend upon anything but the belief of particular judges, at particular times, concerning particular interests which those judges have divined to be of “basic importance.”

      I do not believe the wise men who sought to draw a written constitution to protect the people from governmental harassment and oppression, who feared alike the king and the king's judges, would have used any such words or phrases. Such unbounded authority in any group of politically appointed or elected judges would unquestionably be sufficient to classify our Nation as a government of men, not the government of laws of which we boast. With a “shock the conscience” test of constitutionality, citizens must guess what is the law, guess what a majority of nine judges will believe fair and reasonable. Such a test wilfully throws away the certainty and security that lies in a written constitution, one that does not alter with a judge's health, belief, or his politics. I believe the only way to steer this country towards its great destiny is to follow what our Constitution says, not what judges think it should have said.

      For these reasons I am constrained to repeat what I said in dissent in Williams v. North Carolina, 325 U. S. 226, 271–274 (1945):

      I cannot agree to this latest expansion of federal power and the consequent diminution of state power over marriage and marriage dissolution which the Court derives from adding a new content to the Due Process Clause. The elasticity of that clause necessary to justify this holding is found, I suppose, in the notion that it was intended to give this Court unlimited authority to supervise all assertions of state and federal power to see that they comport with our ideas of what are ‘civilized standards of law….

      This perhaps is in keeping with the idea that the Due Process Clause is a blank sheet of paper provided for courts to make changes in the Constitution and the Bill of Rights in accordance with their ideas of civilization's demands. I should leave the power over divorces in the states.

      See also In re Winship, 397 U. S. 358, 377 (1970) (BLACK, J., dissenting).

      One more thought about the Due Process and Equal Protection Clauses: neither, in my judgment, justifies judges in trying to make our Constitution fit the times, or hold laws constitutional or not on the basis of a judge's sense of fairness. The Equal Protection Clause is no more appropriate a vehicle for the “shock the conscience” test than is the Due Process Clause. See, e. g., my dissent in Harper v. Virginia Board of Elections, 383 U. S. 663, 675–680 (1966). The rules set out in the Constitution itself provide what is governmentally fair and what is not. Neither due process nor equal protection permits state laws to be invalidated on any such nonconstitutional standard as a judge's personal view of fairness. The people and their elected representatives, not judges, are constitutionally vested with the power to amend the Constitution. Judges should not usurp that power in order to put over their own views. Accordingly, I would affirm this case.

      [1] App. 9. The dollar figures are averages taken from the undisputed allegations of the complaint. The particular fee the sheriff receives from the plaintiff for service of process in any one case depends on the distance he must travel to effectuate service of process. Conn. Gen. Stat. Rev. § 52–261 (1968).

      [2] Following colloquy at the oral reargument as to the possible availability of public or private funds to enable plaintiffs-appellants to defray the expense requirements at issue in this case, the parties submitted further papers on this score. Nothing in these materials would justify our declining to adjudicate the constitutional question squarely presented by this record.

      [3] See Goldberg v. Kelly, 397 U. S. 254 (1970); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Armstrong v. Manzo, 380 U. S. 545 (1965); Schroeder v. New York, 371 U. S. 208, 212 (1962); Best v. Humboldt Placer Mining Co., 371 U. S. 334, 338 (1963); Covey v. Town of Somers, 351 U. S. 141 (1956); Mullane v. Central Hanover Tr. Co., 339 U. S. 306 (1950); Anderson Nat. Bank v. Luckett, 321 U. S. 233, 246 (1944); Opp Cotton Mills v. Administrator, 312 U. S. 126, 152–153 (1941); Morgan v. United States, 304 U. S. 1 (1938); United States v. Illinois Central R. Co., 291 U. S. 457, 463 (1934); Brinkerhoff-Fairs Trust & Savings Co. v. Hill, 281 U. S. 673 (1930); Coe v. Armour Fertilizer Works, 237 U. S. 413, 423 (1915); Londoner v. Denver, 210 U. S. 373, 385–386 (1908); Louisville & Nashville R. Co. v. Schmidt, 177 U. S. 230, 236 (1900).

      [4] Compare Goldberg v. Kelly, supra, with In re Winship, 397 U. S. 358 (1970). See also Bowles v.

      Willingham, 321 U. S. 503, 520–521 (1944).

      [5] Goldberg v. Kelly, supra; Sniadach v. Family Finance Corp., supra; Opp Cotton Mills v. Administrator, supra, at 152–153; United States v. Illinois Central R. Co., supra, at 463; Coe v. Armour Fertilizer Works, supra.

      [6] Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886 (1961); Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); Fahey v. Mallonee, 332 U. S. 245 (1947); Bowles v. Willingham, supra; Yakus v. United States, 321 U. S. 414 (1944).

      [7] E. g., Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296 (1940); Bates v. Little Rock, 361 U. S. 516, 527 (1960); Sherbert v. Verner, 374 U. S. 398 (1963).

      [8] At least one court has already recognized the special nature of the divorce action. Justice Sobel in a case like that before us took note of the State's involvement in the marital relationship:

      “Marriage is clearly marked with the public interest. In this State, a marriage cannot be dissolved except by ‘due judicial proceedings.…’ We have erected by statute a money hurdle to such dissolution by requiring in many circumstances the service of a summons by publication …. This hurdle is an effective barrier to [plaintiff's] access to the courts. The loss of access to the courts in an action for divorce is a right of substantial magnitude when only through the courts may redress or relief be obtained.” Jeffreys v. Jeffreys, 58 Misc. 2d 1045, 1056, 296 N. Y. S. 2d 74, 87 (1968).

      See also Brown v. Chastain, 416 F. 2d 1012, 1014 (CA5 1969) (Rives, J., dissenting).

      [9] We think Cohen v. Beneficial Loan Corp., 337 U. S. 541 (1949), has no bearing on this case. Differences between divorce actions and derivative actions aside, unlike Cohen, where we considered merely a statute on its face, the application of this statute here operates to cut off entirely access to the courts.

      [*] See Karst, Invidious Discrimination, 16 U. C. L. A. L. Rev. 716 (1969).

      Cost of Education for Children: Court Ordered: Cleveland v. Cleveland (1973)

      Editor's note: A Connecticut court directs parents to pay for the cost of children's education based on financial ability of parents, schools prior to the divorce, and child's needs and welfare. While child custody and support agreements arranged during divorce proceedings are generally specific as to the amount of child support awarded, they may be vague—as in this couple's original agreement—when it comes to stipulating a spouse's contribution to the children's education expenses. In this case, the ex-husband requested that the nonspecific amount of support required by the original agreement be replaced by a specific sum, in part because of his disapproval of the private schools to which his ex-wife sent their children without his consultation. The decision of the state Supreme Court emphasizes the problems that can result when divorced parents disagree about parenting decisions.

      165 Conn. 95 (1973)

      CYNTHIA B. CLEVELAND

      v.

      JOHN L. CLEVELAND, JR.

      Supreme Court of Connecticut.

      Argued May 1, 1973.

      Decided June 5, 1973.

      HOUSE, C. J., SHAPIRO, LOISELLE, MACDONALD and BOGDANSKI, JS.

      Ralph P. Dupont, with whom, on the brief, was Antoinette L. Dupont, for the appellant (plaintiff).

      Frederick L. Comley, with whom, on the brief, was Robert J. Cooney, for the appellee (defendant).

      BOGDANSKI, J.

      The plaintiff has taken this appeal from the action of the Superior Court in deleting an educational expense provision from a divorce decree dated December 12, 1967, and substituting therefor a new order of support. The deleted provision had required the defendant “to pay the expense of board, room and tuition of each such child in boarding school or college, provided that he is consulted with and approves those educational institutions before matriculation.” The new order of support directed the defendant to pay the plaintiff $1500 per year for each child and all medical and dental bills exceeding $100 for any one accident or illness for each child.

      The plaintiff directs several assignments of error at the court's finding. She contends that the court failed to add twenty-four paragraphs to the finding which, she claims, were either admitted or undisputed. No additions to the finding are warranted, however, because some of the proposed additions are merely detailed restatements of facts already in the finding and the rest either are immaterial or are not undisputed. Malarney v. Peterson, 159 Conn. 342, 344, 269 A.2d 274; Brauer v. Freccia, 159 Conn. 289, 290, 268 A.2d 645; Bent v. Torell, 139 Conn. 744, 748, 97 A.2d 270. The plaintiff requests also the deletion from the finding of four paragraphs or portions thereof on the ground that they were found without evidence. As the evidence printed in the appendix to the defendant's brief amply supports these findings, no deletions can be made. Practice Book § 718. The plaintiff's final attack on the finding seeks correction or deletion of six paragraphs on the ground that they are found in language of doubtful meaning. In fact the court's language in these paragraphs appears to be clear and unambiguous. As such corrections are rarely to be made and never for the mere purpose of substituting language of counsel for that of the court, this claim must be denied. See Practice Book § 628. The plaintiff's remaining assignments of error challenge the court's conclusions and its rulings on her claims of law.

      A brief review of the history of this case must precede any discussion of the issues raised on this appeal. On December 12, 1967, the plaintiff was granted a decree of divorce from the defendant and was given the custody of their four minor children subject to certain visitation rights granted to the defendant. The judgment of divorce ordered the defendant to pay for the board, room and tuition of each child in boarding school or college, provided that the defendant, on consultation, approved the educational institutions before matriculation. The judgment also required the defendant to make support payments of $1500 per year for each child. On August 13, 1969, on the plaintiff's motion, the Superior Court modified the foregoing judgment to require the defendant (1) to pay for the children's educational expenses in boarding school and college provided that he receive notice three weeks in advance of any child's change of schools, and (2) to pay a reasonable sum for the support of the children. From this modification the defendant appealed to this court, which set aside the orders appealed from and remanded the case to the trial court to determine whether a modification of the judgment was required and, if so, to modify the judgment accordingly. Cleveland v. Cleveland, 161 Conn. 452, 461–62, 289 A.2d 909. We suggested also that the lack of specificity in the trial court's order requiring the defendant to pay a “reasonable sum” for the children's support might cause difficulty for both the court and the parties, and we directed that the court reconsider the amount of support payments. Id., 461.

      On the remand to the Superior Court (Mulvey, J.), the defendant also moved for a modification, alleging that there had been a substantial change in the circumstances of the parties since the judgment of December, 1967, and that the plaintiff had refused to consult with him concerning the choice of schools for the children.

      In addition to the facts previously recited, the trial court on remand made these findings: During the school year 1966–67, two of the Cleveland children, David and Thomas, attended public schools and another son, John, attended a boarding school. After the defendant had expressed strong feelings to the contrary, and without further consultation with him, the plaintiff enrolled David and Thomas in private schools for the year 1967–68. In 1969–70, both children were again transferred to different private schools by the plaintiff without any consultation with the defendant, who wished to enroll Thomas in a public school and disapproved of the school to which David was sent. The plaintiff transferred John from one private school to another in 1968–69, against the stated wishes of the defendant, and she kept John there, without meaningful discussion or consultation with the defendant, for both 1969–70 and 1970–71, despite the defendant's wish that he attend a different school. Similar disagreements between the parties continued unabated up to the time of trial. The trial court then concluded that both the plaintiff and the defendant were sincerely concerned with the proper education of their children, although they held conflicting beliefs as to what schools would be most appropriate for each child at any particular time, and that the plaintiff had neither consulted meaningfully with the defendant concerning the children's educational programs nor obtained his approval prior to enrolling the children in various private schools. The court concluded further that the defendant had acted reasonably and in good faith concerning his children's education and that the differing views of the parties generated a bitterness and arrogance of opinion that resulted in uncertainty in the children's educational plans, thus making unworkable that provision of the 1967 judgment which obligated the defendant, on prior consultation and approval, to pay the children's boarding school and college expenses. On the basis of the foregoing conclusions, the court determined that there had been a material change in circumstances after the 1967 judgment. The court ordered the deletion of the unworkable educational expense provision from the judgment and ordered the defendant to make support payments in the sum of $1,500 per year for each child.

      In her assignments of error the plaintiff contends that the facts found do not support the modification because there is no finding of a material change in the parties' financial circumstances. She further contends that the facts do not support the modification with respect to the private school education of the children because there is no finding of a material change of circumstances as a basis for such a modification. Her final claim is, in essence, that the court failed to follow the directions of this court on remand. These claims lack merit.

      Under § 46–26 of the General Statutes, after divorce the obligation to support a minor child or children of the marriage rests on both parents according to their respective abilities. Yates v. Yates, 155 Conn. 544, 547, 235 A.2d 656; White v. White, 138 Conn. 1, 5, 81 A.2d 450. The amount of an award for the support of children incident to a divorce is a matter within the sound discretion of the court and will not be disturbed unless the discretion appears to have been abused. Fowler v. Fowler, 156 Conn. 569, 572, 244 A.2d 375; Riccio v. Riccio, 153 Conn. 317, 319, 216 A.2d 431.

      Section 46–23 of the General Statutes provides: “On any complaint for a divorce, the court may, at any time, make any proper order as to the custody, care and education of the children and may, at any time thereafter, annul or vary such order.” This statute creates an exception to the general rule that a court has no power to open a judgment after the expiration of the term in which it was rendered. Poneleit v. Dudas, 141 Conn. 413, 416, 106 A.2d 479. “To limit the use of the power given to the trial courts by § 46–23 and to give effect to the principle of res judicata, there has developed a rule, which is accepted by this court, that before an order as to custody or support of children may be modified there must have been a material change of circumstances after the order was issued. Tippin v. Tippin, 148 Conn. 1, 3, 166 A.2d 448; Sullivan v. Sullivan, 141 Conn. 235, 239, 104 A.2d 898…. This rule should apply with equal force to modification of the judgment with respect to provisions contained therein relating to the education of minor children.” Cleveland v. Cleveland, 161 Conn. 452, 459–60, 289 A.2d 909.

      Although the trial court concluded that there had been no material change in the financial circumstances of the parties, such circumstances, while important, are not the only factors to be examined in determining whether there has been a material change of circumstances which would warrant modification of the judgment. Cleveland v. Cleveland, supra. The strong and opposing views of the parties regarding the educational programs of their children subject the children to educational uncertainty and could further undermine the stability of their position, a position already damaged by the inability of the parties to maintain their marital status. This adherence by the parties to their conflicting views, with its adverse effect on the children, amply supports the conclusions reached by the trial court that the educational expense provision of the 1967 divorce decree is unworkable and that there has been a material change of circumstances sufficient to warrant a modification of the judgment. Cleveland v. Cleveland, supra.

      The trial court's conclusions are tested by the finding; Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645; and the conclusions reached must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500. We hold that the conclusions reached by the trial court are legally consistent with the facts found, that the court applied the correct rules of law material to the case, and that the court did not act in abuse of its discretion in modifying the judgment.

      There is no error.

      In this opinion the other judges concurred.

      Alimony Award: Wife's Diminished Earning Capacity: Beeh v. Beeh (1974)

      Editor's note: A wife's diminished earning capacity as a result of becoming a homemaker for 16 years was considered in determining an alimony award by a Connecticut court. This Iowa Supreme Court decision greatly reflects its times. The case considered for appeal is a 1972 divorce decree, in which the wife was denied alimony on the basis of equality of the sexes. The Equal Rights Amendment had passed both houses of Congress that same year, though it would fail to be ratified by the states. The court claimed that because of “women's liberation” (quotes sic), there was no need for a man to support his ex-wife. The Supreme Court here disagrees that this was sufficient grounds for the ruling, and agrees with the ex-wife's argument that 16 years as a homemaker had diminished her earning capacity, and that this should be considered; it also disagrees with the trial court's perception that equality has been achieved.

      214 N.W.2d 170 (1974)

      In re the MARRIAGE OF Elizabeth BEEH and Edward Beeh.

      Upon the Petition of Elizabeth BEEH, Appellant,

      and Concerning Edward BEEH, Appellee.

      No. 55888.

      Supreme Court of Iowa.

      January 16, 1974.

      Rehearing Denied February 14, 1974.

      Kersten, Opheim, Carlson & Estes, Fort Dodge, for appellant.

      R. Thomas Price, Fort Dodge, for appellee.

      Considered en banc.

      REYNOLDSON, Justice.

      The trial court in this cause denied alimony to a wife who devoted sixteen and one-half years to the role of full-time homemaker and mother to three children. It grounded its decision largely on the progress of “women's liberation,” sex equality, and the general social and economic emancipation of women. The wife, petitioner Elizabeth Beeh, appeals from this and other provisions of the dissolution decree. We modify in part, reverse in part, and remand with directions.

      Petitioner and respondent were married April 2, 1956. They have three children: Debra, born February 12, 1957; Dianne, born October 15, 1960; and Edward, born November 19, 1964. At time of trial in September 1972 petitioner was 40, the respondent 44.

      When this couple married, petitioner held a bachelor of science degree in nursing and was teaching nursing at the University of Iowa. She abandoned this profession and the couple established a home in Fort Dodge. The only employment outside the home petitioner has since undertaken was lecturing on nursing procedures four hours a day at a Fort Dodge hospital when first married, and later instructing in nursing at the junior college two mornings a week for two semesters in 1966 or 1967, substituting for two weeks in the program in 1970.

      When this couple first met, the respondent, son of a successful Fort Dodge medical doctor, was employed (and has since been continuously employed) by Union Trust & Savings Bank, Fort Dodge, in which the Beeh family owns a major interest. He has been and is on the board of directors of Harcourt Savings Bank. He attended the University of Iowa from 1946 to 1948 and Babsen School of Business in Boston, Massachusetts from 1958 to 1960. Respondent has also taken banking courses at Iowa State University and attended three summer courses at a banking school at Madison, Wisconsin. He has a speech defect. A few years prior to this dissolution respondent underwent a spinal laminectomy involving the removal of a disc at the fourth lumbar level. He has had subsequent pain in the left leg for which he takes exercise therapy. Although this condition has interfered with the performance of his duties at the bank, respondent testified it was not likely it would endanger his employment.

      At time of trial this couple owned a Fort Dodge home valued at $45,000. Respondent's financial statement filed in the dissolution proceeding itemizes stock valued at $47,471.25 and a one-half interest in Beeh Investments, a partnership with his brother. The partnership assets included three farms and a commercial lot in Fort Dodge. The statement valued the respondent's one-half interest at $172,500.

      Respondent's father is deceased. His will created two trusts. The Anne Beeh Trust is a marital deduction trust with assets valued of $325,000. Anne Beeh (testator's spouse, respondent's mother) is the lifetime beneficiary of the income (and permissible principal payments) and may designate in her will who shall ultimately receive the corpus. If she makes no designation, it will pass equally to respondent and his brother under the terms of the “Edward F. Beeh Trust.” The latter trust is for the lifetime of Anne Beeh. Respondent has the right to “sprinkle” the income among Anne Beeh, his brother, himself, his children and the children of his brother. He has never exercised this right. At the death of Anne Beeh, the “Edward F. Beeh Trust” corpus will pass to respondent and his brother equally, in three installments extending over ten years. At present the sole asset of the last-named trust is 4215 shares of Union Trust & Savings Bank stock worth $45 per share, a total of $189.675.

      Respondent and his brother are heirs and potential beneficiaries under any will left by their mother. The record does not reflect her separate assets except her stock valued at $129,700 in Beeh Farms Incorporated, in which she is principal stockholder and respondent and his brother are minority stockholders. Respondent owns life insurance policies on his life in the contract total of $66,000. The beneficiary is his testamentary trust created for the benefit of the children of these parties. The present cash value of this insurance was not established. At least two $10,000 policies are paid up. There are loans totaling $7343.46 outstanding against these policies. Respondent has additional insurance and pension trust benefits relating to his employment.

      Insurance on petitioner's life is a $25,000 New York Life policy carrying a premium of $547 per year and a $2000 Iowa Life policy which she owned when married. Under the Uniform Gift to Minors Act respondent is custodian of the children's stock worth $13,296.61. The children's dividends have been placed in savings accounts. These accounts now total from $1400 to $1200 each. With the exception of several of the insurance policies, a portion of respondent's shares of bank stock, the family car (a 1968 Pontiac), and perhaps some personal items, household equipment and furnishings, the property owned by these parties (all standing in respondent's name except an interest in the house) was obtained by gifts from respondent's father and mother.

      Respondent's income is about $20,000 per year, $8600 from his employment and the balance from investments and fees for managing family property. All of this has been spent for family living and in addition, so respondent claims, about $1500 per year obtained from his mother.

      In his answer filed in district court respondent conceded it was in the children's best interest that they be in the permanent care of petitioner.

      Trial court decreed respondent should pay child support in the sum of $225 per month for each child over 14 years of age, to continue until such child attains the age of 19 years, marries or dies, whichever occurs first, and $175 per month for each child under the age of 14 years.

      Petitioner was awarded no alimony. She was awarded her personal belongings, the household goods and furniture, the 1968 auto, the family home “in lieu of alimony” and the $2000 Iowa Life Insurance policy.

      Respondent was awarded all the other property and was to assume all debts and obligations. He was ordered to pay the costs and to pay petitioner $1500 of her attorney's $4000 claim for fees. Other provisions of the decree are not in issue. Trial court's conclusions of law upon which the decree is based include the following:

      “Recent decisions have been materially changing the philosophy behind the laws pertaining to alimony. No doubt such results from women's liberation activity, Constitutional Amendments and legislation regarding sex equality. * * *

      “It would appear unjust to require alimony payments for a spouse that is clearly able to provide for herself and where any children do not prevent her from being fully emancipated.

      “There has been a recent emancipation of women socially and economically, particularly in the area of employment opportunities. Women are no longer restricted to certain types of jobs, and are entitled under the law to equal pay for equal work.” Upon this appeal petitioner claims trial court improperly disposed of issues relating to alimony, property division, child support, and attorney fees. She asks for an award to pay her attorney fees for this appeal.

      I. Rules of appellate procedure.

      Briefs filed for both parties were excellant. However, in both briefs reference to the record were keyed to the transcript and not to the appendix as required by rule 344(g), Rules of Civil Procedure. The work of this court cannot be accelerated if nine justices must share one transcript. See Wilson-Sinclair Company v. Griggs, 211 N.W.2d 133 (Iowa 1973).

      II. Scope of review.

      Our review is, of course, de novo. Rule 334, R.C.P. The court gives weight to the fact findings of the trial court, but is not bound by them. Rule 344(f) (7), R. C.P.

      A just determination of the issues presented here turns on the facts in the appendix. No two cases are factually alike. Precedents are of little value. In re Marriage of Romig, 207 N.W.2d 780 (Iowa 1973); In re Marriage of Cook, 205 N.W.2d 682 (Iowa 1973).

      III. Child support.

      Petitioner asserts when trial court fixed child support it should not have discriminated between children under age 14 and those 14 and over. She cites as authority one case, Weiland v. Weiland, 255 Iowa 477, 122 N.W.2d 837 (1963). There is nothing in that case which so ties the hand of the trial court in making “such order in relation to the children, property, parties, and the maintenance of the parties as shall be justified.” Section 598.21, The Code. Obviously the court took into consideration, as it could on the facts in this appendix, that as each child attained 14 and started to parochial high school he or she would incur additional tuition charges. It could well have concluded unless economic conditions changed these children, upon reaching high school, would simply require more money for allowances, clothes and activities. We find trial court's decree in this respect entirely justified. See In re Marriage of Romig, supra.

      IV. Alimony.

      Both below and here, petitioner asks for a substantial award of permanent alimony.

      Our above factual recital provides much of the information necessary for application of our criteria compiled in Schantz v. Schantz, 163 N.W.2d 398 (Iowa 1969). After majority's decision in In re Marriage of Williams, 199 N.W.2d 339 (Iowa 1972) we no longer consider the fault criterion. The Schantz guides are applicable not only to property division on dissolution, but to the issue of alimony. See Geisinger v. Geisinger, 202 N.W.2d 44 (Iowa 1972); Comment, 18 Drake L.Rev. 298 (1969).

      At age 24 this petitioner had started an interesting and rewarding career, teaching nursing at the University of Iowa. For the next sixteen and one-half years she voluntarily interrupted that career to follow the occupation of homemaker and mother. We are relatively unimpressed by the respondent's inference she spent too much time golfing, dancing and playing bridge. We are not going to say such diversions, kept within bounds, should not be allowed those who stay at home and assume full-time responsibility for several small children.

      Nor are we to be interpreted as holding one who interrupts a professional career for the role of homemaker and mother has necessarily made a “sacrifice” under the Schantz pre-marital criteria. But no one, upon proper reflection, could say her career has not been affected by her virtual removal from her profession and its technical and scientific changes during sixteen and one-half years. She has lost all chance she may have had in the interim for seniority, pay increases, and possible pension rights. Albeit she is healthy, petitioner's alertness, her physical, nervous and emotional stamina, and her employment opportunities at age 40 cannot be that she had at 24. These considerations are “relative factors” referred to in the tenth Schantz post-marital criteria.

      The testimony indicates the few hours credit toward her master's degree petitioner obtained prior to marriage can no longer be applied for that purpose. Obtaining that degree (a requirement if she is to resume teaching) would mean attending the university three full semesters with a corresponding outlay for tuition and books. Referring briefly to certain of the other criteria, there is no indication in this record either party made any extraordinary sacrifice, or demonstrated any unusual devotion or care, in the furtherance of the marriage. Respondent's income has provided a relatively high standard of living to which petitioner has become accustomed. See In re Marriage of Boyd, 200 N.W.2d 845 (Iowa 1972). The home of these parties is in a good neighborhood and is one of the nicest in Fort Dodge. The family has enjoyed vacations and dined out regularly. The children have had the advantage of a full-time mother.

      Respondent's financial statement itemizes personal expenses, income tax and social security tax payments totaling approximately $720 per month. This includes monthly apartment rent of $250 and utility payments of $18.

      We believe an award of alimony is justified in this case. There is no evidence before us, nor can we judicially note, that women have yet achieved social and economic equality with men. It may be when that nirvana is attained the role of alimony in the ordinary dissolution case, for either spouse, will be insignificant. In the meantime, we are not persuaded a 40-year-old divorced woman with three minor children in the home has been so “liberated” it necessarily follows consideration of alimony is impermissible. More important, these children are not accustomed to a working mother. As in all dissolution cases, they are the innocent casualties of marital conflict. Termination of this marriage will be traumatic enough without having their home routine disrupted by full-time job demands on their mother. Alimony should be awarded to her so she might maintain the children in the same home until the approximate time the youngest is graduated from high school, and should be paid thereafter during the year and a half she might require to obtain her master's degree or otherwise rehabilitate her career.

      Petitioner asserts she will require about $1100 per month to maintain herself and the children. Child support will pay a portion of this. The evidence indicates certain life-style economies could be effected which should reduce the total sum. Respondent shall be required to pay $350 per month alimony to and including June 1, 1982, and thereafter $450 per month to and including January 1, 1984. These payments shall terminate on petitioner's death or remarriage. Payments shall not terminate on respondent's death but in that event shall be a charge on his estate.

      The expense of college for the children shall not be the obligation of the petitioner except to the extent of any child support received for a child while he or she is in college.

      V. Property division.

      We have already said the extensive property rights here involved, almost all standing in respondent's name, came from his parents as gifts. We may consider that fact, the net worth of this property, and that neither party contributed to its acquisition (Schantz third post-marital criteria). Other Schantz criteria and relevant facts discussed in our prior divisions are applicable here. Testimony in the appendix establishes petitioner apparently has better health than does respondent.

      In a number of prior decisions this court has granted a spouse an interest in property the other spouse has inherited. See, e. g., Neiderhiser v. Neiderhiser, 254 Iowa 791, 119 N.W.2d 245 (1963); Rider v. Rider, 251 Iowa 1388, 105 N.W.2d 508 (1960); Parizek v. Parizek, 210 Iowa 1099, 229 N.W.689 (1930); Chamberlain v. Chamberlain, 185 N.W. 983 (Iowa 1922); Brett v. Brett, 191 Iowa 262, 182 N.W. 241 (1921).

      There is no fixed rule, however, to sustain petitioner's claim she is unquestionably entitled to one-half of the property over which the court has jurisdiction. See Arnold v. Arnold, 257 Iowa 429, 133 N.W.2d 53, 60 (1965):

      “It is true some of our decisions have approved an award to the wife of as much as half the joint accumulations of herself and husband. Generally where it is done the accumulated property is the product of the joint effort of both spouses over a considerable period. This is not such a case.”

      All of the cases referred to in the last two paragraphs must be approached with caution, for they antedate the elimination of “fault” as a factor in property division. That factor played a part in the property division in several of those decisions.

      Much of respondent's evidence below, and argument here, relates to the income tax liability which would accrue if additional property were awarded petitioner. Emphasis has been placed on respondent's brother's reluctance to terminate the partnership. Neither concern, although important, can be controlling.

      We believe in this case a lump sum property award should be made. See Lessenger v. Lessenger, 261 Iowa 1076, 156 N.W.2d 845 (1968). After considering all factors, we hold petitioner should be awarded that property given her in the decree, and in addition, the New York Life policy on her own life and the sum of $30,000. This lump sum award may, at the option of respondent, be paid in 12 equal annual installments, without interest, commencing February 1, 1974. If no such election is made, the total sum must be paid by that date. In the event the installment option is exercised and in the further event respondent dies before the full sum is paid, the balance owed shall be a charge on his estate. In any event, respondent's obligation to pay petitioner $30,000 shall be a charge upon his interest in the Beeh Investments partnership until fully paid, and upon default in any payment, petitioner shall have the remedies provided in § 544.28, The Code.

      Award for attorney fees in district court.

      The appendix contains an itemized statement of the services of petitioner's attorney in the district court. Single-spaced, it fills two pages of the appendix and includes services extending over a period of eight months.

      In several recent decisions we have set out elements to be considered in the determination of reasonable attorney fees. See In re Marriage of Jennerjohn, 203 N.W.2d 237 (Iowa 1972); In re Marriage of Jayne, 200 N.W.2d 532 (Iowa 1972). Here the sums involved, the complexity of respondent's property holdings, the responsibility assumed and the professional standing and experience of the attorney might well justify an award greater than the $1500 fixed by trial court. But in absence of an itemization of time spent by the attorney, and giving weight to the trial court's finding, we are not justified in now substituting our judgment for his.

      VII. Attorney fees on appeal.

      Petitioner's attorney has submitted an outstanding brief and well-organized appendix. This case was competently argued on appeal. Again, we are handicapped in fixing the amount respondent should pay toward those services by the absence of a complete time itemization. The attorney spent 72.2 hours in briefing the case for appeal. Time involved in preparing for and in connection with submission totaled 11 hours. No information has been submitted relating to the time spent in preparation of the appendix and reply brief. We must also consider in this instance respondent's immediately available financial resources, other obligations imposed upon him, and the fact we are not fixing the total fee, only the amount respondent should pay.

      We hold respondent should be ordered to pay $2500 toward petitioner's attorney fees and costs incurred. All other costs shall be taxed to respondent.

      The judgment of the trial court is reversed in part and modified. This case is remanded for judgment in accordance with this opinion.

      Modified in part, reversed in part, and remanded with directions.

      MOORE, C. J., and REES, UHLENHOPP and HARRIS, JJ., concur.

      LeGRAND, MASON and RAWLINGS, JJ., dissent.

      McCORMICK, J., takes no part.

      LeGRAND, Justice (dissenting).

      In this case the majority orders a husband to pay for child support and alimony virtually all of his earned income for the next six years, a slightly less burdensome amount for the next five-and-one-half years, and awards her outright $30,000 more than the trial court allowed by way of property settlement. I think this result is wrong for several reasons, and I therefore dissent.

      The general principles by which disputes like this are governed are without dispute and are correctly stated in the majority opinion. My quarrel is with the manner in which they have been applied here. Despite the majority's claim of adherence to Schantz v. Schantz, 163 N.W.2d 398 (Iowa 1969), I contend the opinion flies directly in the face of the guidelines of that case. Except for length of marriage—sixteen years—every other Schantz criterion militates against the conclusion reached by the majority.

      After 22 years of continuous employment in a bank controlled by his family, respondent has attained the status of teller with an annual salary of $8600. Until two years ago he earned $6000 per year. The evidence shows he will continue to have employment at the bank, but that his present position is “where he's going.”

      He is 44 years old, she is 40. He has physical disabilities which impair his job performance, she is in perfect health. She is better educated than he and has her own profession—nursing—from which she concedes she can earn at least as much as he makes at the bank.

      Almost everything these two people have came to them by way of gift from his family. This includes the homestead and most of its furnishings. The trial court awarded petitioner property having an approximate value of $50,000. The decree also provided for support payments for three minor children fluctuating over the next six years from $625 per month down to $400 per month, depending upon the ages of the children from time to time. Then payments decrease to $225 per month for the only child who will still be a minor. The majority leaves the support payments undisturbed, but provides for alimony in the amount of $350 per month for ten years and $450 per month for eighteen months thereafter. The total alimony awarded is $50,100. The majority also increased the property settlement in petitioner's favor by $30,000 payable at respondent's option in a lump sum or in twelve equal annual installments.

      I believe these amounts are entirely unreasonable and unrealistic in view of the circumstances shown by the evidence. Respondent's earned income is approximately $12,000. (He receives fees for managing family property in addition to his bank earnings.) He also receives approximately $7500 from investments. Under the sliding scale of payments which the decree sets up, supplemented by the additional awards in the majority's schedule, respondent will pay over the next six years in support and alimony the following amounts: $11,100 for one year; $11,700 for each of the next two years; $9,000 for each of the following two years; and $9600 for the sixth year. Thereafter he will pay $6900 for each of the succeeding four years. His obligations will terminate—finally—with total payments of $8100 over an eighteen-month period for additional alimony after his youngest child has reached majority.

      Taking into consideration age, health, earning capacity, source of property, and several other Schantz “factors” mentioned later, I must protest the result thus reached. There is nothing to justify allowing petitioner to live off the largess of her husband's family after dissolution as she has done during the sixteen years the marriage endured.

      Several statements of the majority as bases for its holdings require some comment. The opinion talks of the value of property which has come to respondent from his parents. It is indeed considerable. However, much of it remains in a marital trust over which his mother has unrestricted power of appointment. There are others who may be preferred over respondent when and if that power is exercised—another child and a number of grandchildren. What she does could substantially reduce the property ultimately going to respondent. Yet the majority treats all of it as though it had already vested in him.

      The majority also seems to object strenuously to the trial court's mention of “women's liberation, sex equality, and the general social and economic emancipation of women's in reciting the reasons for its decretal conclusions. Perhaps the trial court overemphasized this modern trend, but the result was nevertheless the correct one, even though the reasons for it may be subject to criticism. Furthermore how can we say woman's new status—recognized by almost everyone and statutorily mandated in many areas—is entitled to no consideration as a “factor” under the Schantz case? It is interesting, too, that the majority finds itself unable to “judicially note that women have achieved social and economic equality with men” while at the same time taking such notice, without evidentiary support, that petitioner “has lost seniority, pay increases, and possible pension rights.” I find the former as judicially noticeable as the latter.

      The majority reaches another debatable, if not entirely untenable, conclusion in finding this healthy and athletic 40-year-old woman has lost much of her “alertness, and physical, nervous and emotional stamina” compared to a woman of 24, her age at marriage. From this the majority reasons her employment opportunities have diminished. Aside from the fact that I am unwilling to say a woman forty years old is over the hill, the evidence belies the majority's reasoning in the present case. It is clear petitioner can secure quick, if not immediate, employment as a nurse. Perhaps not in the teaching area, which she would prefer, but in the nursing profession generally.

      In conclusion I make brief mention of the reliance placed by the majority on the claim the children are not used to a “working mother” and that it would disrupt their home routine if petitioner should now be required to take a full-time job. While there are several possible answers to this, again the reply here may be found in the evidence. Petitioner has always spent a great deal of time away from home. She could hold full-time employment without being gone much more than formerly simply by giving up her avid pursuit of her two main recreations, golf and bridge. Certainly these are both innocent and interesting diversions, but as practiced by her, they are also very time consuming. Perhaps this is a sacrifice she must make for the sake of her children.

      I would affirm the trial court.

      MASON and RAWLINGS, JJ., join this dissent.

      Marital Property: Equitable Distribution: Rothman v. Rothman (1974)

      Editor's note: A New Jersey state statute recognizes marriage as a partnership entitling the homemaker to a share of the family assets. In this 1974 Supreme Court of New Jersey case, the court clarified a state law on the distribution of property upon divorce. The defendant resisted dividing marital property as so ordered, on the claim that in order to avoid constituting a violation of due process, the law could only apply to property acquired after its passage. (It is interesting to consider this due process argument in conjunction with Justice Black's dissent in Boddie v. Connecticut, p. 1338, in the same decade.)

      65 N.J. 219 (1974)

      320 A.2d 496

      IRENE ROTHMAN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,

      v.

      GEORGE IRVING ROTHMAN, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.

      The Supreme Court of New Jersey.

      Reargued January 7, 1974.

      Decided June 5, 1974.

      Mr. Howard Stern argued the cause for plaintiff-respondent and cross-appellant (Messrs. Shavick, Stern, Schotz, Steiger and Croland, attorneys; Mr. Stern, of counsel; Mr. Samuel D. Bornstein and Mr. Donald S. Coburn, on the brief).

      Mr. Alfred C. Clapp argued the cause for defendant-appellant and cross-respondent (Messrs. Schneider, Schneider and Behr, attorneys; Mr. Clapp, of counsel).

      The opinion of the Court was delivered by MOUNTAIN, J.

      The trial court granted plaintiff, Irene Rothman, a divorce on the ground of adultery. The counter-claim filed by defendant, George Rothman, seeking divorce on the no-fault ground of an 18 month separation with no prospect of reconciliation was dismissed. Thereafter the trial judge took testimony and heard argument on the issues of alimony and equitable distribution of marital assets. His conclusions were set forth in an oral, unreported opinion. Both parties appealed from the ensuing judgment and we granted certification on motion while the case was pending unheard in the Appellate Division. 63 N.J. 505 (1973). On this appeal we are not asked to review the grant of a divorce to plaintiff or the denial of a divorce to defendant. Solely in issue here are the terms of the judgment below that relate to the allocation of marital assets.

      The trial judge found that defendant had a minimum net worth of $4,600,000; plaintiff's assets were valued at $400,000. Defendant's net income after taxes was found to be $190,000. The judgment of the court directed defendant to pay plaintiff $45,000 a year by way of alimony and to turn over to her as an equitable share of the marital assets the sum of $700,000. Of this amount, $100,000 was to take the form of a conveyance of defendant's undivided one-half interest in what had been the marital home in Englewood. Prior to divorce the parties had held title to this real estate as tenants by the entirety and it was determined that the property had a value of $200,000.[1] Defendant was given one year within which to tender to the plaintiff assets worth $600,000. The delay was occasioned by the unliquid nature of most of defendant's holdings. Plaintiff was given a security lien upon all of his real estate pending satsifaction of the obligation.

      Two issues are presented for disposition. First it is argued by defendant that the grant of power to effect an equitable distribution of marital assets between husband and wife should be interpreted as having prospective application only.[2] Correlatively it is urged that if the statute is interpreted retrospectively, as applying to any property interest acquired before that date, it must be stricken as unconstitutional because it would then deprive the defendant of property without due process of law. Plaintiff opposes these contentions, taking the position that the Legislature intended the statute to apply to all eligible property owned by a husband or wife at the time of the initiation of a divorce action, provided the case was tried on or after September 13, 1971. As so construed, plaintiff urges, the enactment suffers from no constitutional infirmity.

      Secondly, both parties vigorously object to the conclusions reached by the trial court as to the net worth of each, and as to the allocation of assets between them as determined by the court.

      We consider first the meaning of the statute. It seems clear that the construction urged by plaintiff more accurately reflects legislative intent and certainly would, in practice, be preferable to that for which defendant contends. Momentarily ignoring constitutional compulsions, and viewing the issue simply as one of statutory construction, we find ourselves unable to believe that the Legislature intended its grant of power to undertake an equitable distribution of marital assets to apply solely to property acquired on or after the effective date of the act. Were this construction to be adopted, it would, in each case, become necessary to determine the date of acquisition of each asset acquired during marriage, often a difficult if not impossible task. A further question would arise should the particular property interest under consideration, though acquired after the effective date of the act, have been purchased with, or received in exchange for, money or other property owned before that date. Moreover, if defendant's contention were adopted, it has been estimated, apparently without exaggeration, that the full effect of the statute would not be felt for at least a generation.[3]

      In support of his position defendant points to a number of cases in this State which stand for the proposition that in construing a statute its terms will not be given retroactive effect “unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intent of the legislature cannot otherwise be satisfied.” Kopczynski v. County of Camden, 2 N.J. 419, 424 (1949). See also, LaParre v. Y.M.C.A. of the Oranges, 30 N.J. 225, 229 (1959); In re Glen Rock, 25 N.J. 241, 249 (1957); Nichols v. Board of Education, Jersey City, 9 N.J. 241, 248 (1952). We continue to believe that these statements express a sound rule of statutory interpretation. But it is no more than a rule of statutory interpretation, and all such rules have a single purpose — to aid the court in its quest for legislative intent. Where, as we find here to be the case, supervening considerations clearly compel a contrary determination, this, like all other rules of statutory construction must give way. We find it impossible to credit the Legislature with the intent urged by defendant. Rather we hold that the statutory provision is intended to apply with respect to all property acquired during the marriage, whether before or after the effective date of enactment. As so interpreted, is the legislation unconstitutional? Admittedly the effect of the statute, as so construed, is to make eligible for distribution, property which, prior to the act, could not have been subjected to such treatment. Does this amount to a deprivation of property without due process of law in violation of the Fourteenth Amendment of the Federal Constitution and Art. 1, par. 1 of the New Jersey Constitution?[4]

      Of course, not all retrospective statutes are unconstitutional. A traditional formulation of the applicable rule states that retroactive legislation is constitutionally offensive only to the extent that it modifies or abrogates “vested rights.” But, as has been noted, the term “vested right” is conclusory — a right is vested when it has been so far perfected that it cannot be taken away by statute. [Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73

      Harv. L. Rev. 692, 696 (1960)]

      A state may, in the exercise of the police power, enact a statute to promote the public health, safety, morals or general welfare. Such a statute, because of retroactive application or otherwise, may diminish in value or totally destroy an individual's right, whether in property as such or arising out of contract, provided that the public interest to be promoted sufficiently outweighs in importance the private right which is impaired. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934); Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469 (1952); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). In these cases, as in many others as well, the court has, after examining the importance of the public interest served by the statute and comparing it with and balancing it against the quality and value of the right affected by the retroactive legislation, reached the conclusion that the state statute in question represented a valid exercise of the police power, despite the fact that in each case there was some clear incursion upon individual private rights. See Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, supra, 73 Harv. L. Rev. at 697 et seq.; Tennis, Retroactive Application of California Community Property Statutes, 18 Stan. L. Rev. 514, 518–519 (1966); Greenblatt, Judicial Limitations on Retroactive Civil Legislation, 51 Northwestern Univ. L. Rev. 540, 561 (1956).

      The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.

      The reports of our decisions abound with cases in which the citizen, individual or corporate, has vainly invoked the Fourteenth Amendment in resistance to necessary and appropriate exertion of the police power. [Nebbia v. New York, supra, 291 U.S. at 525, 54 S.Ct. at 510–511, 78 L.Ed. at 950 (1933)]

      This Court has repeatedly sought to indicate the expansive thrust of the police power of the State when appropriately exercised. In Reingold v. Harper, 6 N.J. 182 (1951) Justice Heher described this power in eloquent and comprehensive terms.

      The range of the State's discretion in promoting the security and well-being of the public “accords with the subject of its exercise.” Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 195, 77 L.Ed. 375 (1932). Where the end is one to which legislative power may properly be directed, it is enough “if it can be seen that in any degree, or under any reasonably conceivable circumstances, there is an actual relation between the means and the end.” Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 187, 77 L.Ed. 288 (1932). The wisdom, expediency or policy of a police regulation does not give rise to a justiciable question if the measure is directed to a matter of public concern within the domain of the police power, and the means are reasonable and appropriate to the end in view. The lawmaking body is the sole judge of what is adequate to meet the particular public requirement; judicial interposition is justifiable only where the action taken is arbitrary. The police power is an attribute of sovereignty to serve all the great public needs; and its exercise does not constitute a denial of due process or the equal protection of the law within the concept of the Fifth and Fourteenth Amendments of the Federal Constitution or the due process clauses of our own Constitution, unless it be palpably unreasonable or unduly discriminatory. It is sufficient if there be a rational connection between the means employed and the end sought. Every reasonable presumption is to be made in favor of the validity of the legislative act. Fairly debatable questions as to need and the propriety of the means employed to meet the exigency are within the legislative province. When the subject is comprehended in the police power of the State, “debatable questions as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment.” Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932).

      Persons and property are subject to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; and, when the power is exerted by the lawmaking body, it is not a judicial function to determine which one of two modes was likely to be the most effective for the protection of the public interest in view. That is a legislative inquiry, to be resolved in the light of all the information at hand. Judicial interference in this regard would constitute an invasion of the legislative function. Judicial interposition may be had only where there is no real or substantial relation between the legislative act and a valid public interest under the police power or the measure is, beyond all question a palpable invasion of rights secured by the organic law. The expediency of the statute is for the lawmaking body alone. Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905); Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016 (1926); Standard Oil Co. v. City of Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856 (1929). [6 N.J. at 193–195]

      Many of our later cases attest to the breadth and scope of the police power as exerted in the public interest to regulate or control the exercise of rights as well as individual conduct in general. As examples, see Burton v. Sills, 53 N.J. 86, 102 (1968) (gun control); N.J. Chapter, Am. Institute of Planners v. N.J. State Bd. of Professional Planners, 48 N.J. 581, 599–602 (1967) (regulation of professional planners); David v. Vesta Co., 45 N.J. 301, 310–314 (1965) (prohibiting discrimination in housing accommodations); Grand Union Co. v. Sills, 43 N.J. 390 (1964) (liquor control); Hudson County News Co. v. Sills, 41 N.J. 220, 226–230 (1963) (regulation of distributors of published materials). In these cases, as in so many others, private rights were held to have been validly curtailed by legislation deemed to be in the greater public interest.

      It has long been well settled and now stands unchallenged that marriage is a social relationship subject in all respects to the state's police power. Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 1821, 18 L.Ed.2d 1010, 1015 (1967); Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 213, 87 L.Ed. 279, 285 (1942). Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. [Maynard v. Hill, supra, 125 U.S. at 205, 8 S.Ct. at 726, 31 L.Ed. at 657 (1888)]

      The statute we are considering authorizes the courts, upon divorce, to divide marital assets equitably between the spouses. The public policy sought to be served is at least twofold. Hitherto future financial support for a divorced wife has been available only by grant of alimony. Such support has always been inherently precarious. It ceases upon the death of the former husband and will cease or falter upon his experiencing financial misfortune disabling him from continuing his regular payments. This may result in serious misfortune to the wife and in some cases will compel her to become a public charge. An allocation of property to the wife at the time of the divorce is at least some protection against such an eventuality. In the second place the enactment seeks to right what many have felt to be a grave wrong. It gives recognition to the essential supportive role played by the wife in the home, acknowledging that as homemaker, wife and mother she should clearly be entitled to a share of family assets accumulated during the marriage. Thus the division of property upon divorce is responsive to the concept that marriage is a shared enterprise, a joint undertaking, that in many ways it is akin to a partnership. Only if it is clearly understood that far more than economic factors are involved, will the resulting distribution be equitable within the true intent and meaning of the statute. See generally, Freed and Foster, Economic Effects of Divorce, 7 Family Law Quart. 275 (1973). The widely pervasive effect this remedial legislation will almost certainly have throughout our society betokens its great significance.[5]

      Against this exercise of the police power in the public interest we must measure and compare the individual loss that may be sustained by a spouse whose property is allocated to the other spouse incident to a dissolution of the marriage. In the first place the statute does not by its terms directly affect property rights in any way. No interest in property is taken from one person and transferred to another by the language of the enactment. Only if a person becomes party to a proceeding for divorce, and so more directly subject to the police power of the state, does the statute even have potential relevance. Finally, as we were careful to point out in Painter v. Painter, 65 N.J. 196 (1974), no change in property rights will occur except upon the entry of a judgment of allocation, which must by its terms be “equitable.” This loss or impairment is indeed slight when balanced against the probable benefit to the public welfare inherent in the legislation.

      This exercise of power by the State is somewhat akin to an exercise of the zoning power. As a result of each such exercise some property rights, potentially at least, are diminished and made less expansive than before. In Hohfeldian phrase, the bundle of rights which together constitute ownership, has in each case become a somewhat smaller bundle. But the ownership of property is never absolute, nor could it be in an ordered society.

      Defendant relies upon such authorities as Gerhardt v. Sullivan, 107 N.J. Eq. 374 (Ch. 1930); McGoldrick v. Grebenstein, 108 N.J. Eq. 335 (Ch. 1931) and Mueller v. Mueller, 95 N.J. Super. 244 (App. Div. 1967). But these precedents afford defendant little help. In none of these cases was there any suggestion that the legislation under review had constituted what we normally think of as an exercise of the police power. Rather each of the laws considered had been intended only to affect private rights. Thus in Gerhardt the court examined a statute which had increased a wife's inchoate dower interest in her husband's real estate from one-third to one-half. It held that the act did not affect, and could not constitutionally be held to affect, a wife's interest in real property acquired by her husband before the date the statute was enacted. The husband was held to have acquired a vested right immune from the effect of such legislation. McGoldrick dealt with a statute that purported to alter, in somewhat similar fashion, a husband's inchoate curtesy interest. Mueller held that legislation which had the effect, under certain circumstances, of allowing partition of lands held by a husband and wife as tenants by the entirety, could not be construed to apply to lands held in such tenancy before the date of the act.

      In each instance the statutes under review in the foregoing cases had an immediate and considerable impact upon private rights, while serving no discernible public purpose of real import. Thus, by affording the acts only prospective application, the interest of the public was not materially diminished, while private rights were protected. In the instant case, however, as we have indicated, there is a highly significant and important social interest which will be seriously impaired by interpreting the statute as having no more than prospective application.

      While, as set forth above, we have preferred to meet the constitutional challenge directly, another approach to the problem should not be overlooked. In Addison v. Addison, 62 Cal.2d 558, 43 Cal. Rptr. 97, 399 P.2d 897 (1965), the Supreme Court of California considered the constitutionality of a statute of that state which included a provision for the distribution of community and quasicommunity property in the event of a divorce. Quasi-community property was defined as assets acquired by either spouse elsewhere than in California which would have been community property had they been acquired in California. The Addison couple became residents of California before the enactment of the statute, having brought with them from their former home in Illinois substantial property that had been earned by the husband while resident there and that stood in his name. It was held that the legislation was constitutional on its face and that it could be constitutionally applied to the property acquired in Illinois that had been brought to California before the act was passed. Thus the property of the husband was eligible for distribution to the wife upon divorce.

      The court adopted the view, inter alia, that in fact the act was not being given any retrospective application: Nor is the statute being applied retroactively. That is so because the legislation here involved neither creates nor alters rights except upon divorce or separate maintenance. The judgment of divorce was granted after the effective date of the legislation. Hence the statute is being applied prospectively. [Addison v. Addison, supra, 43 Cal. Rptr. at 104, 399 P.2d at 904]

      The same may as well be said with respect to the statute we are here considering.

      We hold accordingly that the statute, N.J.S.A. 2A: 34–23, as amended by L. 1971, c. 212, given the interpretation set forth above, does not in any way offend the requirement of due process.

      As we have already noted, both parties appealed from the judgment of allocation of property as entered by the trial court. This case must, in any event, be remanded for reconsideration of this judgment in the light of our holdings in Painter v. Painter, 65 N.J. 196 (1974) and Chalmers v. Chalmers, 65 N.J. 186 (1974), both decided this day. We have, however, carefully reviewed the record in this case and believe that certain observations may prove helpful upon remand.

      In receiving and considering evidence designed to equip him to make an equitable distribution of marital assets, a trial judge enters upon a three-step proceeding. Assuming that some allocation is to be made, he must first decide what specific property of each spouse is eligible for distribution. Secondly, he must determine its value for purposes of such distribution. Thirdly, he must decide how such allocation can most equitably be made.[6] As to the first two of these steps he must receive, and must insist upon having, the full cooperation of the litigants. Counsel for both husband and wife should, in advance of such a hearing, see that their clients have carefully reviewed all eligible property interests they possess and that they come to court prepared to testify fully and accurately with respect thereto. This will normally involve an expenditure of time, and in some cases an expenditure of money as well. It will be necessary to consult checkbooks and other financial records including tax returns, to inventory the contents of safe deposit boxes and to secure up-to-date appraisals of real estate and of business interests. The assistance of appraisers and accountants will sometimes be required. We emphasize these considerations because of their rather conspicuous absence at the trial of this case. The defendant is a wealthy man and his business interests widespread and complex. But this affords no excuse for a failure to set forth clearly and in detail a description as well as the value of each interest in property that he owns and that may be eligible for distribution. The same is true of the plaintiff and will be true as to all marital litigants. We confess to an inability, upon the present record, to find adequate credible evidence to support — or to disprove — the conclusions reached by the trial court as to the total value of assets eligible for distribution that are owned by each party. Those portions of the judgment entered below pertaining to the allocation of marital assets are hereby vacated and set aside and this case is remanded for further proceedings consistent with what has been said above and with the decisions in Painter v. Painter and Chalmers v. Chalmers, supra. The award of alimony made below may also be reviewed by the trial court, because of its close relationship to the judgment of allocation. All alimony payments as ordered below are to be in the meantime continued. For remandment — Chief Justice HUGHES, and Justices JACOBS, HALL, MOUNTAIN, SULLIVAN, PASHMAN and CLIFFORD — 6.

      Opposed — None.

      [1] This $200,000 is included in the figure of $400,000 mentioned above as constituting the value of plaintiff's assets.

      [2] The power to allocate marital assets between husband and wife, incident to a divorce, derives from L. 1971, c. 212, which became effective September 13, 1971. It is now to be found in N.J.S.A. 2A:34-23.

      [3] At one time the courts of the State of California held the view that each amendment of that state's community property statutory law could have only prospective effect, and that this result was constitutionally mandated. Thus it was necessary, in any case involving an issue as to marital rights in any specific property, to determine the law at the time of its acquisition as well as the genesis of the funds used in its purchase, in the event it had been purchased. The intolerable confusion generated by this rule — believed at the time to be constitutionally compelled — is vividly portrayed in Professor Barbara N. Armstrong's article, “‘Prospective’ Application of Changes in Community Property Control — Rule of Property or Constitutional Necessity,” 33 Cal. L. Rev. 476 (1945). Apparently the rule has now been changed. Addison v. Addison, 62 Cal.2d 558, 43 Cal. Rptr. 97, 399 P.2d 897 (1965).

      [4] Defendant invokes no constitutional provision other than the due process clause in support of his argument, and we think this implied concession that no other clause is applicable is well taken. The ex post facto clause was early held to apply only to retroactive criminal legislation, Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). The marriage relation has been held to be a compact not coming within the prohibition against legislation impairing the obligations of contracts. Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888).

      [5] It hardly needs repeating that the wisdom of the legislation is not a judicial concern. Where, as is clearly true here, the means chosen have a real and substantial relation to the achievement of the legislative purpose, it matters not whether the judiciary would have selected the same or other means to attain the desired end.

      [6] The suggestion has been offered that in undertaking to effect an equitable distribution of marital assets, the trial court should, to establish a starting point, presumptively assign some proportion, generally mentioned as 50%, of all eligible assets to each spouse. We disapprove of this proposal. No basis for it is to be found in the statute itself, it would import into our law concepts now held chiefly, if not solely, in those states where community property law principles have gained acceptance, and we foresee that it might readily lead to unjust results. Rejecting any simple formula, we rather believe that each case should be examined as an individual and particular entity. The point has been well expressed in an opinion of the Supreme Court of Wisconsin,

      The formula for division derives from the facts of the individual case. If it is argued that this approach gives great leeway and also places a heavy responsibility on trial courts in divorce cases, there is no gainsaying that fact. However, both flexibility and responsibility are called for by the endless variety of human situations that come to court in family cases. No two are exactly alike. [Lacey v. Lacey, 45 Wis.2d 378, 173

      N.W.2d 142, 145 (1970)]

      Separation Agreements: Fraud and Coercion: Knox v. Remick (1976)

      Editor's note: A Massachusetts court ruled that a separation agreement must be fair and reasonable, and free from fraud and coercion in order to be valid. The Supreme Judicial Court of Massachusetts here responds to a question referred from the Probate Court. Having quickly disposed of the question, it goes on to clarify the status of obligations created by separation agreementsafter the couple divorces and the role and authority of the Probate Court. Guidelines are laid out, anticipating possible questions from the Probate Court, detailing the handling of conflicts between a separation agreement and a subsequent divorce judgment, and the necessity of preventing a spouse from becoming dependent on state assistance as the result of a reduction in support payments.

      371 Mass. 433 (1976)

      358 N.E.2d 432

      BARBARA Y. KNOX

      vs.

      PAUL REMICK, JR.

      Supreme Judicial Court of Massachusetts, Norfolk.

      October 4, 1976.

      December 8, 1976.

      Present: HENNESSEY, C.J., REARDON, BRAUCHER, KAPLAN, & WILKINS, JJ.

      Paul J. Sullivan for Barbara Y. Knox.

      Stuart DeBard for Paul Remick, Jr.

      WILKINS, J.

      A judge of the Probate Court for Norfolk County has reported (G.L.c. 215, § 13) a question concerning his power to modify a decree so as to require a divorced father to make increased payments for the support of his minor children. The decree of divorce provides that support of the minor children “is in accordance with a trust agreement dated June 12, 1967, filed herewith by the parties, which is incorporated and made part of this decree by reference, until the further order of the Court.” The former wife, since remarried, sought an order increasing the husband's support obligations for their minor children. We conclude that the judge has the authority to order a modification of child support provisions in this circumstance.

      The decree contained an order for the support of the minor children. The provision in the decree that support should be as provided in the separation agreement “until the further order of the Court” shows a clear intention on the part of the judge who entered the decree that the decree should and did contain an order for support of the minor children. However, we do not rest our decision on that language. The incorporation of the agreement into the decree was sufficient in itself to cause the decree to contain an order for support, which in turn could be modified. We so held recently in Salvesen v. Salvesen, 370 Mass. 608, 610–611 (1976), where we expressly disapproved a contrary view expressed in Gunter v. Gunter, 3 Mass. App. Ct. 729 (1975). Concern over the impact of the Gunter opinion on a Probate Court judge's power to modify a decree of the character involved in this case prompted this report. If our opinion in the Salvesen case did not dispel that concern, our continued adherence to the views there expressed should do so.[1] We answer the judge's question by stating that the decree contained an order for child support and, therefore, the judge is not precluded from modifying the support order, if he determines that such a modification is appropriate in the circumstances.[2]

      Although what we have said is sufficient to dispose of the question reported, we think it appropriate to discuss the relationship of separation agreements and orders entered in connection with judgments of divorce.[3] The subject is one of daily concern to the judges of the Probate Courts of the Commonwealth. Two other cases decided by us today involve the relationship of a separation agreement and a divorce judgment containing a support order. See Ryan v. Ryan, ante, 430 (1976), and Ross v. Ross, post, 439 (1976).

      There is, of course, no conflict if a separation agreement was not intended to survive the entry of the divorce judgment. Fabrizio v. Fabrizio, 316 Mass. 343, 346–347 (1944). See Whitney v. Whitney, 316 Mass. 367, 370–371 (1944). In such a case, the support obligations of the parties are expressed only in the divorce judgment which is subject to modification on petition.

      A Probate Court support order may be modified to require a lower payment than that agreed to between the parties in a separation agreement which is intended to survive a divorce judgment. Wilson v. Caswell, 272 Mass. 297, 301 (1930). The parties may not preclude a Probate Court judge from reducing the amount of support ordered to be paid, although the terms of the agreement may prompt a judge in his discretion not to modify the order. See Oakes v. Oakes, 266 Mass. 150, 152 (1929). Such a reduction in mandated support payments removes the threat of contempt proceedings against the obligated spouse to the extent of the reduction. On the other hand, although the mandated support may be reduced, the Probate Court judge has no authority to modify the agreement itself by reducing the obligated spouse's contractual commitment. Schillander v. Schillander, 307 Mass. 96, 98–99 (1940). See Glazer v. Silverman, 354 Mass. 177, 178 (1968). Thus, where a husband has obtained a reduction in his support obligation under a court order, the wife is entitled to recover in a contract action any difference between the amount he contracted to pay and the amount the judge has ordered him to pay. Hills v. Shearer, 355 Mass. 405, 408 (1969). Freeman v. Sieve, 323 Mass. 652, 656–657 (1949). Welch v. Chapman, 296 Mass. 487, 488 (1937). See Whitney v. Whitney, 316 Mass. 367, 370 (1944).

      We consider next the consequences of a support order which directs the payment of support in an amount in excess of that provided in a separation agreement. As we have held today, the terms of a separation agreement cannot bar a Probate Court judge in all circumstances from entering an order for payments in excess of those expressed in the separation agreement. Ryan v. Ryan, supra at 432, and cases cited. What then is the consequence of an agreement by one spouse to accept the support payments set forth in a separation agreement in full satisfaction of all future claims for support or of an agreement by one spouse to hold the other harmless from the consequences of a future increase in support obligations resulting from a court order? We have intimated that such agreements are valid and enforceable. See Schillander v. Schillander, 307 Mass. 96, 98 (1940). It is true that the principal authority relied on in making such a statement in the Schillander case is opinions of this court concerning separation agreements providing for support to be paid during marriage. See, e.g., Aitchison v. Chamberlain, 243 Mass. 16, 21 (1922). Perhaps the most outspoken of all these opinions is Bailey v. Dillon, 186 Mass. 244 (1904), where we declined to enforce specifically a separation agreement because the husband could set it up as a bar to separate support proceedings commenced by the wife in the Probate Court. We said (at 248) that the agreement would be a bar to the Probate Court proceedings “if [it] was understandingly entered into by [the wife], and is free from fraud and coercion, and is fair and reasonable….”

      We see no reason why parties to a separation agreement which anticipates that the marriage will be terminated by divorce may not agree to a permanent resolution of their mutual rights and obligations, including support obligations between them. If a judge rules, either at the time of the entry of a judgment nisi of divorce or at any subsequent time, that the agreement was not the product of fraud or coercion, that it was fair and reasonable at the time of entry of the judgment nisi, and that the parties clearly agreed on the finality of the agreement on the subject of interspousal support, the agreement concerning interspousal support should be specifically enforced, absent countervailing equities. This has been the result indicated by this court numerous times in the past. See Reeves v. Reeves, 318 Mass. 381, 384 (1945), and cases cited.[4] Where, however, the Probate Court judge determines that one spouse is or will become a public charge, the judge may order support pursuant to his statutory authority, not specifically enforcing the separation agreement to the point where the separation agreement would be used to impose support obligations on the taxpayers of the Commonwealth. See McMainsv. McMains, 15 N.Y.2d 283, 284–285 (1965). As indicated above, there may be other situations where a Probate Court judge will conclude in his discretion to deny the equitable relief on specific enforcement. For example, specific performance of an agreement concerning support payments might be denied where the plaintiff had not complied with some other provision in the separation agreement.

      An agreement to fix a spouse's support obligation for minor children stands on a different footing. Parents may not bargain away the rights of their children to support from either one of them. Ryan v. Ryan, supra at 432, and cases cited. 2 J.F. Lombard, Family Law § 1258 (1967). However, an informed agreement made by the parents, allocating responsibility for support of a minor child, should be upheld as far as possible as between the contracting parties, assuming the agreement is free from fraud and coercion and was fair and reasonable at the time the divorce judgment was entered. But a Probate Court support order may recast the burden of support for a child, as expressed in a separation agreement, for example, where (a) a support order would be entered or modified, as the case may be, in the absence of such an agreement and (b) the level of available support for the child is inadequate in the circumstances because one former spouse is incapable financially of meeting his or her obligation for child support expressed in that agreement. Although the separation agreement will not be enforced specifically in that circumstance, the spouse whose support obligation is increased by the judge's order beyond that spouse's contractual obligation has a claim for breach of contract, which may have no practical current value because of the financial condition of the other spouse.

      We believe that all aspects of the dispute between the former spouses should be resolved in one proceeding. If one spouse seeks modification of a support order so as to depart from the terms of the separation agreement, the other spouse should raise the availability of the separation agreement as a potential bar in the same proceeding. Probate Courts have jurisdiction over “matters of equity cognizable under the general principles of equity jurisprudence….” G.L.c. 215, § 6, as appearing in St. 1973, c. 1114, § 63. Although rule 13 of the Massachusetts Rules of Civil Procedure, 365 Mass. 758 (1974) (concerning compulsory and permissive counterclaims), has not been adopted in the Massachusetts Rules of Domestic Relations Procedure (1975), rule 12 (b) of the rules of civil procedure, 365 Mass. 754 (1974), has been adopted in identical form in the rules of domestic relations procedure. That rule requires that every defense must be asserted in the defendant's responsive pleading. Because, as we view the status of a separation agreement, the agreement may be a bar to a petition for modification of a support order, the effect of that agreement should be raised in the Probate Court.

      The case is remanded to the Probate Court for further proceedings consistent with our opinion.

      So ordered.

      [1] The separation agreement contained a provision that “the court may be requested to enter a decree incorporating this agreement in lieu of orders relative to property, maintenance or alimony.” We do not know what the judge was requested to do, but he did not omit a provision for support in his order, relying on the agreement to cover the subject. He made a specific order for support.

      [2] This opinion should not be taken, however, to imply that the Probate Court lacks jurisdiction to order appropriate child support payments if a judgment nisi of divorce contains no order concerning child support. See Kates v. Kates, 347 Mass. 783 (1964).

      [3] Under present practice, a decree nisi of divorce is called a judgment nisi of divorce. We shall refer to such decrees and judgments by the current designation.

      [4] Such finality, after approval of the agreement by the judge and entry of judgment nisi, exists under the recently enacted so called no-fault (“irretrievable breakdown”) divorce statute. See G.L.c. 208, § 1A, inserted by St. 1975, c. 698, § 2. We do not consider here the consequences of such a divorce judgment and a separation agreement made and approved under that statute.

      Interstate Child Custody: Court Jurisdiction: Kulko v. Superior Court (1977)

      Editor's note: The Supreme Court of California ruled that a child visiting a parent in another state does not give jurisdiction to the state over the parent who does not live there. Because family law is principally handled by the states, jurisdictional matters must occasionally be addressed, as one or both members of the couple may relocate to a new state. Certain laws have been adopted universally to prevent conflict: a heterosexual divorce in any state is recognized by all other states; and every state has a minimum period of residence before granting a marriage or divorce. In this California Supreme Court decision, the matter of which state has jurisdiction when a child visits an out-of-state parent without primary custody is addressed.

      19 Cal.3d 514 (1977)

      564 P.2d 353

      138 Cal. Rptr. 586

      EZRA KULKO, Petitioner,

      v.

      THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SHARON KULKO HORN, Real Party in Interest.

      Docket No. S.F. 23574.

      Supreme Court of California.

      May 26, 1977.

      COUNSEL

      Stern, Stotter & O'Brien and Lawrence H. Stotter for Petitioner.

      No appearance for Respondent.

      Shapiro & Thorn and Suzie S. Thorn for Real Party in Interest.

      Stephen Adams as Amicus Curiae on behalf of Real Party in Interest.

      OPINION

      SULLIVAN, J.[*]

      In this proceeding brought pursuant to section 418.10, subdivision (c), of the Code of Civil Procedure, petitioner Ezra Kulko seeks a writ of mandate directing respondent superior court to vacate its order denying petitioner's motion to quash service of summons for lack of jurisdiction in the underlying action, to establish a foreign judgment of divorce, and to grant said motion. We have concluded that the trial court correctly denied the motion. We deny the petition.

      (1), (2) (See fn. 1.) Viewing the evidence under the well-settled rules governing review of an order based on affidavits,[1] we set forth the pertinent facts.

      On September 25, 1972, after 13 years of married life, real party in interest Sharon Kulko (hereafter plaintiff) was granted a decree of divorce from petitioner Ezra Kulko (hereafter defendant) by the Civil Court of Port-au-Prince in the Republic of Haiti. There were two children born of the marriage: Darwin, born June 23, 1961, and Ilsa, born July 10, 1962. Under a written separation agreement, entered into by the parties in New York, their marital domicile, and thereafter attached to and made a part of the decree, it was agreed that during the period of the year when they were attending school Darwin and Ilsa should reside with and remain in the care, custody and control of defendant and that during the summer months and Christmas and Easter vacation weeks, they should reside with and remain in the care, custody and control of plaintiff. The agreement recited that defendant resided in New York and plaintiff in San Francisco. Defendant agreed to pay $3,000 annually for the support of the children during the time they resided with their mother in California.

      During 1973, in accordance with the agreement, both children were sent to San Francisco and returned to New York. However, in December 1973, on the eve of her departure to spend the Christmas vacation with her mother, Ilsa informed her father that she wanted to live in California with her mother. Defendant thereupon purchased a one-way airplane ticket for her and she left with all her clothes. Throughout 1974 and 1975 Ilsa resided with her mother in California during the school year and with her father in New York during the summer. At the end of each summer, defendant provided her with an airplane ticket and she returned to live with her mother in San Francisco during the school year.

      Meanwhile, throughout this period Darwin had continued to live with his father during the school year and his mother during the summer and on vacation. On January 10, 1976, Darwin telephoned plaintiff from New York, informing her that he was in trouble, that his father did not want him and that he wished to come to San Francisco to live with her. She sent him an airplane ticket and he immediately joined her in San Francisco.

      Three weeks later, on February 5, 1976, plaintiff commenced the underlying action to establish the Haitian divorce as a judgment of this state, to award custody of the children to plaintiff and to receive increased child support from defendant. On the same day, the trial court granted plaintiff temporary custody of Darwin and Ilsa and restrained both parties from removing the children from plaintiff's home. Defendant, who had been served with summons by mail in New York, made a special appearance in California and moved for an order to quash service of summons (Code Civ. Proc., § 418.10, subd. (a)(1)) for lack of personal jurisdiction in that he was not a resident of California and did not have the requisite minimum contacts with California to satisfy due process requirements. Defendant supported his motion with two personal affidavits and plaintiff responded with an affidavit in opposition. The trial court denied the motion. This proceeding for a writ of mandate followed. (Code Civ. Proc., § 418.10, subd. (c).)

      No contention is made before us that the trial court lacked jurisdiction to determine the custody of Darwin and Ilsa. (See Civ. Code, § 5152; Titus v. Superior Court (1972) 23 Cal. App.3d 792, 797–798 [100 Cal. Rptr. 477]; see Sampsell v. Superior Court (1948) 32 Cal.2d 763, 777–779 [197 P.2d 739]; Rest.2d Conflict of Laws, § 79, pp. 237–240.) (3) However, in order to impose upon defendant a personal liability to support the children, the court must secure personal jurisdiction over him. (Titus v. Superior Court, supra, 23 Cal. App.3d 792, 799; Schoch v. Superior Court (1970) 11 Cal. App.3d 1200, 1207 [90 Cal. Rptr. 365].) (4) In order to secure personal jurisdiction over a nonresident defendant by service of summons by mail outside California, the trial court must have power to exercise such jurisdiction under section 410.10 of the Code of Civil Procedure which provides: “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” This section includes all the recognized bases of judicial jurisdiction (Quattrone v. Superior Court (1975) 44 Cal. App.3d 296, 302 [118 Cal. Rptr. 548]; Judicial Council comment to Code Civ. Proc., § 410.10, 14 West's Ann. Code Civ. Proc. (1973 ed.) p. 459) and manifests an intent that the courts of California utilize all such bases, limited only by constitutional considerations. (Sibley v. Superior Court (1976) 16 Cal.3d 442, 445 [128 Cal. Rptr. 34, 546 P.2d 322].)

      (5) As we explained in Sibley, “One of the recognized bases for jurisdiction in California arises when the defendant has caused an ‘effect’ in the state by an act or omission which occurs elsewhere.” (16 Cal.3d at p. 445; see also Judd v. Superior Court (1976) 60 Cal. App.3d 38, 43 [131 Cal. Rptr. 246]; Quattrone v. Superior Court, supra, 44 Cal. App.3d 296, 304–306; Titus v. Superior Court, supra, 23 Cal. App.3d 792, 801–802.) It is at once apparent that the potential scope of this basis of jurisdiction is almost unlimited since any act or omission of a defendant anywhere in the world causing an “effect” in California could theoretically subject him to in personam jurisdiction in California. If this theory of jurisdiction were carried out to its full extremes, it is obvious that it would discourage those outside California from having any contacts or relations with persons living in our state. It has therefore been recognized that the mere causing of an effect in California is not necessarily sufficient to supply a constitutional basis for jurisdiction. “A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an omission or act done elsewhere with respect to causes of action arising from these effects, unless the nature of the effects and of the individual's relationship to the state make the exercise of such jurisdiction unreasonable.” (Judicial Council comment to Code Civ. Proc., § 410.10, 14 West's Ann. Code Civ. Proc. (1973 ed.) p. 472.) In Sibley, after alluding to the principles set forth by the United States Supreme Court in International Shoe v. Washington (1945) 326 U.S. 310, 316–317 [90 L.Ed. 95, 101–103, 66 S.Ct. 154, 161 A.L.R. 1057], and in Hanson v. Denckla (1958) 357 U.S. 235, 253 [2 L.Ed.2d 1283, 1297, 78 S.Ct. 1228], we attempted to distill the criteria for determining whether or not the exercise of jurisdiction over a nonresident on this basis was reasonable. We emphasized the importance of a showing on the record that the nonresident “purposefully availed himself of the privilege of conducting business in California or of the benefits and protections of California laws … [or] anticipated that he would derive any economic benefit as a result of his” act outside of California. (16 Cal.3d at p. 447.) We conclude therefore that once it has been established that a nonresident defendant has caused an effect in this state by an act or omission elsewhere, the reasonableness of exercising personal jurisdiction over him on this basis may be determined according to the above criteria.

      In the case at bench, we are called upon to apply the foregoing principles to an important area of family law, namely acts or omissions by nonresident parents outside of California which affect their children, and their relationship with their children, who are physically present in California. Initially we observe that probably no parental act more fully invokes the benefits and protections of California law than that by which a parent permits his minor child to live in California. The parent thereby avails himself of the total panoply of the state's laws, institutions and resources — its police and fire protection, its school system, its hospital services, its recreational facilities, its libraries and museums, to mention only a few. (6) Therefore, we start with the premise that a nonresident parent who allows his minor child or children to reside in California has by that act purposely availed himself of the benefits and protections of the laws of California to such an extent that absent unusual circumstances or countervailing public policies such act would support personal jurisdiction over the nonresident parent for actions concerning the support of these children.

      Two recent opinions by the Courts of Appeal have identified strong public policies affecting the reasonableness of asserting personal jurisdiction over nonresident parents of children physically present in the state. In Titus v. Superior Court, supra, 23 Cal. App.3d 792, 803, the court said: “It is a strong policy of the law to encourage the visitation of children with their parents. Such a policy should be fostered rather than thwarted.” In Judd v. Superior Court, supra, 60 Cal. App.3d 38, 45, a different appellate district declared: “It should be a matter of strong public policy to encourage the payment of support and communication between a natural father and his children, not to discourage the same by subjecting the father to the expense and inconvenience of relitigating this matter of support in our state.” In each case the Court of Appeal, upon application of these strong public policies to the particular facts before it, concluded that it would be unreasonable to impose personal jurisdiction.

      In Titus, the father, who had custody of the children under a Massachusetts divorce decree, sent the children to California to visit their mother for the summer, pursuant to a subsequent written custody agreement. The agreement specified that the children were to be returned to the father in Massachusetts by the end of August. The mother, in breach of the agreement, retained the children and brought an action in California to establish the foreign divorce decree as a judgment, to obtain custody of the children and to secure support payments from the father. While the father may have in a sense purposely availed himself of the benefits and protections of the laws of California by sending his children here, his purpose was merely to have them visit their mother for a limited time and in compliance with the written agreements between the parents, which also provided for child support payments by him to the mother during the visit. It was clear that the purpose of the father's act was supported by a strong policy of the law which would be thwarted if the parent thereby became subject to personal jurisdiction. “If a parent, who has custody of his children, is faced with the prospect of submitting himself to the jurisdiction of another state by the mere act of sending his children to that state for the purpose of visiting with the other parent, it is reasonable to assume that he would refrain from doing so rather than running such risk, particularly in view of the inconvenience and costs attendant to litigating in another state.” (23 Cal. App.3d at p. 803.)

      In Judd, the parties had lived in New York and Connecticut until their separation. They entered into a written separation agreement and the wife then obtained a Mexican divorce decree which incorporated the terms of the separation agreement. She then moved to California with the minor children of whom she had custody. The father never resided in California but visited the children there and, pursuant to their agreement, sent the mother spousal and child support payments. Ten years after her Mexican divorce, the mother filed a petition for dissolution of marriage in California, seeking among other things custody of the children and spousal and child support. The Court of Appeal issued a writ of mandate directing the quashing of the service of summons on the father insofar as the summons purported to exercise personal jurisdiction over the father for spousal and child support. In Judd the father had not purposely availed himself of the protections and benefits of the laws of California since he had never had custody of the children and had not sent them to California. The Court of Appeal concluded that it would be neither fair nor reasonable to hold that this state acquired jurisdiction over the father merely because he sent support payments to California, communicated with his children by mail or telephone, and visited them here, since to do so would thwart the public policy of encouraging a parent's support of, and communication with his children.

      (7) In the case at bench, defendant sent Ilsa to California in December 1973 to visit her mother for the Christmas vacation in accordance with terms of the separation agreement incorporated in the divorce decree. Under Titus it is clear that this act in itself would not confer jurisdiction over defendant. At that time, however, defendant knew that Ilsa wanted to stay permanently with her mother in California and in apparent recognition of this desire he purchased for Ilsa only a one-way ticket and allowed her to take all her clothing. These facts would suggest that defendant at least contemplated surrendering custody of Ilsa to the mother in California and sent her to California with an apparent intention of allowing her to remain and thereafter reside permanently there. This intention was finalized in 1974 when Ilsa returned to New York to spend the summer with defendant. At the end of the summer, he bought her a ticket to return to California to live with her mother for the school year. The same procedure was repeated in the summer of 1975. Thus it is clear that defendant actively and fully consented to Ilsa living in California for the school year and that he twice sent her to California for that purpose. Here, unlike Titus, defendant did not send Ilsa to California for a mere temporary visit, but for permanent residence with plaintiff subject only to summer visits in New York. By doing so, defendant purposely availed himself of the full protection and benefit of California laws for the care and protection of Ilsa on a permanent basis. In view of the factor of Ilsa's permanent residence here, we apprehend no thwarting of the public policy supported by the Titus court.

      We deem it fair and reasonable to extend the jurisdiction of the courts of this state over defendant on the basis of his acts of sending Ilsa into this state to reside permanently with her mother. Not only has defendant by these acts availed himself of the full benefit and protection of the laws of this state, but he has also derived immediate economic benefit from them. Under the terms of the decree, he had custody of Ilsa and was liable for her support while she lived with him. He paid support to the mother under the decree only for the summer, Christmas and Easter vacations. Therefore, by allowing the child to live with the mother throughout the school year, he was no longer liable for the child's support for that period — a clear economic benefit.

      (8) We observe, however, that while defendant's acts with respect to Ilsa form a basis to confer personal jurisdiction over him, he has not by any act or omission outside California with respect to his other child, Darwin, caused an effect in this state which independently of the foregoing considerations would confer such jurisdiction. It will be recalled that Darwin came to California to live permanently with his mother at his own request, by an airplane ticket paid for and sent to him by his mother, and without defendant's knowledge. It would appear that subsequently defendant consented to this fait accompli in that he has not undertaken any action to retrieve the child and has even indicated his assent to this state of affairs by letter. Nevertheless, although he has consented to Darwin's permanent residence in California, and he will thereby derive economic benefit by no longer being liable for Darwin's support throughout the school year, the fact remains that he at no time undertook any affirmative act to purposely avail himself of the benefit and protection of the laws and institutions of this state. He did not send Darwin to California, nor indeed know of the latter's departure from New York beforehand. Therefore, under the principles set forth above, defendant would not have been subject to jurisdiction in personam in California for Darwin's support, if Darwin were the sole child of the parties.

      (9) Nonetheless, we conclude that this fact does not deprive the court of personal jurisdiction over defendant for the support of both children since the support of both is presented as a single issue in the underlying action. The separation agreement, which was incorporated into the Haitian decree sought to be established as a judgment of this state, provided for the payment of $3,000 annually for the support of both children. The complaint seeks support for both children. Defendant's motion to quash and supporting affidavits assert lack of jurisdiction over both children. We deem it fair and reasonable for defendant to be subject to personal jurisdiction for the support of both children, where he has committed acts with respect to one child which confers personal jurisdiction and has consented to the permanent residence of the other child in California.[2]

      The alternative writ of mandate is discharged and the petition for a peremptory writ is denied.

      Tobriner, Acting C.J., Mosk, J., and Wright, J.,[*] concurred.

      RICHARDSON, J.

      I respectfully dissent. In my view, it is unreasonable to subject petitioner to the jurisdiction of the California courts under the circumstances in this case. Petitioner's contacts with this state are far too minimal to justify in personam jurisdiction on any of the accepted and recognized bases.

      It is uncontradicted that petitioner has never resided in California and has had only two brief, isolated contacts with the state during his entire life. He is a resident of New York, the site of the marital domicile, and he has no business interests in California. As the majority indicates, after the parties separated respondent wife obtained a divorce in Haiti and moved to California where, pursuant to agreement with petitioner, she visited with the children during the summer and holidays. Petitioner maintained custody of the children in New York during the school year.

      According to respondent's affidavit in opposition to petitioner's motion to quash, in December 1973 “Ilsa told her father before she left for Christmas vacation that she wanted to live with her mother now.” Petitioner allegedly acceded to Ilsa's announcement, bought her a one-way air ticket to California, and since that time has seen Ilsa in New York only during the summers. As for son Darwin, respondent, in her affidavit, alleged that in January 1976 Darwin called her and told her he wanted to come to San Francisco to live, that she sent him a plane ticket, and that he (and Ilsa) presently live with respondent in California. (We may assume the truth of the foregoing allegations, although it is noteworthy that petitioner's own affidavit alleged that respondent induced both Ilsa and Darwin to leave New York without petitioner's knowledge or consent.)

      I have no quarrel with the majority's statement of general legal principles, derived primarily from our recent decision in Sibley v. Superior Court (1976) 16 Cal.3d 442 [128 Cal. Rptr. 34, 546 P.2d 322], and cases cited therein. As Sibley explains, however, “The mere causing of an ‘effect’ in California, … is not necessarily sufficient to afford a constitutional basis for jurisdiction; notwithstanding this ‘effect,’ the imposition of jurisdiction may be ‘unreasonable.’” (P. 446.) In determining whether or not to impose jurisdiction, Sibley explains that it is necessary for the court to ascertain whether the defendant “‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” (P. 447, italics added.) In Sibley, we were quoting from the leading Supreme Court opinion in Hanson v. Denckla (1958) 357 U.S. 235, 253 [2 L.Ed.2d 1283, 1297, 78 S.Ct. 1228], which expressed as follows the controlling principle relevant to our determination: “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

      Noting that the nonresident's conduct must be “purposeful,” I disagree with the majority's application of the foregoing principles to the particular facts of this case. As to Ilsa, the majority describes petitioner's conduct as “actively and fully consent[ing] to Ilsa living in California” subject only to summer visits in New York, and holds that such conduct constitutes sufficient ground upon which to confer personal jurisdiction over petitioner. In the majority's eyes, petitioner “purposely availed himself of the full protection and benefit of California laws for the care and protection of Ilsa on a permanent basis.” (Ante, p. 524.) If, however, we are to give any reasonable meaning to the phrase “purposely availed,” the record before us discloses no evidentiary support whatever, even if we disregard petitioner's recitation of events and accept respondent's version. Petitioner may have purchased Ilsa's air passage to California, but my reading of the record indicates no purposeful conduct by him which reasonably can be said to invoke the benefits and protections of California laws, thereby conferring in personam jurisdiction over him. At best, petitioner passively acquiesced in his teenaged daughter's unilateral decision to live in California.

      The majority reasons, without citation of supporting authorities, that whenever a parent “permits” his minor child to reside in California, the parent thereby “avails himself of the total panoply of the state's laws, institutions and resources….” (Ante, p. 522.) Yet, can such an act of acquiescence fairly and realistically be viewed as “purposeful” conduct? According to respondent, Ilsa “told” petitioner that she was going to live with respondent in California. Petitioner's unresisting assent to Ilsa's decision discloses no intent on his part, purposeful or otherwise, to enjoy the “panoply” of California's resources.

      If, however, petitioner's actions with respect to Ilsa can be rationalized as “purposeful conduct,” there is no basis on which to support in personam jurisdiction over petitioner as to Darwin. The record reveals that, as to his son, petitioner has done absolutely nothing which can be said to have caused an effect in California. Darwin came to live in California at his own request and without petitioner's knowledge. Petitioner neither knew of, nor lifted a finger to assist, Darwin's flight to California. His airplane ticket was paid for by respondent. All that can be said is that when petitioner learned of the development he passively accepted a situation not of his own making. He took no action, direct or indirect, to invoke the protections of California's laws. Under such circumstances, no basis exists in this record upon which to impose in personam jurisdiction over petitioner as to Darwin.

      The majority's imposition of in personam jurisdiction over absent parents under circumstances such as here presented may well conflict with the “strong” public policy which California courts have asserted favoring the visitation of children with their parents, and encouraging cooperation between parents. (See Judd v. Superior Court (1976) 60 Cal. App.3d 38, 45 [131 Cal. Rptr. 246]; Titus v. Superior Court (1972) 23 Cal. App.3d 792, 803 [100 Cal. Rptr. 477].) The rule announced by the majority may encourage a divorced parent such as petitioner to forbid or physically prevent his or her children from visiting a California parent, lest in personam jurisdiction be thereby conferred over the nonresident parent. Such parents may well become extremely guarded and cautious when they suspect that a child's change of residence is contemplated or effected, either unilaterally or with the connivance of the California parent. Prudent nonresident parents may simply refuse all cooperation and visitation whatever, thus contravening well established public policies.

      Finally, were we to hold that petitioner's contacts in California were insufficient to justify imposition of in personam jurisdiction over him, respondent would not be rendered wholly remediless. No reason appears of record why respondent could not retain New York counsel to pursue the action against petitioner in the state where he resides.

      I would issue the writ.

      Clark, J., concurred.

      [*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

      [1] “‘;An appellate court will not disturb the implied findings of fact made by a trial court in support of an order, any more than it will interfere with express findings upon which a final judgment is predicated. When the evidence is conflicting, it will be presumed that the court found every fact necessary to support its order that the evidence would justify. So far as it has passed on the weight of evidence or the credibility of witnesses, its implied findings are conclusive. This rule is equally applicable whether the evidence is oral or documentary. In the consideration of an order made on affidavits involving the decision of a question of fact, the appellate court is bound by the same rule as where oral testimony is presented for review.’ [Citations.] When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.” (Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 507–508 [289 P.2d 476, 47 A.L.R.2d 1349]; see also Lynch v. Spilman (1967) 67 Cal.2d 251, 259 [62 Cal. Rptr. 12, 431 P.2d 636]; Doak v. Bruson (1907) 152 Cal. 17, 19 [91 P. 1001]; Detsch & Co. v. Calbar, Inc. (1964) 228 Cal. App.2d 556, 563 [39 Cal. Rptr. 626]; DeWit v. Glazier (1957) 149 Cal. App.2d 75, 81–82 [307 P.2d 1031].)

      [2] To the extent that Starr v. Starr (1953) 121 Cal. App.2d 633 [263 P.2d 675], is inconsistent with the views expressed in this opinion, it is disapproved.

      [*] Retired Chief Justice of California sitting under assignment by the Acting Chairman of the Judicial Council.

      Shared Personal Property: Implied Agreements: Carlson v. Olson (1977)

      Editor's note: An implied agreement to share property was upheld by a Minnesota court based on the conduct of the unmarried parties who held themselves out as man and wife over 21 years.The Supreme Court of Minnesota here considers the case of an unmarried couple living as husband and wife for 21 years. Minnesota does not recognize common-law marriage (since its abolition in 1941), complicating the division of property upon the dissolution of the couple's relationship. The trial court awarded each of them half of their property, which the man appealed on the grounds that he had provided most of the household income and paid for improvements on the couple's home. Without the doctrine of common law marriage, the court is left to “creative application of … equitable principles.”

      256 N.W.2d 249 (1977)

      Laura J. CARLSON, Respondent,

      v.

      Oral A. OLSON, Appellant. No. 47099.

      Supreme Court of Minnesota.

      May 13, 1977.

      Arthur Chapman & Michaelson and Lindsay G. Arthur, Jr., Minneapolis, for appellant.

      John P. Weber, Grand Rapids, for respondent.

      Heard before ROGOSHESKE, KELLY and YETKA, JJ., and considered and decided by the court en banc.

      YETKA, Justice.

      The respondent brought an action to partition the real and personal property accumulated during a 21-year period when the parties lived together without being married, but holding themselves out to the public as in fact married. The District Court, Itasca County, allowed the partition and allotted a one-half interest in the property to each party. The appellant appeals the order of the trial court so finding. We affirm.

      This appeal raises the issue of the assertion of property rights based on nonmarital domestic relationships entered into since the prospective abolition of the doctrine of common-law marriage in Minnesota in 1941.

      The appellant Oral Olson and the respondent Laura Carlson began to live together as husband and wife in October of 1955. At the time she was 22, he was 31. They lived together for 21 years, raised a son to majority, and acquired a modest home and some personal property. They did not, however, ever legally marry, although they held themselves out to neighbors, friends, relatives, and the public as husband and wife. During the relationship she did not work outside the home. In 1974, differences arose between the parties. She no longer wanted to reside with him and desired a share of the property. To accomplish this, she brought an action to partition their real and personal property.

      The parties' home was purchased in August of 1959. The appellant supplied the $900 down payment. Both parties executed a mortgage in the sum of $16,000. The deed listed them as “husband and wife” and as joint tenants. During their cohabitation he supplied all of the actual monies for the acquisition and improvement of the real estate, the personal property located thereon and the personal effects of the parties, with the exception of $1,000 supplied by her mother for a remodeling project. The present value of the real estate is approximately $40,000, less a mortgage of $11,628.64. Personal property includes furniture, furnishings, an automobile, a boat, motor, and trailer, and other miscellaneous items. Except for the mortgage, the parties are debt free. Both are now employed and self-sufficient. In response to the action for partition, the appellant counter-claimed for 17 years rent at $200 a month, $20,000 for improvements to the property, a judgment that he was the fee owner of the real estate, and ejectment of her from the real estate.

      The trial court allowed the action for partition and held the commencement of the action effected a severance of an existing joint tenancy in the real estate and existing personal property. Each party was allotted a 50-percent interest. Although the appellant claimed a credit for the value of the improvements on the property which were paid for with his earnings, the trial court held the entire half share of the property constituted an irrevocable gift to the respondent in consideration for the wifely and motherly services she performed during the period of their cohabitation. The doctrine of common-law marriage would have covered the parties here;[1] however, its demise as a legal entity left a void and necessitates the creative application of traditional common-law and equitable principles to this situation. The elimination of common-law marriage obviously did not eliminate the institution, but only the rules which must be applied to it.

      The elimination of common-law marriage generally left the parties open to the possible application of three legal doctrines:

      “First, cohabitation between the parties to an express or implied contract might serve to render the contract illegal and, as a consequence, unenforceable.

      “Second, doctrines generally applicable to arm's length business transactions were consulted, rather than those ordinarily used in noncommercial contexts.

      “Third, courts refused to assign any economic value to the granting of personal services.” See, Bruch, Property Rights of Defacto Spouses Including Thoughts on the Value of Homemakers' Services, 10 Family Law Quarterly 101, 106.

      See, generally, id.; Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 Calif.L.Rev. 1169.

      By express acknowledgment or by necessary implication the arguments advanced by the parties in the instant case center on these three points. The appellant in effect argues all three. He argues the parties should be left as the court found them, in effect, as “pari delicto” (point 1), and places principal reliance on the application of market-place concepts to interpersonal dealings (point 2), and not placing an economic value on the personal services rendered by a de facto spouse (point 3). The argument is advanced that the cohabitation between the parties should not be a factor in the application of real property principles (point 2), and that the services by the respondent were rendered gratuitously (point 3). The appellant contends the trial court erred in applying more than the bare rules of real property to the parties. The appellant claims the cohabitation of the parties is irrelevant and that the proceeding be resolved solely pursuant to the law of real property, without any reference to the apparent marriage. Accordingly, it is his position that the respective interest of each party is determined by comparing the amount paid by each to the entire sum which was the consideration for the property. In particular, the appellant assails the finding by the trial court that the respondent's contributions or services were equal in value to the contributions of the appellant.

      On the other hand, the respondent argues that “[t]he instant case cannot be resolved simply by the laws of real property as it would with strangers” (point 2), and that the respondent should be able to recover the value of her services (point 3). Accordingly, she argues that the law of real property alone is insufficient to resolve the dispute in an equitable manner and that the cohabitation should be acknowledged as affecting the ultimate distribution of property.

      The resolution of these three areas of general dispute into a consistent weave has been a difficult one for the courts for many years. See, Evans, Property Interests Arising from Quasi-Marital Relations, 9 Cornell L.Q. 246; Annotation, 31 A.L.R.2d 1255. The Minnesota law following the prospective abolition of common-law marriages offers few guidelines. One of the few cases to involve the question was Baker v. Baker, 222 Minn. 169, 23 N.W.2d 582 (1946). In that case the plaintiff brought an action claiming to be the common-law wife of the defendant and asked for a divorce and division of property. The plaintiff claimed a common-law marriage existed in 1933; however, the trial court found that both parties knew the defendant did not receive a divorce from his first wife until 1942, a date after the outlawing of common-law marriages in Minnesota. On appeal, this court stated (222 Minn. 171, 23 N.W.2d 583):

      “The lower court found that plaintiff knew of defendant's prior marriage at the time the alleged common-law marriage commenced, and an examination of the record discloses ample evidence to support this conclusion. Where the arrangement under which the parties lived together was a meretricious one, the court will grant no relief. In re Brenchley's Estate, 96 Wash. 223, 164 P. 913, L.R.A.1917E, 968; In re Sloan's Estate, 50 Wash. 86, 96 P. 684, 17 L.R.A. (N.S.) 960. The element of good faith is controlling. Figoni v. Figoni, 211 Cal. 354, 295 P. 339; Schneider v. Schneider, 183 Cal. 335, 191 P. 533, 11 A.L.R. 1386. Further, in such a situation, there is no implied obligation on the part of the man to compensate the woman for household services rendered by her. Estate of Fox, 178 Wis. 369, 190 N.W. 90, 31 A.L.R. 420. The parties are left to resort to such action in regard to their property rights as they may be advised.” (Italics supplied.)

      The appellant argues Baker controls here. As pointed out by the trial court, however, Baker merely determined that a meretricious[2] relationship deprived the woman plaintiff of any right as a wife in property owned solely by the man defendant. Thus, the Baker case merely removed the statutory remedies prescribed in a divorce action as between persons who were never married. It did not prescribe what other remedies might be open to the parties for as the court noted in the final sentence of the opinion: “The parties are left to resort to such action in regard to their property rights as they may be advised.”

      Thus, present Minnesota law offers few hard guidelines.

      In December of 1976, however, the California Supreme Court handed down a decision applicable to this case: Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976). The case resolved each of the three problem areas in favor of the enforcement of such agreements and set forth numerous guiding principles for dealing with claims of property rights arising out of non-marital relationships. In the Marvin case itself the woman plaintiff averred in her complaint that she and the man defendant [Lee Marvin] “entered into an oral agreement” that while “the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined” and further that they agreed to “hold themselves out to the general public as husband and wife” and that “plaintiff would further render her services as a companion, homemaker, housekeeper and cook to * * * defendant.” In addition, the plaintiff alleged that she agreed to “give up her lucrative career as an entertainer [and] singer” to “devote her full time to defendant * * * as a companion, homemaker, housekeeper and cook,” and that the defendant in return agreed to “provide for all of plaintiff's financial support and needs for the rest of her life.” The plaintiff lived with the defendant for 5½ years and, she alleged, fulfilled her obligations under the agreement. At the end of that period the defendant compelled her to leave his household and continued to support her for an additional year and a half. Thereafter, he refused to provide further support and she brought suit asking for declaratory relief with respect to her contract and property rights and for a constructive trust to be imposed upon half the property acquired during the course of the relationship. After the trial court granted the defendant's motion for judgment on the pleadings, the plaintiff appealed.

      The California Supreme Court reversed and held the complaint stated a cause of action for breach of an express contract. The defendant had argued that the enforcement of the contract would violate public policy because it was so closely related to the “immoral” relationship of the parties; however, after a review of cases the court noted (18 Cal.3d 669, 134 Cal.Rptr. 821, 557 P.2d 112):

      “* * * The decisions instead disclose a narrower and more precise standard: a contract between nonmarital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious sexual services.” And in summary, stated (18 Cal.3d 674, 134 Cal.Rptr. 825, 557 P.2d 116):[3]

      “* * * [W]e base our opinion on the principle that adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services, for such a contract is, in essence, an agreement for prostitution and unlawful for that reason. But they may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property; conversely they may agree that each partner's earnings and the property acquired from those earnings remains the separate property of the earning partner. So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.” (Footnote omitted.)[4]

      The court then found that under the newly enunciated standard that the contract constituted an agreement to pool their earnings and thus did not rest upon any unlawful consideration and furnished a basis upon which the trial court could render declaratory relief.

      The court also went on to state that the plaintiff's complaint could be amended to state a cause of action founded upon theories of implied contract or equitable relief independent of any express contract, based on the reasonable expectations of the parties. In so doing, it noted with respect to contribution of services, a point at issue here, (18 Cal.3d 679, 134 Cal.Rptr. 828, 557 P.2d 119):

      “Still another inconsistency in the prior cases arises from their treatment of property accumulated through joint effort. To the extent that a partner had contributed funds or property, the cases held that the partner obtains a proportionate share in the acquisition, despite the lack of legal standing of the relationship. [Citation omitted.] Yet courts have refused to recognize just such an interest based upon the contribution of services. As Justice Curtis points out ‘Unless it can be argued that a woman's services as cook, housekeeper, and homemaker are valueless, it would seem logical that if, when she contributes money to the purchase of property, her interest will be protected, then when she contributes her services in the home, her interest in property accumulated should be protected.'”

      The court also stated that concepts of “guilt” did not justify an unequal division of property between two “guilty” persons[5] and that although the institution of marriage was one to be fostered the continuation of rules which resulted in inequitable distribution of property accumulated during a nonmarital relationship was neither a just nor an effective way of effecting that policy. Further, it noted (18 Cal.3d 682, 134 Cal.Rptr. 830, 557 P.2d 121):

      “* * * [A]lthough parties to a non-marital relationship obviously cannot have based any expectations upon the belief that they were married, other expectations and equitable considerations remain. The parties may well expect that property will be divided in accord with the parties’ own tacit understanding and that in the absence of such understanding the courts will fairly apportion property accumulated through mutual effort. We need not treat nonmarital partners as putatively married persons in order to apply principles of implied contract, or extend equitable remedies; we need to treat them only as we do any other unmarried persons.” (Footnote omitted.)

      Then, in summary with respect to implied contract or equitable relief (18 Cal.3d 684, 134 Cal. Rptr. 831, 557 P.2d 122):

      “We conclude that the judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a non-marital relationship should be removed. As we have explained, the courts now hold that express agreements will be enforced unless they rest on an unlawful meretricious consideration. We add that in the absence of an express agreement, the courts may look to a variety of other remedies in order to protect the parties' lawful expectations.

      “The courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement of partnership or joint venture (see Estate of Thornton (1972) 81 Wash.2d 72, 499 P.2d 864), or some other tacit understanding between the parties. The courts may, when appropriate, employ principles of constructive trust (see Omer v. Omer (1974) 11 Wash.App. 386, 523 P.2d 957) or resulting trust (see Hyman v. Hyman (Tex. Civ.App.1954) 275 S.W.2d 149). Finally, a nonmarital partner may recover in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received if he can show that he rendered services with the expectation of monetary reward. (See Hill v. Estate of Westbrook, supra, 39 Cal.2d 458, 462, 247 P.2d 19.)” (Footnotes omitted.)[6]

      The Marvin case thus stands for the following three principles, which the court itself enunciated as follows (18 Cal.3d 665, 134 Cal.Rptr. 819, 557 P.2d 110):

      “We conclude: (1) The provisions of the [divorce statutes] do not govern the distribution of property acquired during a nonmarital relationship; such a relationship remains subject solely to judicial decision. (2) The courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.”

      In the present case, the action for division of property following the termination of the relationship was brought as a partition action. The trial court allowed the respondent to partition both with respect to the personal and real property accumulated during the relationship and utilized its inherent equitable powers to allot the respective interests of the parties in the property. In short, the trial court enforced what the evidence indicates were the reasonable expectations of the parties. Under the facts of this case, the partition statute was an appropriate vehicle to do so. Equitable principles are applicable to supplement the partition statutes. Although the statutory procedure must be followed, once the court has taken jurisdiction of the case it may exercise its general equitable powers to effect the most advantageous plan which the nature of the particular case admits. The statute does not restrict equity's normal functions as an aid to complete justice. Swogger v. Taylor, 243 Minn. 458, 68 N.W.2d 376 (1955). There is no particular impediment to so doing here. Personal property generally may be the subject of a partition action. 59 Am.Jur.2d, Partition, § 162; 68 C.J.S. Partition § 24. The trial court found that the parties had lived together for over 21 years, had raised a son to maturity, and had held themselves out to the public as husband and wife. The home and some personal property were in joint tenancy. Thus, the trial court was justified in finding that on all the facts of this particular case the parties intended that their modest accumulations were to be divided on an equal basis on the theory of an irrevocable gift from Mr. Olson to respondent of those assets purchased solely with his earnings and that the contribution of respondent to the remodeling of the home was to be treated in the same manner.

      The trial court is affirmed in all respects.

      [1] Only common-law marriages contracted on or before April 26, 1941 are recognized as valid. Laws 1941, c. 459; Baker v. Baker, 222 Minn. 169, 23 N.W.2d 582 (1946). This requirement is currently codified in Minn.St. 517.01. For a good general discussion of common-law marriage in Minnesota prior to the statute, see Billig & Lynch, Common-Law Marriage in Minnesota: A problem in Social Security, 22 Minn. L.Rev. 177.

      [2] “Meretricious” spouse describes a relationship where the parties knew they were cohabitating without marriage. On the other hand, a “putative” spouse is one who in good faith believes they are married.

      [3] The court further noted in an accompanying footnote: “A great variety of other arrangements are possible. The parties might keep their earnings and property separate, but agree to compensate one party for services which benefit the other. They may choose to pool only part of their earnings and property, to form a partnership or joint venture, or to hold property acquired as joint tenants or tenants in common, or agree to any other such arrangement. (See generally Weitzman, Legal Regulation of Marriage: Tradition and Change (1974) 62 Cal.L.Rev. 1169.)” Marvin v. Marvin, 18 Cal.3d 660, 674, note 10, 134 Cal.Rptr. 815, 825, 557 P.2d 106, 116 (1976).

      [4] The court did note, however, that under the proper circumstances such an agreement might be invalid as an agreement to promote or encourage divorce. See, 18 Cal.3d 673, note 8, 134 Cal.Rptr. 824, 557 P.2d 115.

      [5] In a footnote the court stated: “Justice Finley of the Washington Supreme Court explains: ‘Under such circumstances [the dissolution of a nonmarital relationship], this court and the courts of other jurisdictions have, in effect, sometimes said, “We will wash our hands of such disputes. The parties should and must be left to their own devices, just where they find themselves.” To me, such pronouncements seem overly fastidious and a bit fatuous. They are unrealistic and, among other things, ignore the fact that an unannounced (but nevertheless effective and binding) rule of law is inherent in any such terminal statements by a court of law. The unannounced but inherent rule is simply that the party who has title, or in some instances who is in possession, will enjoy the rights of ownership of the property concerned. The rule often operates to the great advantage of the cunning and the shrewd, who wind up with possession of the property, or title to it in their names, at the end of a so-called meretricious relationship. So, although the courts proclaim that they will have nothing to do with such matters, the proclamation in itself establishes, as to the parties involved, an effective and binding rule of law which tends to operate purely by accident or perhaps by reason of the cunning, anticipatory designs of just one of the parties.’ (West v. Knowles (1957) 50 Wash.2d 311, 311 P.2d 689, 692 (conc. opn.).)” 18 Cal.3d 682, note 21, 134 Cal.Rptr. 830, 557 P.2d 121.

      [6] An excellent review of various remedies other than breach of express contract is found in Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers' Services, 10 Family Law Quarterly 101, 114. See, also, Folberg & Buren, Domestic Partnership: A Proposal for Dividing the Property of Unmarried Families, 12 Williamette L.J. 453.

      Property Division: Professional Degrees: In re Marriage of Graham (1978)

      Editor's note: The Supreme Court of Colorado ruled that a professional degree or license is not property and therefore not divisible. However, in many cases, restitution is often granted for the spousal investment in the attainment of the degree or license. The division of property following a divorce may sometimes include intangible assets; for example, intellectual property, such as patents and copyrights to creative works, may need to be valued. In this Colorado case, the state Supreme Court settled the issue of whether a professional degree constituted property (which, being nontransferable, would need to be valued in order to compensate the other spouse with other property). The justification offered by the spouse arguing in favor is reasonable: while her husband earned his graduate degree, she worked full time to pay most of the household bills, and upon the dissolution of their marriage, he was in possession of an asset that she helped to pay for.

      574 P.2d 75 (1978)

      In re the MARRIAGE OF Anne P. GRAHAM, Petitioner, and Dennis J. Graham, Respondent.

      No. C-1054.

      Supreme Court of Colorado, En Banc.

      January 9, 1978.

      Rehearing Denied February 21, 1978.

      Williams, Trine & Greenstein, P. C., Charles E. Williams, Lee D. Warkentine, Boulder, for petitioner.

      Donald S. Molen, Denver, for respondent.

      LEE, Justice.

      This case presents the novel question of whether in a marriage dissolution proceeding a master's degree in business administration (M.B.A.) constitutes marital property which is subject to division by the court. In its opinion in Graham v. Graham, Colo. App., 555 P.2d 527, the Colorado Court of Appeals held that it was not. We affirm the judgment.

      The Uniform Dissolution of Marriage Act requires that a court shall divide marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors. The Act defines marital property as follows:

      “For purposes of this article only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:

      “(a) Property acquired by gift, bequest, devise, or descent;

      “(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

      “(c) Property acquired by a spouse after a decree of legal separation; and

      “(d) Property excluded by valid agreement of the parties.”

      Section 14-10-113(2), C.R.S.1973.

      The parties to this proceeding were married on August 5, 1968, in Denver, Colorado. Throughout the six-year marriage, Anne P. Graham, wife and petitioner here, was employed full-time as an airline stewardess. She is still so employed. Her husband, Dennis J. Graham, respondent, worked part-time for most of the marriage, although his main pursuit was his education. He attended school for approximately three and one-half years of the marriage, acquiring both a bachelor of science degree in engineering physics and a master's degree in business administration at the University of Colorado. Following graduation, he obtained a job as an executive assistant with a large corporation at a starting salary of $14,000 per year.

      The trial court determined that during the marriage petitioner contributed seventy percent of the financial support, which was used both for family expenses and for her husband's education. No marital assets were accumulated during the marriage. In addition, the Grahams together managed an apartment house and petitioner did the majority of housework and cooked most of the meals for the couple. No children were born during the marriage.

      The parties jointly filed a petition for dissolution, on February 4, 1974, in the Boulder County District Court. Petitioner did not make a claim for maintenance or for attorney fees. After a hearing on October 24, 1974, the trial court found, as a matter of law, that an education obtained by one spouse during a marriage is jointly-owned property to which the other spouse has a property right. The future earnings value of the M.B.A. to respondent was evaluated at $82,836 and petitioner was awarded $33,134 of this amount, payable in monthly installments of $100.

      The court of appeals reversed, holding that an education is not itself “property” subject to division under the Act, although it was one factor to be considered in determining maintenance or in arriving at an equitable property division.

      I.

      The purpose of the division of marital property is to allocate to each spouse what equitably belongs to him or her. See H. Clark, Domestic Relations § 14.8. The division is committed to the sound discretion of the trial court and there is no rigid mathematical formula that the court must adhere to. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006; Greer v. Greer, 32 Colo.App. 196, 510 P.2d 905. An appellate court will alter a division of property only if the trial court abuses its discretion. This court, however, is empowered at all times to interpret Colorado statutes.

      The legislature intended the term “property” to be broadly inclusive, as indicated by its use of the qualifying adjective “all” in section 14-10-113(2). Previous Colorado cases have given “property” a comprehensive meaning, as typified by the following definition: “In short it embraces anything and everything which may belong to a man and in the ownership of which he has a right to be protected by law.” Las Animas County High School District v. Raye, 144 Colo. 367, 356 P.2d 237.

      Nonetheless, there are necessary limits upon what may be considered “property,” and we do not find any indication in the Act that the concept as used by the legislature is other than that usually understood to be embodied within the term. One helpful definition is “everything that has an exchangeable value or which goes to make up wealth or estate.” Black's Law Dictionary 1382 (rev. 4th ed. 1968). In Ellis v. Ellis, Colo., 552 P.2d 506, this court held that military retirement pay was not property for the reason that it did not have any of the elements of cash surrender value, loan value, redemption value, lump sum value, or value realizable after death. The court of appeals has considered other factors as well in deciding whether something falls within the concept, particularly whether it can be assigned, sold, transferred, conveyed, or pledged, or whether it terminates on the death of the owner. In re Marriage of Ellis, 36 Colo.App. 234, 538 P.2d 1347, aff'd, Ellis v. Ellis, supra.

      An educational degree, such as an M.B.A., is simply not encompassed even by the broad views of the concept of “property.” It does not have an exchange value or any objective transferable value on an open market. It is personal to the holder. It terminates on death of the holder and is not inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An advanced degree is a cumulative product of many years of previous education, combined with diligence and hard work. It may not be acquired by the mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view, it has none of the attributes of property in the usual sense of that term.

      II.

      Our interpretation is in accord with cases in other jurisdictions. We have been unable to find any decision, even in community property states, which appears to have held that an education of one spouse is marital property to be divided on dissolution. This contention was dismissed in Todd v. Todd, 272 Cal.App.2d 786, 78 Cal. Rptr. 131 (Ct.App.), where it was held that a law degree is not a community property asset capable of division, partly because it “cannot have monetary value placed upon it.” Similarly, it has been recently held that a person's earning capacity, even where enhanced by a law degree financed by the other spouse, “should not be recognized as a separate, particular item of property.” Stern v. Stern, 66 N.J. 340, 331 A.2d 257.

      Other cases cited have dealt only with related issues. For example, in awarding alimony, as opposed to dividing property, one court has found that an education is one factor to be considered. Daniels v. Daniels, 20 Ohio Op.2d 458, 185 N.E.2d 773 (Ct.App.). In another case, the wife supported the husband while he went to medical school. Nail v. Nail, 486 S.W.2d 761 (Tex.). The question was whether the accrued good will of his medical practice was marital property, and the court held it was not, inasmuch as good will was based on the husband's personal skill, reputation, and experience. Contra, Mueller v. Mueller, 144 Cal.App.2d 245, 301 P.2d 90; see Annot., 52 A.L.R.3d 1344.

      III.

      The trial court relied on Greer v. Greer, 32 Colo.App. 196, 510 P.2d 905, for its determination that an education is “property.” In that case, a six-year marriage was dissolved in which the wife worked as a teacher while the husband obtained a medical degree. The parties had accumulated marital property. The trial court awarded the wife alimony of $150 per month for four years. The court of appeals found this to be proper, whether considered as an adjustment of property rights based upon the wife's financial contribution to the marriage, or as an award of alimony in gross. The court there stated that “* * * [i]t must be considered as a substitute for, or in lieu of, the wife's rights in the husband's property * * *.” We note that the court did not determine that the medical education itself was divisible property. The case is distinguishable from the instant case in that here there was no accumulation of marital property and the petitioner did not seek maintenance [alimony].

      IV.

      A spouse who provides financial support while the other spouse acquires an education is not without a remedy. Where there is marital property to be divided, such contribution to the education of the other spouse may be taken into consideration by the court. Greer v. Greer, supra. See also Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006. Here, we again note that no marital property had been accumulated by the parties. Further, if maintenance is sought and a need is demonstrated, the trial court may make an award based on all relevant factors. Section 14-10-114(2). Certainly, among the relevant factors to be considered is the contribution of the spouse seeking maintenance to the education of the other spouse from whom the maintenance is sought. Again, we note that in this case petitioner sought no maintenance from respondent.

      The judgment is affirmed.

      PRINGLE, C. J., and GROVES and CARRIGAN, JJ., dissent.

      CARRIGAN, Justice, dissenting:

      I respectfully dissent.

      As a matter of economic reality the most valuable asset acquired by either party during this six-year marriage was the husband's increased earning capacity. There is no dispute that this asset resulted from his having obtained Bachelor of Science and Master of Business Administration degrees while married. These degrees, in turn, resulted in large part from the wife's employment which contributed about 70% of the couple's total income. Her earnings not only provided her husband's support but also were “invested” in his education in the sense that she assumed the role of breadwinner so that he would have the time and funds necessary to obtain his education.

      The case presents the not-unfamiliar pattern of the wife who, willing to sacrifice for a more secure family financial future, works to educate her husband, only to be awarded a divorce decree shortly after he is awarded his degree. The issue here is whether traditional, narrow concepts of what constitutes “property” render the courts impotent to provide a remedy for an obvious injustice.

      In cases such as this, equity demands that courts seek extraordinary remedies to prevent extraordinary injustice. If the parties had remained married long enough after the husband had completed his post-graduate education so that they could have accumulated substantial property, there would have been no problem. In that situation abundant precedent authorized the trial court, in determining how much of the marital property to allocate to the wife, to take into account her contributions to her husband's earning capacity. Greer v. Greer, 32 Colo.App. 196, 510 P.2d 905 (1973) (wife supported husband through medical school); In re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976) (wife was breadwinner while husband was in law school).

      A husband's future income earning potential, sometimes as indicated by the goodwill value of a professional practice, may be considered in deciding property division or alimony matters, and the wife's award may be increased on the ground that the husband probably will have substantial future earnings. Todd v. Todd, 272 Cal.App.2d 786, 78 Cal.Rptr. 131 (1969) (goodwill of husband's law practice); Golden v. Golden, 270 Cal.App.2d 401, 75 Cal.Rptr. 735 (1969) (goodwill of husband's medical practice); Mueller v. Mueller, 144 Cal.App.2d 245, 301 P.2d 90 (1956) (goodwill of husband's dental lab); In re Marriage of Goger, 27 Or.App. 729, 557 P.2d 46 (1976) (potential earnings of husband's dental practice); In re Marriage of Lukens, 16 Wash. App. 481, 558 P.2d 279 (1976) (goodwill of husband's medical practice indicated future earning capacity).

      Similarly, the wife's contributions to enhancing the husband's financial status or earning capacity have been considered in awarding alimony and maintenance. Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946). The majority opinion emphasizes that in this case no maintenance was requested. However, the Colorado statute would seem to preclude an award of maintenance here, for it restricts the court's power to award maintenance to cases where the spouse seeking it is unable to support himself or herself. Section 14-10-114, C.R. S.1973.

      While the majority opinion focuses on whether the husband's master's degree is marital “property” subject to division, it is not the degree itself which constitutes the asset in question. Rather it is the increase in the husband's earning power concomitant to that degree which is the asset conferred on him by his wife's efforts. That increased earning capacity was the asset appraised in the economist's expert opinion testimony as having a discounted present value of $82,000.

      Unquestionably the law, in other contexts, recognizes future earning capacity as an asset whose wrongful deprivation is compensable. Thus one who tortiously destroys or impairs another's future earning capacity must pay as damages the amount the injured party has lost in anticipated future earnings. Nemer v. Anderson, 151 Colo. 411, 378 P.2d 841 (1963); Abram, Personal Injury Damages in Colorado, 35 Colo. L.Rev. 332, 338 (1963).

      Where a husband is killed, his widow is entitled to recover for loss of his future support damages based in part on the present value of his anticipated future earnings, which may be computed by taking into account probable future increases in his earning capacity. See United States v. Sommers, 351 F.2d 354 (10th Cir. 1965); Good v. Chance, Colo.App., 565 P.2d 217 (1977). See also Colo.J.I. (Civil) 10:3.

      The day before the divorce the wife had a legally recognized interest in her husband's earning capacity. Perhaps the wife might have a remedy in a separate action based on implied debt, quasi-contract, unjust enrichment, or some similar theory. See, e.g., Dass v. Epplen, 162 Colo. 60, 424 P.2d 779 (1967). Nevertheless, the law favors settling all aspects of a dispute in a single action where that is possible. Therefore I would affirm the trial court's award.

      I am authorized to state that Mr. Chief Justice PRINGLE and Mr. Justice GROVES join in this dissent.

      Spousal Support: Payment to Wives but Not Husbands: Orr v. Orr (1979)

      Editor's note: A statute in Alabama imposing alimony payments on husbands and not wives was found to violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In much of the world, alimony payments are more often made to ex-wives than to ex-husbands. In some cases, this is because the husband was the primary earner in the household or because the ex-wife retains custody of the children and her expected earnings are impacted by her childcare obligations. In other cases, it is a matter of statute. In this decision, the U.S. Supreme Court ruled that statutes requiring alimony payments of only one sex are a violation of the Fourteenth Amendment'sEqual Protection Clause. The court's comments on underinclusivity are historically important in the understanding of said clause.

      440 U.S. 268 (1979)

      ORR

      v.

      ORR.

      No. 77-1119.

      Supreme Court of United States.

      Argued November 27, 1978.

      Decided March 5, 1979.

      APPEAL FROM THE COURT OF CIVIL APPEALS OF ALABAMA.

      John L. Capell III argued the cause and filed briefs for appellant.

      W. F. Horsley argued the cause and filed a brief for appellee.[*]

      MR. JUSTICE BRENNAN delivered the opinion of the Court.

      The question presented is the constitutionality of Alabama alimony statutes which provide that husbands, but not wives, may be required to pay alimony upon divorce.[1]

      On February 26, 1974, a final decree of divorce was entered, dissolving the marriage of William and Lillian Orr. That decree directed appellant, Mr. Orr, to pay appellee, Mrs. Orr, $1,240 per month in alimony. On July 28, 1976, Mrs. Orr initiated a contempt proceeding in the Circuit Court of Lee County, Ala., alleging that Mr. Orr was in arrears in his alimony payments. On August 19, 1976, at the hearing on Mrs. Orr's petition, Mr. Orr submitted in his defense a motion requesting that Alabama's alimony statutes be declared unconstitutional because they authorize courts to place an obligation of alimony upon husbands but never upon wives. The Circuit Court denied Mr. Orr's motion and entered judgment against him for $5,524, covering back alimony and attorney fees. Relying solely upon his federal constitutional claim, Mr. Orr appealed the judgment. On March 16, 1977, the Court of Civil Appeals of Alabama sustained the constitutionality of the Alabama statutes, 351 So. 2d 904. On May 24, the Supreme Court of Alabama granted Mr. Orr's petition for a writ of certiorari, but on November 10, without court opinion, quashed the writ as improvidently granted. 351 So. 2d 906. We noted probable jurisdiction, 436 U. S. 924 (1978). We now hold the challenged Alabama statutes unconstitutional and reverse.

      I

      We first address three preliminary questions not raised by the parties or the Alabama courts below, but which nevertheless may be jurisdictional and therefore are considered of our own motion.

      The first concerns the standing of Mr. Orr to assert in his defense the unconstitutionality of the Alabama statutes. It appears that Mr. Orr made no claim that he was entitled to an award of alimony from Mrs. Orr, but only that he should not be required to pay alimony if similarly situated wives could not be ordered to pay.[2] It is therefore possible that his success here will not ultimately bring him relief from the judgment outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands as well as wives. In that event, Mr. Orr would remain obligated to his wife. It is thus argued that the only “proper plaintiff” would be a husband who requested alimony for himself, and not one who merely objected to paying alimony.

      This argument quite clearly proves too much. In every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties (e. g., by repealing the statute as a whole). In this case, if held unconstitutional, the Alabama divorce statutes could be validated by, inter alia, amendments which either (1) permit awards to husbands as well as wives, or (2) deny alimony to both parties. It is true that under the first disposition Mr. Orr might gain nothing from his success in this Court, although the hypothetical “requesting” plaintiff would. However, if instead the State takes the second course and denies alimony to both spouses, it is Mr. Orr and not the hypothetical plaintiff who would benefit. Because we have no way of knowing how the State will in fact respond, unless we are to hold that underinclusive statutes can never be challenged because any plaintiff's success can theoretically be thwarted, Mr. Orr must be held to have standing here. We have on several occasions considered this inherent problem of challenges to underinclusive statutes, Stanton v. Stanton, 421 U. S. 7, 17 (1975); Craig v. Boren, 429 U. S. 190, 210 n. 24 (1976), and have not denied a plaintiff standing on this ground.

      There is no question but that Mr. Orr bears a burden he would not bear were he female. The issue is highlighted, although not altered, by transposing it to the sphere of race. There is no doubt that a state law imposing alimony obligations on blacks but not whites could be challenged by a black who was required to pay. The burden alone is sufficient to establish standing. Our resolution of a statute's constitutionality often does “not finally resolve the controversy as between th[e] appellant and th[e] appellee,” Stanton v. Stanton, 421 U. S., at 17. We do not deny standing simply because the “appellant, although prevailing here on the federal constitutional issue, may or may not ultimately win [his] lawsuit.” Id., at 18. The holdings of the Alabama courts stand as a total bar to appellant's relief; his constitutional attack holds the only promise of escape from the burden that derives from the challenged statutes. He has therefore “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which th[is] court so largely depends for illumination of difficult constitutional questions,” Linda R. S. v. Richard D., 410 U. S. 614, 616 (1973), quoting Baker v. Carr, 369 U. S. 186, 204 (1962). Indeed, on indistinguishable facts, this Court has stated that a party's standing will be sustained. In Linda R. S. v. Richard D., supra, at 619 n. 5 (MARSHALL, J.), we stated that the parent of a legitimate child who must by statute pay child support has standing to challenge the statute on the ground that the parent of an illegitimate child is not equally burdened.[3]

      A second preliminary question concerns the timeliness of appellant's challenge to the constitutionality of the statutes. No constitutional challenge was made at the time of the original divorce decree; Mr. Orr did not interpose the Constitution until his ex-wife sought a contempt judgment against him for his failure to abide by the terms of the decree. This unexcused tardiness might well have constituted a procedural default under state law, and if Alabama had refused to hear Mr. Orr's constitutional objection on that ground, we might have been without jurisdiction to consider it here. See C. Wright, Federal Courts 541–542 (3d ed. 1976).

      But in this case neither Mrs. Orr nor the Alabama courts at any time objected to the timeliness of the presentation of the constitutional issue. Instead, the Alabama Circuit and Civil Appeals Courts both considered the issue to be properly presented and decided it on the merits. See 351 So. 2d, at 905; App. to Juris. Statement 22a. In such circumstances, the objection that Mr. Orr's complaint “‘comes too late’… is clearly untenable…. [S]ince the state court deemed the federal constitutional question to be before it, we could not treat the decision below as resting upon an adequate and independent state ground even if we were to conclude that the state court might properly have relied upon such a ground to avoid deciding the federal question.” Beecher v. Alabama, 389 U. S. 35, 37 n. 3 (1967). This is merely an application of the “elementary rule that it is irrelevant to inquire … when a Federal question was raised in a court below when it appears that such question was actually considered and decided.” Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123, 134 (1914). Accord, Harlin v. Missouri, 439 U. S. 459 (1979); Jenkins v. Georgia, 418 U. S. 153, 157 (1974); Raley v. Ohio, 360 U. S. 423, 436 (1959). See C. Wright, supra, at 542.[4]

      The third preliminary question arises from indications in the record that Mr. Orr's alimony obligation was part of a stipulation entered into by the parties, which was then incorporated into the divorce decree by the Lee County Circuit Court. Thus, it may be that despite the unconstitutionality of the alimony statutes, Mr. Orr may have a continuing obligation to his former wife based upon that agreement—in essence a matter of state contract law.[5] If the Alabama courts had so held, and had anchored their judgments in this case on that basis, an independent and adequate state ground might exist and we would be without power to hear the constitutional argument. See Herb v. Pitcairn, 324 U. S. 117, 125–126 (1945); Fox Film Corp. v. Muller, 296 U. S. 207 (1935). And if there were ambiguity as to whether the State's decision was based on federal or state grounds, it would be open to this Court not to determine the federal question, but to remand to the state courts for clarification as to the ground of the decision. See California v. Krivda, 409 U. S. 33 (1972).

      But there is no ambiguity here. At no time did Mrs. Orr raise the stipulation as a possible alternative ground in support of her judgment. Indeed, her brief in the Alabama Court of Civil Appeals expressly stated that “[t]he appellee agrees that the issue before this Court is whether the Alabama alimony laws are unconstitutional because of the gender based classification made in the statutes.” App. to Juris. Statement 25a. The Alabama Circuit and Civil Appeals Courts reached and decided the federal question without considering any state-law issues, the latter specifying that “[t]he sole issue before this court is whether Alabama's alimony statutes are unconstitutional. We find they are not unconstitutional and affirm.” 351 So. 2d, at 905. While no reason was given by the State Supreme Court's majority for quashing the writ of certiorari, the concurring and dissenting opinions mention only the federal constitutional issue and do not mention the stipulation. See 351 So. 2d, at 906–910. And Mrs. Orr did not even raise the point in this Court. On this record, then, our course is clear and dictated by a long line of decisions.

      “Where the state court does not decide against a petitioner or appellant upon an independent state ground, but deeming the federal question to be before it, actually entertains and decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is a final judgment. We cannot refuse jurisdiction because the state court might have based its decision, consistently with the record, upon an independent and adequate non-federal ground.”

      Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 98 (1938).

      Accord, United Air Lines, Inc. v. Mahin, 410 U. S. 623, 630–631 (1973); Poafpybitty v. Skelly Oil Co., 390 U. S. 365, 375–376 (1968); Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 197 n. 1 (1944); International Steel & Iron Co. v. National Surety Co., 297 U. S. 657, 666 (1936); Grayson v. Harris, 267 U. S. 352, 358 (1925); Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 120 (1924); Rogers v. Hennepin County, 240 U. S. 184, 188–189 (1916). See C. Wright, Federal Courts, at 544.[6]

      Our analysis of these three preliminary questions, therefore, indicates that we do have jurisdiction over the constitutional challenge asserted by Mr. Orr.[7] As an Art. III “case or controversy” has been properly presented to this Court, we now turn to the merits.[8]

      II

      In authorizing the imposition of alimony obligations on husbands, but not on wives, the Alabama statutory scheme “provides that different treatment be accorded … on the basis of … sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause,” Reed v.Reed, 404 U. S. 71, 75 (1971). The fact that the classification expressly discriminates against men rather than women does not protect it from scrutiny. Craig v. Boren, 429 U. S. 190 (1976). “To withstand scrutiny” under the Equal Protection Clause, “'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.'” Califano v. Webster, 430 U. S. 313, 316–317 (1977). We shall, therefore, examine the three governmental objectives that might arguably be served by Alabama's statutory scheme.

      Appellant views the Alabama alimony statutes as effectively announcing the State's preference for an allocation of family responsibilities under which the wife plays a dependent role, and as seeking for their objective the reinforcement of that model among the State's citizens. Cf. Stern v. Stern, 165 Conn. 190, 332 A. 2d 78 (1973). We agree, as he urges, that prior cases settle that this purpose cannot sustain the statutes.[9] Stanton v. Stanton, 421 U. S. 7, 10 (1975), held that the “old notio[n]” that “generally it is the man's primary responsibility to provide a home and its essentials,” can no longer justify a statute that discriminates on the basis of gender. “No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas,” id., at 14–15. See also Craig v. Boren, supra, at 198. If the statute is to survive constitutional attack, therefore, it must be validated on some other basis.

      The opinion of the Alabama Court of Civil Appeals suggests other purposes that the statute may serve. Its opinion states that the Alabama statutes were “designed” for “the wife of a broken marriage who needs financial assistance,” 351 So. 2d, at 905. This may be read as asserting either of two legislative objectives. One is a legislative purpose to provide help for needy spouses, using sex as a proxy for need. The other is a goal of compensating women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce. We concede, of course, that assisting needy spouses is a legitimate and important governmental objective. We have also recognized “[r]education of the disparity in economic condition between men and women caused by the long history of discrimination against women … as … an important governmental objective,” Califano v. Webster, supra, at 317. It only remains, therefore, to determine whether the classification at issue here is “substantially related to achievement of those objectives.” Ibid.[10]

      Ordinarily, we would begin the analysis of the “needy spouse” objective by considering whether sex is a sufficiently “accurate proxy,” Craig v. Boren, supra, at 204, for dependency to establish that the gender classification rests “‘upon some ground of difference having a fair and substantial relation to the object of the legislation,”” Reed v. Reed, supra, at 76. Similarly, we would initially approach the “compensation” rationale by asking whether women had in fact been significantly discriminated against in the sphere to which the statute applied a sex-based classification, leaving the sexes “not similarly situated with respect to opportunities” in that sphere, Schlesinger v. Ballard, 419 U. S. 498, 508 (1975). Compare Califano v. Webster, supra, at 318, and Kahn v. Shevin, 416 U. S. 351, 353 (1974), with Weinberger v. Wiesenfeld, 420 U. S. 636, 648 (1975).[11]

      But in this case, even if sex were a reliable proxy for need, and even if the institution of marriage did discriminate against women, these factors still would “not adequately justify the salient features of” Alabama's statutory scheme, Craig v. Boren, supra, at 202–203. Under the statute, individualized hearings at which the parties’ relative financial circumstances are considered already occur. See Russell v. Russell, 247 Ala. 284, 286, 24 So. 2d 124, 126 (1945); Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919). There is no reason, therefore, to use sex as a proxy for need. Needy males could be helped along with needy females with little if any additional burden on the State. In such circumstances, not even an administrative-convenience rationale exists to justify operating by generalization or proxy.[12] Similarly, since individualized hearings can determine which women were in fact discriminated against vis-a-vis their husbands, as well as which family units defied the stereotype and left the husband dependent on the wife, Alabama's alleged compensatory purpose may be effectuated without placing burdens solely on husbands. Progress toward fulfilling such a purpose would not be hampered, and it would cost the State nothing more, if it were to treat men and women equally by making alimony burdens independent of sex. “Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are in fact similarly situated to the women the statute aids,” Weinberger v. Wiesenfeld, supra, at 653, and the effort to help those women would not in any way be compromised.

      Moreover, use of a gender classification actually produces perverse results in this case. As compared to a gender-neutral law placing alimony obligations on the spouse able to pay, the present Alabama statutes give an advantage only to the financially secure wife whose husband is in need. Although such a wife might have to pay alimony under a gender-neutral statute, the present statutes exempt her from that obligation. Thus, “[t]he [wives] who benefit from the disparate treatment are those who were … nondependent on their husbands,” Califano v. Goldfarb, 430 U. S. 199, 221 (1977) (STEVENS, J., concurring in judgment). They are precisely those who are not “needy spouses” and who are “least likely to have been victims of … discrimination,” ibid., by the institution of marriage. A gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny.

      Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the “proper place” of women and their need for special protection. Cf. United Jewish Organizations v. Carey, 430 U. S. 144, 173–174 (1977) (opinion concurring in part). Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored. Where, as here, the State's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound—if only indirectly—to the benefit of those without need for special solicitude.

      III

      Having found Alabama's alimony statutes unconstitutional, we reverse the judgment below and remand the cause for further proceedings not inconsistent with this opinion. That disposition, of course, leaves the state courts free to decide any questions of substantive state law not yet passed upon in this litigation. Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 109 (1938); C. Wright, Federal Courts, at 544. See South Dakota v. Opperman, 428 U. S. 364, 396 (1976) (MARSHALL, J., dissenting); United Air Lines, Inc. v. Mahin, 410 U. S., at 632; California v. Green, 399 U. S. 149, 169–170 (1970); Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 506, 512 (1938); Georgia R. & Elec. Co. v. Decatur, 297 U. S. 620, 623–624 (1936). Therefore, it is open to the Alabama courts on remand to consider whether Mr. Orr's stipulated agreement to pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments.[13]

      Reversed and remanded.

      MR. JUSTICE BLACKMUN, concurring.

      On the assumption that the Court's language concerning discrimination “in the sphere” of the relevant preference statute, ante, at 281, does not imply that society-wide discrimination is always irrelevant, and on the further assumption that that language in no way cuts back on the Court's decision in Kahn v. Shevin, 416 U. S. 351 (1974), I join the opinion and judgment of the Court. MR. JUSTICE STEVENS, concurring.

      Whether Mr. Orr has a continuing contractual obligation to pay alimony to Mrs. Orr is a question of Alabama law that the Alabama courts have not yet decided. In Part I-B of his opinion, MR. JUSTICE REHNQUIST seems to be making one of two alternative suggestions:

      (1) that we should decide the state-law issue; or

      (2) that we should direct the Supreme Court of Alabama to decide that issue before deciding the federal constitutional issue.

      In my judgment the Court has correctly rejected both of these alternatives. To accept either—or a rather confused blend of the two—would violate principles of federalism that transcend the significance of this case.[*] I therefore join the Court's opinion.

      MR. JUSTICE POWELL, dissenting.

      I agree with MR. JUSTICE REHNQUIST that the Court, in its desire to reach the equal protection issue in this case, has dealt too casually with the difficult Art. III problems which confront us. Rather than assume the answer to questions of state law on which the resolution of the Art. III issue should depend, and which well may moot the equal protection question in this case, I would abstain from reaching either of the constitutional questions at the present time.

      This Court repeatedly has observed:

      “[W]hen a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay its hand in order to provide the state courts an opportunity to settle the underlying state-law question and thus avoid the possibility of unnecessarily deciding a constitutional question.” Harris County Comm'rs Court v. Moore, 420 U. S. 77, 83 (1975).

      See Elkins v. Moreno, 435 U. S. 647 (1978); Boehning v. Indiana State Employees Assn., Inc., 423 U. S. 6 (1975); Askew v. Hargrave, 401 U. S. 476 (1971); Reetz v. Bozanich, 397 U. S. 82 (1970); Aldrich v. Aldrich, 378 U. S. 540 (1964); Dresner v. Tallahassee, 378 U. S. 539 (1964); Clay v. Sun Ins. Office Ltd., 363 U. S. 207 (1960); Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639 (1959); Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 (1944); Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941). The Court should follow this principle in the present case.

      Here there are present two questions of state law, the resolution of which almost certainly will determine the outcome of this litigation, and at the least will substantially alter the issues presented. The Court concedes that Alabama properly might regard this challenge to the terms of the divorce decree as untimely, as it came for the first time—more than two years after the decree became final—in a contempt proceeding to enforce the alimony obligation. Ante, at 275 n. 4. Moreover, appellant had interposed no objection to the entry of the decree and the approval therein of the settlement agreement, nor had he questioned the validity of the Alabama statute. If, in these circumstances, provisions of a divorce decree are subject to collateral attack, grave questions will arise in Alabama and other States. It hardly need be said that the policy of repose embodied in a prohibition of collateral attack has especial importance with respect to divorce and alimony decrees. It is not surprising, therefore, that subsequent to its decision in this case the Alabama Court of Civil Appeals held that a claim identical to appellant's would not be considered, where the husband raised it for the first time on a motion for a new trial. Hughes v. Hughes, 362 So. 2d 910, cert. dismissed as improvidently granted, 362 So. 2d 918 (Ala. 1978), appeal docketed, No. 78–1071. This holding should apply a fortiori to a case where the constitutional claim was not raised until a contempt proceeding.

      The second question of state law concerns the formal settlement agreement entered into between appellant and appellee, which deals in detail with the “property rights, alimony, and other matters in dispute” between the parties, and which was approved by the divorce court. The agreement requires the husband to pay $1,240 per month for the “support and maintenance, use and comfort” of the wife for her life or until she remarries. It also specifies that the terms and provisions of the agreement “shall inure to and be binding upon the parties hereto and their respective heirs, assigns, executors, administrators and legal representatives.” App. 7–15. Although the Court does not view this agreement as any obstacle to reaching the constitutional question, it does acknowledge that appellant “may have a continuing obligation to his former wife based upon that agreement”—as a matter of “state contract law” quite apart from the divorce decree. Ante, at 275.

      If appellant's collateral attack on the terms of the divorce decree could not properly be entertained under Alabama law, or if the alimony obligation assumed by appellant in the settlement agreement remains enforceable under Alabama law, the question whether this Court constitutionally may exercise jurisdiction over the dispute would be close and difficult.[1] In addition, it would be unnecessary to consider the constitutionality of Alabama's divorce statute, as the adequate-and-independent-state-ground doctrine then would bar federal review of the judgment against appellant.[2]

      The Court, in order to find a case or controversy present here, necessarily assumes the answer to both of the state-law questions in this case. In some circumstances such assumptions might be appropriate. We cannot anticipate every state-law issue that ultimately could bar the realization of an otherwise substantial federal claim, and the failure of either the state courts or the parties to address an issue ordinarily might indicate that it does not present a problem. But here the Court concedes the substantiality of the identified but unanswered questions. Indeed, in light of Hughes v. Hughes, supra, it could not do otherwise.

      The uncertainty and ambiguity surrounding this case is accentuated by the fact that appellant apparently does not contend that the entire divorce decree is invalid; he seeks relief only from so much of the decree as imposes an alimony obligation. But this obligation is only one element of the detailed and comprehensive agreement signed by the parties and witnessed by their respective attorneys. The agreement was not made subject to the approval of the divorce court. Apart from whether the contractual obligation to pay alimony remains binding on appellant, is there a question as to the binding effect of the divorce itself upon appellee? Would she have agreed to divorce appellant without a contest, and without making a record of her grounds for divorce, unless she had the assurance of a valid and enforceable court order providing support and maintenance for her lifetime?

      Apparently none of these questions was raised in either of the Alabama courts. No explanation has been offered us as to why the case is presented here in this manner.[3] In view of the substantiality of the unanswered questions, it must be conceded that serious doubts exist as to either the presence of a judicially cognizable case or controversy or to appellant's obtaining any advantage from his constitutional claim. The failure of the parties to raise the questions in the courts below, and of the courts to raise them sua sponte, cannot bind us. On the record before us it cannot be said with assurance that the interests of these parties before this Court are fully adversary or that they are not seeking—for reasons undisclosed—a purely advisory opinion on a constitutional issue of considerable importance.[4]

      In these circumstances, I find the Court's insistence upon reaching and deciding the merits quite irreconcilable with the long-established doctrine that we abstain from reaching a federal constitutional claim that is premised on unsettled questions of state law without first affording the state courts an opportunity to resolve such questions. I therefore would remand the case to the Supreme Court of Alabama.

      MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. In Alabama only wives may be awarded alimony upon divorce. In Part I of its opinion, the Court holds that Alabama's alimony statutes may be challenged in this Court by a divorced male who has never sought alimony, who is demonstrably not entitled to alimony even if he had, and who contractually bound himself to pay alimony to his former wife and did so without objection for over two years. I think the Court's eagerness to invalidate Alabama's statutes has led it to deal too casually with the “case and controversy” requirement of Art. III of the Constitution.

      I

      The architects of our constitutional form of government, to assure that courts exercising the “judicial power of the United States” would not trench upon the authority committed to the other branches of government, consciously limited the Judicial Branch's “right of expounding the Constitution” to “cases of a Judiciary Nature”[1]—that is, to actual “cases” and “controversies” between genuinely adverse parties. Central to this Art. III limitation on federal judicial power is the concept of standing. The standing inquiry focuses on the party before the Court, asking whether he has “‘such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf.” Warth v. Seldin, 422 U. S. 490, 498–499 (1975) (emphasis in original), quoting Baker v. Carr, 369 U. S. 186, 204 (1962). Implicit in the concept of standing, are the requirements of injury in fact and causation. To demonstrate the “personal stake” in the litigation necessary to satisfy Art. III, the party must suffer “a distinct and palpable injury,” Warth v. Seldin, supra, at 501, that bears a “‘fairly traceable’ causal connection” to the challenged government action. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 72 (1978), quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 261 (1977). When a party's standing to raise an issue is questioned, therefore, “the relevant inquiry is whether … [he] has shown an injury to himself that is likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 38 (1976). Stated differently, a party who places a question before a federal court must “stand to profit in some personal interest” from its resolution, else the exercise of judicial power would be gratuitous.

      Id., at 39.

      The sole claim before this Court is that Alabama's alimony statutes, which provide that only husbands may be required to pay alimony upon divorce, violate the Equal Protection Clause of the Fourteenth Amendment. Statutes alleged to create an impermissible gender-based classification are generally attacked on one of two theories. First, the challenged classification may confer on members of one sex a benefit not conferred on similarly situated members of the other sex. Clearly, members of the excluded class—those who but for their sex would be entitled to the statute's benefits—have a sufficient “personal stake” in the outcome of an equal protection challenge to the statute to invoke the power of the federal judiciary. Thus, a widower has standing to question the constitutionality of a state statute granting a property tax exemption only to widows. See Kahn v. Shevin, 416 U. S. 351 (1974). Likewise, this Court has reached the merits of a retired male wage earner's equal protection challenge to a federal statute granting higher monthly old-age benefits to similarly situated female wage earners. See Califano v. Webster, 430 U. S. 313 (1977). Standing to raise these constitutional claims was not destroyed by the fact that the State of Florida in Kahn, and Congress in Webster, were capable of frustrating a victory in this Court by merely withdrawing the challenged statute's benefits from the favored class rather than extending them to the excluded class. See Stanton v. Stanton, 421 U. S. 7, 17 (1975).

      Second, the challenged statute may saddle members of one sex with a burden not borne by similarly situated members of the other sex. Standing to attack such a statute lies in those who labor under its burden. For example, in Califano v. Goldfarb, 430 U. S. 199 (1977), this Court sustained a widower's equal protection challenge to a provision of the Social Security Act that burdened widowers but not widows with the task of proving dependency upon the deceased spouse in order to qualify for survivor's benefits. A similar statute was invalidated in Frontiero v. Richardson, 411 U. S. 677 (1973), at the instance of a female member of the uniformed services who, unlike her male counterparts, was required to prove her spouse's dependency in order to obtain increased quarters allowances and health benefits.

      The statutes at issue here differ from those discussed above in that the benefit flowing to divorced wives derives from a burden imposed on divorced husbands. Thus, Alabama's alimony statutes in effect create two gender classifications: that between needy wives, who can be awarded alimony under the statutes, and needy husbands, who cannot; and that between financially secure husbands, who can be required to pay alimony under the statutes, and financially secure wives, who cannot. Appellant Orr's standing to raise his equal protection claim must therefore be analyzed in terms of both of these classifications.

      A

      This Court has long held that in order to satisfy the injury-in-fact requirement of Art. III standing, a party claiming that a statute unconstitutionally withholds a particular benefit must be in line to receive the benefit if the suit is successful. In Supervisors v. Stanley, 105 U. S. 305 (1882), shareholders of a national bank attacked the validity of a state property tax statute that did not, contrary to federal law, permit deduction of personal debts from the assessed value of their bank stock. With respect to the constitutional claim of shareholders who had failed to allege the existence of personal debts that could be deducted under a valid statute, the Court reasoned:

      “What is there to render the [state statute] void as to a shareholder in a national bank, who owes no debts which he can deduct from the assessed value of his shares? The denial of this right does not affect him. He pays the same amount of tax that he would if the law gave him the right of deduction. He would be in no better condition if the law expressly authorized him to make the deduction. What legal interest has he in a question which only affects others? Why should he invoke the protection of the act of Congress in a case where he has no rights to protect? Is a court to sit and decide abstract questions of law in which the parties before it show no interest, and which, if decided either way, affect no right of theirs? …

      “If no such right exists, the delicate duty of declaring by this court that an act of State legislation is void, is an assumption of authority uncalled for by the merits of the case, and unnecessary to the assertion of the rights of any party to the suit.” Id., at 311–312.

      It is undisputed that the parties now before us are “a needy wife who qualifies for alimony and a husband who has the property and earnings from which alimony can be paid.” 351 So. 2d 906, 907 (1977) (Jones, J., dissenting). Under the statute pertinent to the Orrs' divorce, alimony may be awarded against the husband only “[i]f the wife has no separate estate or if it be insufficient for her maintenance.” Ala. Code § 30-2-51 (1975). At the time of their divorce, Mr. Orr made no claim that he was not in a position to contribute to his needy wife's support, much less that she should be required to pay alimony to him.[2] On the contrary, the amount of alimony awarded by the Alabama trial court was agreed to by the parties, and appellant has never sought a reduction in his alimony obligation on the ground of changed financial circumstances. See Davis v. Davis, 274 Ala. 277, 147 So. 2d 828 (1962); Garlington v. Garlington, 246 Ala. 665, 22 So. 2d 89 (1945). On these facts, it is clear that appellant is not in a position to benefit from a sexneutral alimony statute.[3] His standing to raise the constitutional question in this case, therefore, cannot be founded on a claim that he would, but for his sex, be entitled to an award of alimony from his wife under the Alabama statutes.

      B

      The Court holds that Mr. Orr's standing to raise his equal protection claim lies in the burden he bears under the Alabama statutes. He is required to pay alimony to his needy former spouse while similarly situated women are not. That the State may render Mr. Orr's victory in this Court a hollow one by neutrally extending alimony rights to needy husbands does not, according to the Court, destroy his standing, for the State may elect instead to do away with alimony altogether. The possibility that Alabama will turn its back on the thousands of women currently dependent on alimony checks for their support[4] is, as a practical matter, nonexistent. But my conclusion that appellant lacks standing in this Court does not rest on the strong likelihood that Alabama will respond to today's decision by passing a sex-neutral statute. Appellant has simply not demonstrated that either alternative open to the State—even the entire abrogation of alimony—will free him of his burden. The alimony obligation at issue in this case was fixed by an agreement between the parties, and appellant makes no claim that the contract is unenforceable under state law. Indeed, the Court itself concedes that “despite the unconstitutionality of the alimony statutes. Mr. Orr may have a continuing obligation to his former wife based upon [their] agreement.” Ante, at 275. The Court casually dismisses the matter, however, as one “which we cannot, and would not, predict.” Ante, at 276 n. 5.

      I cannot accede to the Court's offhand dismissal of so serious an obstacle to the exercise of our jurisdiction. It is not our duty to establish Orr's standing to have his claim decided on the merits. On the contrary, the burden is on him “to meet the minimum requirement of Art. III: to establish that, in fact, the asserted injury was the consequence of the [unconstitutional statute], or that prospective relief will remove the harm.” Warth v. Seldin, 422 U. S., at 505; Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S., at 72; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S., at 260–261; Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S., at 38; Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973). That appellant has not carried this burden is clearly demonstrated by the Court's acknowledgement that his alimony obligation may well be enforced under state contract law.

      The Court's analysis of Mr. Orr's standing is not aided by its attempt to transform the instant case into one involving race discrimination. See ante, at 273. Of course, a state law imposing alimony obligations on blacks but not whites could be challenged by a black required, by operation of the statute, to pay alimony. Invalidation of the discriminatory alimony statute would relieve him of his burden. If, however, his alimony obligation was enforceable under state contract law independent of the challenged alimony statute, he could hardly argue that his injury was caused by the challenged statute. Invalidation of the statute would bring him no relief. Accordingly, the exercise of federal judicial power on his behalf “would be gratuitous and thus inconsistent with the Art. III limitation.” Simon v. Eastern Kentucky Welfare Rights Org., supra, at 38.

      Nor is the Court's conclusion supported by Linda R. S. v. Richard D., supra. At issue in Linda R. S. was a state statute subjecting to criminal prosecution any “parent” failing to support his “children.” State courts had consistently construed the statute to apply solely to the parents of legitimate children and to impose no duty of support on the parents of illegitimate children. The mother of an illegitimate child, claiming that the “discriminatory application” of the statute violated the Equal Protection Clause, sought an injunction directing the local district attorney to prosecute the father of her child for violating the statute. This Court held that she lacked standing to raise her claim. While she “no doubt suffered an injury stemming from the failure of her child's father to contribute support payments,” she had made “no showing that her failure to secure support payments result[ed] from the nonenforcement, as to her child's father, of [the child-support statute].” 410 U. S., at 618.

      “Thus, if appellant were granted the requested relief, it would result only in the jailing of the child's father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative. Certainly the ‘direct’ relationship between the alleged injury and the claim sought to be adjudicated which previous decisions of this Court suggest is a prerequisite of standing, is absent in this case.” Ibid. Like appellant in Linda R. S., Mr. Orr has failed to show a “substantial likelihood”[5] that the requested relief will result in termination of his alimony obligation. Thus, far from supporting the Court's finding of standing in appellant Orr, Linda R. S. leads inescapably to the opposite conclusion.[6]

      II

      Nor is appellant's lack of standing somehow cured by the fact that the state courts reached and decided the merits of his constitutional claim. Article III is a jurisdictional limitation on federal courts, and a state court cannot transform an abstract or hypothetical question into a “case or controversy” merely by ruling on its merits. In Doremus v. Board of Education, 342 U. S. 429 (1952), this Court held that a taxpayer lacked the requisite financial interest in the outcome of a First Amendment challenge to a state statute requiring Bible reading in public schools. In dismissing the taxpayer's appeal from an adverse ruling in the State's highest court, this Court held:

      “We do not undertake to say that a state court may not render an opinion on a federal constitutional question even under such circumstances that it can be regarded only as advisory. But, because our own jurisdiction is cast in terms of ‘case or controversy’ we cannot accept as the basis for review, nor as the basis for conclusive disposition of an issue of federal law without review, any procedure which does not constitute such.” Id., at 434.

      Appellant's case, having come to us on appeal rather than on writ of certiorari, is much like Marbury's case in that Congress conferred upon each litigant the right to have his claim heard in this Court. But here, as in Marbury v. Madison, 1 Cranch 137 (1803), and Doremus, supra, we are, in my opinion, prevented by Art. III of the Constitution from exercising the jurisdiction which Congress has sought to confer upon us.

      III

      Article III courts are not commissioned to roam at large, gratuitously righting perceived wrongs and vindicating claimed rights. They must await the suit of one whose advocacy is inspired by a “personal stake” in victory. The Framers' wise insistence that those who invoke the power of a federal court personally stand to profit from its exercise ensures that constitutional issues are not decided in advance of necessity and that the complaining party stand in the shoes of those whose rights he champions. Obedience to the rules of standing—the “threshold determinants of the propriety of judicial intervention”[7]—is of crucial importance to constitutional adjudication in this Court, for when the parties leave these halls, what is done cannot be undone except by constitutional amendment.

      Much as “Caesar had his Brutus; Charles the First his Cromwell,” Congress and the States have this Court to ensure that their legislative Acts do not run afoul of the limitations imposed by the United States Constitution. But this Court has neither a Brutus nor a Cromwell to impose a similar discipline on it. While our “right of expounding the Constitution” is confined to “cases of a Judiciary Nature,” we are empowered to determine for ourselves when the requirements of Art. III are satisfied. Thus, “the only check upon our own exercise of power is our own sense of self-restraint.” United States v. Butler, 297 U. S. 1, 79 (1936) (Stone, J., dissenting). I do not think the Court, in deciding the merits of appellant's constitutional claim, has exercised the self-restraint that Art. III requires in this case. I would therefore dismiss Mr. Orr's appeal on the authority of Doremus v. Board of Education, supra.

      [*] Ruth Bader Ginsburg and Margaret Moses Young filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

      [1] The statutes, Ala. Code, Tit. 30 (1975), provide that: “§ 30-2-51…. If the wife has no separate estate or if it be insufficient for her maintenance, the judge, upon granting a divorce, at his discretion, may order to the wife an allowance out of the estate of the husband, taking into consideration the value thereof and the condition of his family.

      “§ 30-2-52…. If the divorce is in favor of the wife for the misconduct of the husband, the judge trying the case shall have the right to make an allowance to the wife out of the husband's estate, or not make her an allowance as the circumstances of the case may justify, and if an allowance is made, it must be as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case.

      “§ 30-2-53…. If the divorce is in favor of the husband for the misconduct of the wife and if the judge in his discretion deems the wife entitled to an allowance, the allowance must be regulated by the ability of the husband and the nature of the misconduct of the wife.”

      The Alabama Supreme Court has held that “there is no authority in this state for awarding alimony against the wife in favor of the husband…. The statutory scheme is to provide alimony only in favor of the wife.” Davis v. Davis, 279 Ala. 643, 644, 189 So. 2d 158, 160 (1966).

      [2] There is some uncertainty on this point. It may be that appellant's Circuit Court motion challenging the constitutionality of the statutes could be construed as constituting a claim for alimony. The Appeals Court opinion refers to one of Mr. Orr's arguments as challenging the failure of the statutes to “provide for an award of alimony to … males …,” 351 So. 2d 904, 905 (1977), and, in oral argument, appellant's attorney characterized his motion as asserting a claim to such an award. Tr. of Oral Arg. 7–8. Of course, whether or not this was the proper way to assert a claim for alimony may be a question of state law, but the state courts did not challenge appellant's standing on this or any other ground.

      [3] Careful examination of appellant's allegations reveals that he may not need to rely upon these arguments to demonstrate his standing, for he alleges that he will receive some relief no matter which gender-neutral reform of the statutes Alabama chooses to make. Even if Alabama chooses to burden both men and women with alimony requirements in appropriate circumstances, Mr. Orr argues that a gender-neutral statute would result in lower payments on his part.

      He argues that the current statutes award alimony to wives based not solely upon need or comparative financial circumstances, but also upon gender-related factors—e. g., the State's view that a man must maintain his wife in the manner to which she has been accustomed, Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919). He also argues that alimony agreements are not automatically incorporated into court decrees, but rather are usually first reviewed as to their fairness to the wife, but not to the husband, see Russell v. Russell, 247 Ala. 284, 286, 24 So. 2d 124, 126 (1945). Given our disposition of the case, we need not resolve these allegations, but they serve to render unassailable appellant's standing to assert the unconstitutionality of the statutes.

      [4] This does not preclude any other State, or even Alabama in another case, from holding that contempt proceedings are too late in the process to challenge the constitutionality of a divorce decree already entered without constitutional objection—assuming, of course, that the State's prior proceedings permit fair opportunity to assert the federal right, see NAACP v. Alabama, 377 U. S. 288 (1964). Indeed, as our Brother POWELL points out, post, at 286, Alabama apparently has a similar rule. See Hughes v. Hughes, 362 So. 2d 910 (Ala. Civ. App.), cert. dismissed as improvidently granted, 362 So. 2d 918 (Ala. 1978), appeal docketed, No. 78-1071. There is, therefore, no reason for concern that today's decision might nullify existing alimony obligations. But the fact that state courts can decline to hear such tardily raised constitutional challenges does not mean that as a matter of federal law they must do so. And where they decide instead to reach the federal question, this Court has jurisdiction. See Beecher v. Alabama, 389 U. S. 35, 37 n. 3 (1967), and cases cited in text, supra, this page.

      [5] Whether Mrs. Orr's contempt judgment would survive on the basis of the stipulation alone depends upon the resolution of somewhat knotty state-law problems. The foremost of these is the fact that the present suit is not a simple action for breach of contract, but rather a contempt proceeding for disobeying the court's divorce decree. Moreover, under Alabama law, the divorce court judge does not automatically approve stipulated settlements, but must review them for fairness. Russell v. Russell, supra. How the Alabama courts would treat Mr. Orr's stipulation after the invalidation of the gender-based alimony statutes is a matter which we cannot, and would not, predict.

      [6] The fact that the State Supreme Court merely quashed the petition for certiorari, so that the highest state court actually to decide the merits of the case was the Court of Appeals, does not alter this result. In Cicenia v. Lagay, 357 U. S. 504, 507–508, n. 2 (1958), overruled on other grounds, Miranda v. Arizona, 384 U. S. 436, 479 n. 48 (1966), for example, the New Jersey Superior Court decided the case on federal constitutional grounds, although state grounds might have been available, and the State Supreme Court denied certification without giving reasons—precisely the situation present here. In fact, the claim that an independent state ground existed was even stronger in Cicenia than here, because there the trial court, the Essex County Court, had rested its decision on state law. Nonetheless, Cicenia held: “Since the Superior Court had dealt with petitioner's constitutional claims on the merits … jurisdiction exists…. [W]e shall not assume that the New Jersey Supreme Court's decision denying leave to appeal was based on th[e] non-federal ground.” 357 U. S., at 507–508, n. 2.

      [7] Our Brother REHNQUIST'S dissent contends that Doremus v. Board of Education, 342 U. S. 429 (1952), requires dismissal of Mr. Orr's appeal. The quotation from Doremus cited by our Brother REHNQUIST, post, at 299, merely confirms the obvious proposition that a state court cannot confer standing before this Court on a party who would otherwise lack it. But that proposition is wholly irrelevant to this case. Although a state court cannot confer standing in this Court, it can decline to place purely state-law obstacles in the way of an appellant's right to have this Court decide his federal claim. Our Brother REHNQUIST argues that a matter of state contract law, albeit unsettled, denies Orr his otherwise clear standing. But that could only be the case if the Alabama courts had construed the stipulation as continuing to bind Mr. Orr—something which the Alabama courts did not do. By addressing and deciding the merits of Mr. Orr's constitutional argument, the Alabama courts have declined to interpose this obstacle to Mr. Orr's standing.

      [8] Our Brother POWELL'S dissent makes two objections to our reaching the merits of this case. The first is that this Court should abstain from deciding the constitutional issue until the cause is remanded to afford the Alabama Supreme Court a second opportunity to consider the case. For authority he cites opinions applying the so-called “Pullman abstention” doctrine. See Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941). But that doctrine is applicable only where the state court to be deferred to has not previously examined the case. Not one of the long string of opinions cited by our Brother POWELL, post, at 285–286, approved abstention in a situation like this one, where the court to which the question would be referred already considered the case.

      The more surprising, indeed disturbing, objection made by our Brother POWELL is the suggestion that the parties may have colluded to bring the constitutional issue before this Court. Post, at 288–289, and n. 4. No evidence whatever, within or outside the record, supports that accusation. And our Brother POWELL suggests none. Indeed, it is difficult to imagine what possible interest Mrs. Orr could have in helping her ex-husband resist her demand for $5,524 in back alimony.

      [9] Appellee attempts to buttress the importance of this objective by arguing that while “[t]he common law stripped the married woman of many of her rights and most of her property, … it attempted to partially compensate by giving her the assurance that she would be supported by her husband.” Brief for Appellee 11–12. This argument, that the “support obligation was imposed by the common law to compensate the wife for the discrimination she suffered at the hands of the common law,” id., at 11, reveals its own weakness. At most it establishes that the alimony statutes were part and parcel of a larger statutory scheme which invidiously discriminated against women, removing them from the world of work and property and “compensating” them by making their designated place “secure.” This would be reason to invalidate the entire discriminatory scheme—not a reason to uphold its separate invidious parts. But appellee's argument is even weaker when applied to the facts of this case, as Alabama has long ago removed, by statute, the elements of the common law appellee points to as justifying further discrimination. See Ala. Const., Art. X, § 209 (married women's property rights).

      [10] Of course, if upon examination it becomes clear that there is no substantial relationship between the statutes and their purported objectives, this may well indicate that these objectives were not the statutes' goals in the first place. See Ely, The Centrality and Limits of Motivation Analysis, 15 San Diego L. Rev. 1155 (1978).

      [11] We would also consider whether the purportedly compensatory “classifications in fact penalized women,” and whether “the statutory structure and its legislative history revealed that the classification was not enacted as compensation for past discrimination.” Califano v. Webster, 430 U. S., at 317.

      [12] It might be argued that Alabama's rule at least relieves the State of the administrative burden of actions by husbands against their wives for alimony. However, when the wife is also seeking alimony, no savings will occur, as a hearing will be required in any event. But even when the wife is willing to forgo alimony, it appears that under Alabama law savings will still not accrue, as Alabama courts review the financial circumstances of the parties to a divorce despite the parties' own views—even when settlement is reached. See Russell v. Russell, 247 Ala. 284, 286, 24 So. 2d 124, 126 (1945). Even were this not true, and some administrative time and effort were conserved, “[t]o give a mandatory preference to members of either sex … merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause,” Reed v. Reed, 404 U. S. 71, 76 (1971).

      [13] Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 109 (1938), is dispositive to this effect. There, the Indiana state courts had available two potential grounds for upholding the actions of a public school in dismissing a teacher. One was a matter purely of state law; the other required holding that the dismissal had not violated the Contracts Clause of the Federal Constitution. The Indiana courts chose the latter course and did not pass upon the state question. While recognizing that the state ground could have been relied upon, Anderson held, as we have held here, that the decision of the state court to reach the merits of the constitutional question without relying on the potential state ground gave this Court jurisdiction. As we have done here, the Court in Anderson proceeded to decide the federal question against the State and reversed the judgment below. The case was remanded, the Court noting that the state-law ground was still available as a defense for the school and could be so considered by the state courts. Similarly, the effect of Mr. Orr's stipulation, and any other matter of substantive state law not yet passed upon, may now be considered by the Alabama courts on remand.

      [*] Even if I could agree with MR. JUSTICE REHNQUIST'S view that Mr. Orr's probability of success on the state-law issue is so remote that we should deny him standing to argue the federal question decided by the Alabama Supreme Court, I still would not understand how he reached the conclusion that the litigation between Mr. and Mrs. Orr is not a “case or controversy” within the meaning of Art. III.

      [1] The Court confuses the questions of the existence of a case or controversy under Art. III with the application of the adequate-and-independent-state-ground doctrine. It is true that the failure of the courts below to rest their decision on a state-law ground means that we are not without power to decide the case for that reason. Cf. Murdock v. Memphis, 20 Wall. 590 (1875). But this does not determine whether the presence in fact of state-law grounds for the decision below bars a federal court from considering this claim under Supervisors v. Stanley, 105 U. S. 305 (1882).

      [2] The Court implies that principles of equitable abstention expressed in the Pullman decision never can apply when the court to which the unresolved question of state law will be referred already has considered the case. Ante. at 278 n. 8. But, as the unusual posture of this case illustrates, a state court may have considered a case without having had the relevant state-law questions presented to it. See n. 3, infra. Where this is true, the policies that underlie Pullman should apply with equal force.

      [3] As the Court notes, in appellee's brief in the Alabama Court of Civil Appeals she stated that “[t]he appellee agrees that the issue before this Court is whether the Alabama alimony laws are unconstitutional because of the gender based classification made in the statutes.” Ante, at 276. She made no reference to Alabama authority that already had held that constitutional attacks on the divorce statute would not be heard unless presented at the time the divorce is contested. See Dale v. Dale, 54 Ala. App. 505, 310 So. 2d 225 (1975). Even more inexplicable, appellee before this Court has made no reference to Hughes v. Hughes, 362 So. 2d 910 (Ala. App.), cert. dismissed as improvidently granted, 362 So. 2d 918 (Ala. 1978), appeal docketed, No. 78-1071, in spite of that decision's clear relevance to this case. It is pertinent that the initial decision in Hughes was handed down more than seven months before appellee filed her brief before us, and that the final decision of the Supreme Court of Alabama was announced a month before argument in this case.

      [4] It is curious, to say the least, that neither party in this case has raised these questions. The competency of appellee's counsel is evidenced by the thoroughness of the settlement agreement he negotiated and witnessed. Moreover, the questions not raised are neither abstruse nor difficult. In view of the way in which this case has been presented, we cannot dismiss the possibility of some rapprochement between these parties that could affect the genuineness of a case or controversy. There may well be an innocent explanation for these most unusual circumstances, but the absence of any such explanation appearing from the record suggests the wisdom of not deciding the constitutional issue.

      [1] 2 M. Farrand, The Records of the Federal Convention of 1787, p. 430 (1911). Indeed, on four different occasions the Constitutional Convention rejected a proposal, contained in the “Virginia Plan,” to associate Justices of the Supreme Court in a counsel of revision designed to render advice on pending legislation. 1 id., at 21. Suggestions that the Chief Justice be a member of the Privy Council to assist the President, and that the President or either House of Congress be able to request advisory opinions of the Supreme Court were likewise rejected. 2 id., at 328–329, 340–344.

      [2] The Court suggests that “[i]t may be that appellant's Circuit Court motion challenging the constitutionality of the statutes could be construed as constituting a claim for alimony.” Ante, at 271–272, n. 2. The Court further notes that in any event, “the state courts did not challenge appellant's standing on this or any other ground.” Ibid.

      Appellant's motion, made in response to the court's order to show cause why he should not be judged in contempt, provides in pertinent part:

      “WHEREFORE, your Respondent moves the Court for an order decreeing that:

      “1. Code of Alabama, Title 34, §§ 31–33 arbitrarily discriminate against male spouses and thus are in violation of the equal protection clause of the United States Constitution and thereby are unconstitutional.

      “2. A permanent injunction be issued against the continued enforcement of these statutes.

      “3. The decree ordering your Respondent to pay the Complainant alimony be rendered null and void.” App. to Juris. Statement 24a. How this can be construed as constituting a claim for alimony is beyond me. That the state courts did not challenge appellant's standing on his failure to claim entitlement to alimony is wholly irrelevant. We are not here concerned with the question whether Mr. Orr lacked standing under state law to bring this suit in an Alabama court. The Case and Controversy Clause of Art. III is a constitutional limitation on the jurisdiction of federal courts. See Doremus v. Board of Education, 342 U. S. 429 (1952).

      [3] The Court states that appellant's standing is rendered “unassailable” by his allegations (1) that under Alabama law a man must maintain his wife in a manner to which she has been accustomed, and (2) that alimony stipulations are reviewed as to their fairness to the wife before being incorporated into court decrees. Ante, at 273–274, n. 3. The Court interprets these allegations as an argument by appellant “that a gender-neutral statute would result in lower payments on his part.” Ibid.

      First, appellant nowhere argues that his alimony obligation would have been less under a sex-neutral statute. The allegations cited by the Court are made in support of appellant's contention that the Alabama alimony statutes were inspired by “archaic notions” about the proper role of women—a contention going to the merits of his equal protection claim rather than his standing to raise it. Second, since his alimony obligation was fixed by an agreement between the parties, appellant could not have seriously made such an argument in any event. Third, even if he had made the argument attributed to him by the Court, it is patently meritless. A gender-neutral alimony statute, by definition, treats husbands and wives the same. Presumably, therefore, a husband claiming under such a statute would be entitled to an amount sufficient to support him in the manner to which he had been accustomed and would be entitled to judicial review of the fairness of any alimony stipulation before its incorporation into the court decree. Far from rendering Mr. Orr's standing “unassailable,” the allegations seized upon by the Court are utterly beside the point.

      [4] The Court suggests that because the Alabama courts are free to hold that the constitutionality of a divorce decree entered without constitutional objection cannot be challenged in contempt proceedings, there is no reason for concern that today's decision will nullify existing alimony obligations. Alabama males currently under court order to pay alimony, however, need not wait until contempt proceedings are lodged against them to raise their constitutional challenge. Rather, they may simply petition the court for relief from the unconstitutional divorce decree.

      [5] “Our recent cases have required no more than a showing that there is a ‘substantial likelihood’ that the relief requested will redress the injury claimed to satisfy the second prong of the constitutional standing requirement.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 75 n. 20 (1978).

      [6] The Court seizes on our gratuitous observation in Linda R. S. that “‘the proper party to challenge the constitutionality of [the child-support statute] would be a parent of a legitimate child who has been prosecuted under the statute. Such a challenge would allege that because the parents of illegitimate children may not be prosecuted, the statute unfairly discriminates against the parents of legitimate children.’ 335 F. Supp., at 806.” 410 U. S., at 619 n. 5. As a statement on standing to challenge a discriminatory criminal statute, the quoted passage cannot be faulted. Clearly, a parent prosecuted under such a statute would satisfy both the injury-in-fact and the causation requirements of standing—invalidation of the statute would totally remove the prosecuted parent's harm. In the instant case, however, the Court itself admits that today's decision may well be gratuitous insofar as appellant Orr is concerned.

      [7] Warth v. Seldin, 422 U. S. 490, 518 (1975).

      Prenuptial Agreements: Subject to Fair Disclosure Rules: Rosenberg v. Lipnick (1979)

      Editor's note: A Massachusetts court ruled that prenuptial agreements concerning spousal rights to property upon the death of a spouse are subject to fair disclosure rules. Prenuptial agreements governing the distribution of property upon the death of a spouse have a long history in Massachusetts, dating to the Married Women's Property Acts adopted in most states in the early 19th century. (Prenuptial agreements pertaining to divorce were not recognized as enforceable until 1981.) Such agreements may serve to guarantee that a widow will be provided for, or alternately, may be designed to keep certain property or wealth in the husband's family. In the follwoing case, the wife agreed to a lump sum paid by the estate in lieu of a statutory share; she argued that the agreement was not binding because she did not know the extent of her husband's assets at the time that she signed it.

      377 Mass. 666 (1979)

      389 N.E.2d 385

      CHARLOTTE ROSENBERG

      vs.

      SAUL E. LIPNICK & another, executors.

      Supreme Judicial Court of Massachusetts, Middlesex.

      January 3, 1979.

      March 30, 1979.

      Present: HENNESSEY, C. J., QUIRICO, BRAUCHER, & WILKINS, J J.

      George L. Cushing (Marc D. Greenbaum with him) for the plaintiff. John J. Murphy for the defendants.

      HENNESSEY, C.J.

      Charlotte Rosenberg brought this action in the Probate Court against the executors of the estate of Perry Rosenberg, her husband (decedent), seeking invalidation of an antenuptial agreement executed by her and the decedent and a declaration that she is entitled to her statutory share of his estate and a widow's allowance. On the plaintiff's motion, the action was referred to a master. The master made findings of fact and concluded that the agreement is valid and that the plaintiff is not entitled to a statutory share of the estate or to a widow's allowance. The Probate Court judge confirmed the master's report and entered judgment for the defendants. The plaintiff duly appealed.

      The plaintiff argues, and the argument finds support in the record, that both the master and the judge viewed this court's decision in Wellington v. Rugg, 243 Mass. 30 (1922), as controlling. In that case the court held that a husband's simple failure voluntarily to disclose the value of his property prior to executing an antenuptial agreement was not sufficient to invalidate the agreement. Rather, the party seeking invalidation must show fraud.

      The plaintiff filed an application for direct appellate review, asking this court to overrule Wellington and hold that (1) an antenuptial agreement which fails to make a full and fair provision for the wife is not enforceable if the husband failed to disclose his assets prior to execution of the agreement, and (2) the representatives of the husband have the burden of proving full and fair disclosure. We granted the plaintiff's application because of the importance of the issues involved.

      Although we agree that the Wellington principles should be abandoned,[1] we do not think it wise to act retroactively. The Wellington decision has remained undisturbed law in this Commonwealth for over a half-century, and numerous agreements have undoubtedly been fashioned in reliance on its rule. Accordingly, we have reviewed this case for error under the law as it existed in 1959. We have discerned none and thus affirm the judgment for the defendants. However, we take this opportunity to delineate new rules that shall apply to antenuptial agreements executed after the publication date of this opinion.

      The plaintiff, who was fifty-eight years old, met the decedent, who was sixty-nine years old, in February of 1958. Both were gainfully employed. The plaintiff was a widow, the decendent was a widower, and each had children by previous marriages. After a courtship of approximately eighteen months, the decedent proposed marriage and told the plaintiff that he would like her to sign an antenuptial agreement. The agreement provided that the plaintiff would accept $5,000 from the decedent's estate in lieu of dower or any other rights that she might have were she to survive him.

      The plaintiff took the agreement to her brother, a practicing attorney, who asked her whether she had any knowledge of her prospective husband's resources. When she stated that she did not, he told her that he thought the agreement was unfair and called for some explanation. She expressed her desire to sign it, notwithstanding her brother's observations. As he did not want to advise her against the proposed marriage, her brother recommended that she ask the decedent to sign an agreement surrendering any claim against her estate in the event that he survived her. She responded that the decedent had already told her he wanted nothing from her, whereupon her brother drafted a second agreement by which the decedent had no claim to her estate. Both agreements were executed on October 29, 1959. The plaintiff and the decedent were married on

      November 7, 1959.

      At the time of their marriage, the decedent owned a dwelling and a block of stores in Chelsea, Massachusetts. He occupied one of the stores from which he operated his business as an electrician. The block of stores was sold in 1974 for $20,000. The dwelling was sold in 1960; however, no evidence was introduced as to its sale price.

      Samuel Shapiro, one of the defendant executors and the decedent's accountant, testified that in 1960 the decedent received dividends from listed companies. Shapiro could not state the amount of such dividends. Neither could he remember whether the decedent received any interest on savings or what the decedent's income taxes were at that time.

      The decedent died on July 4, 1976. His estate has an approximate total value of $119,000: $55,000 in stocks and bonds; $51,800 in mortgages, notes and cash; $12,000 in life insurance; and $200 in miscellaneous assets.

      During their marriage, the decedent supported the plaintiff, although the plaintiff purchased some of her clothes with her own money. She continued to be employed at the time of the hearing and had assets totalling approximately $45,000, although her living expenses exceeded her income.

      1. The plaintiff contends that the $5,000 to which she is entitled under the antenuptial agreement is grossly disproportionate to the amount to which she would have been entitled but for the antenuptial agreement. The plaintiff further contends that the agreement should have been declared void in the absence of compelling evidence that the agreement was fair when made or that the plaintiff had agreed to take the reduced share with full knowledge of the decedent's assets. The rule in Wellington v. Rugg, supra, is clearly contrary. That case holds that nothing short of proof of fraud will invalidate an antenuptial agreement, irrespective of the unfairness of the agreement's provisions.

      The following language is controlling: “[T]he allegation that the intestate ‘concealed’ the amount of his property in the absence of anything to show that he made false representations respecting it or prevented the plaintiff from obtaining whatever facts she desired concerning its character or value is immaterial. The failure on his part to inform her of what he owned falls far short of fraudulent concealment. So far as appears, had she so wished, she could have made inquiry of him, and also could have made such investigation as she saw fit before making the contract. Notwithstanding the confidential relations between the parties, the simple failure voluntarily to disclose the amount of his property does not constitute actionable fraud.” Id. at 35–36. Cf. Anderson v. Anderson, 354 Mass. 565 (1968) (finding fraud in antenuptial agreement purporting to limit the rights of the wife in the event of divorce).

      Given our view that Wellington governs the rights of the parties now before us, we need not decide whether the agreement's provisions were manifestly unfair to the plaintiff.[2] The master found that the plaintiff failed to establish that the decedent either misrepresented or fraudulently concealed the extent of his assets prior to execution of the agreement. In light of the master's finding, which the judge confirmed and which is supported by the record, the plaintiff cannot prevail under the Wellington rule. Accordingly, we affirm the judgment for the defendants.

      2. Massachusetts stands alone in requiring the party seeking invalidation of an antenuptial agreement to show fraud. See 2 A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 90 (rev. ed. 1977); Annot., 27 A.L.R.2d 883–906 (1953 & Supp. 1978). The great majority of cases in other jurisdictions hold that the parties to an antenuptial agreement generally do not deal at arm's length. Rather, they occupy a relationship of mutual trust and confidence and as such must exercise the highest degree of good faith, candor, and sincerity in all matters bearing on the proposed agreement. 2 A. Lindey, supra at § 90-42-43. The burden is not on either party to inquire, but on each to inform for it is only by requiring full disclosure of the amount, character, and value of the parties' respective assets that courts can ensure intelligent waiver of the statutory rights involved. See, e.g., Guhl v. Guhl, 376 Ill. 100 (1941); Megginson v. Megginson, 367 Ill. 168 (1937); Denison v. Dawes, 121 Me. 402 (1922); Hartz v. Hartz, 248 Md. 47 (1967); Kaufmann Estate, 404 Pa. 131 (1961); McClellan Estate, 365 Pa. 401 (1950). See generally Annot., 27 A.L.R.2d 883, §§ 3, 4 (1953 & Supp. 1978).

      Although the Wellington court specifically acknowledged that a confidential relationship exists between parties to an antenuptial agreement, Wellington v. Rugg, supra at 36, its holding treats them as though they stood at arm's length. The decision cites G.S. Bower, Actionable Non-Disclosure § 135 (1915), Potts v. Chapin, 133 Mass. 276 (1882), and Windram Mfg. Co. v. Boston Blacking Co., 239 Mass. 123 (1921), all of which speak to rights between parties functioning in a commercial context. Wellington, supra at 35. Quoting from Windram, the Wellington court at 36 stated: “Mere silence on the part of the defendant is all that is charged. But failure to disclose known facts does not amount to fraud, and is not the basis of an action for deceit, unless the parties stand in such relation to one another that one is under legal or equitable obligation to communicate the facts to the other.” Although the court chose to view the confidential relationship between the parties in Wellington as not giving rise to an obligation to disclose, that case has been cited in subsequent opinions which impose a duty to disclose on parties occupying an obviously less delicate relationship. See, e.g., Goodwin v. Agassiz, 283 Mass. 358 (1933) (holding that the existence of a fiduciary relationship between corporate director and stockholder may give rise to a duty of disclosure).

      While we have, in fairness, followed the Wellington case in the instant matter, we think that to the extent that Wellington negates any duty of disclosure, we should abandon that precedent in favor of the more enlightened rules of other jurisdictions. Thus, in future cases involving agreements drawn after the publication date of this opinion, we shall feel free to hold that the parties by definition occupy a confidential relationship and that the burden of disclosure rests upon both of them.

      In judging the validity of such an antenuptial agreement, other relevant factors which we may consider are whether (1) it contains a fair and reasonable provision as measured at the time of its execution for the party contesting the agreement; (2) the contesting party was fully informed of the other party's worth prior to the agreement's execution, or had, or should have had, independent knowledge of the other party's worth; and (3) a waiver by the contesting party is set forth. [3] It is clear that the reasonableness of any monetary provision in an antenuptial contract cannot ultimately be judged in isolation. Rather, reference may appropriately be made to such factors as the parties' respective worth, the parties' respective ages, the parties' respective intelligence, literacy, and business acumen, and prior family ties or commitments.[4]

      We add that, even if we were to apply these factors and the “fair disclosure” rule to the instant case, it could be argued that the plaintiff here is not entitled to relief. This result might well be urged from all the circumstances, including the fact that she was advised by counsel that she should request disclosure but decided not to for fear it might result in no marriage. Neither was there the slightest evidence of coercion by the decedent against the plaintiff.

      The right to make antenuptial agreements settling property rights in advance of marriage is a valuable personal right which courts should not regulate destructively. Neither should the exercise of that right be looked upon with disfavor. Thus, we recognize that antenuptial agreements must be so construed as to give full effect to the parties' intentions, but we are concerned that such agreements be executed fairly and understandingly and be free from fraud, imposition, deception, or over-reaching.

      Judgment affirmed.

      [1] Of course, any rules that we might fashion instead would necessarily be framed in terms of the respective contractual positions of the parties, rather than in terms of “husband” and “wife.” See art. 1 of the Declaration of Rights of the Massachusetts Constitution, as amended by art. 106.

      [2] The master made no finding of fact with respect to this issue.

      [3] See, e.g., Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962); Hartz v. Hartz, 248 Md. 47 (1967); Kaufmann Estate, 404 Pa. 131 (1961); McClellan Estate, 365 Pa. 401 (1950). See generally 2 A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 90-36-37 (rev. ed. 1977). Cf. Friedlander v. Friedlander, 80 Wash.2d 293 (1972) (antenuptial agreement made in contemplation of divorce).

      As to the burden of proof in cases contesting the validity of antenuptial agreements, see, e.g., Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962); Guhl v. Guhl, 376 Ill. 100 (1941); In re Estate of Parish, 236 Iowa 822 (1945); Burns v. Spiker, 109 Kan. 22 (1921); Denison v. Dawes, 121 Me. 402 (1922); McClellan Estate, 365 Pa. 401 (1950); Friedlander v. Friedlander, 80 Wash. 293 (1972); Bibelhausen v. Bibelhausen, 159 Wis. 365 (1915). See also 2 A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 90-83-85 (rev. ed. 1977); Comment, Husband and Wife — Antenuptial Contracts, 41 Mich. L. Rev. 1133, 1137 (1943), and cases cited.

      [4] See, e.g., Estate of Nelson, 224 Cal. App.2d 138 (1964); DelVecchio v. DelVecchio, 143 So.2d 17 (Fla. 1962); Megginson v. Megginson, 367 Ill. 168 (1937); Parker v. Gray, 317 Ill. 468 (1925); Achilles v. Achilles, 151 Ill. 136 (1894); Hartz v. Hartz, 248 Md. 47 (1967); Rocker v. Rocker, 42 Ohio Op.2d 184 (1967); Bauer v. Bauer, 1 Or. App. 504 (1970); Kaufmann Estate, 404 Pa. 131 (1961). See generally 2 A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 90-37-38 (rev. ed. 1977).

      Child Custody: Parent's Homosexuality: Bezio v. Patenaude (1980)

      Editor's note: A Massachusetts Court found that a parent's homosexuality is not a basis for denial of custody of their children. The state may not deprive parents of custody of their children “simply because their households fail to meet the ideals approved by the community … [or] simply because the parents embrace ideologies or pursue lifestyles at odds with the average.” Debate concerning sexual orientation has become increasingly prominent in family law matters. This case, while having a direct impact only on Massachusetts law, is significant as a landmark at the gateway between eras: a past where homosexuality was treated as a crime or a mental illness, and a future looking toward equal marriage rights. While homosexuality is named here as the reason for a woman to sue for custody of the children she had given to a lesbian permanent guardian, the court concerns itself less with evaluating the acceptability of homosexuality—the objection to which is dismissed fairly quickly—and more with the legalities of custody battles between parents and guardians.

      381 Mass. 563 (1980)

      410 N.E.2d 1207

      BRENDA A. BEZIO

      vs.

      MAGDALENA PATENAUDE.

      Supreme Judicial Court of Massachusetts, Franklin.

      June 9, 1980.

      September 22, 1980.

      Present: HENNESSEY, C.J., QUIRICO, KAPLAN, WILKINS, LIACOS, & ABRAMS, JJ.

      William C. Newman & Wendy Sibbison for the plaintiff.

      Geoffrey A. Wilson (James A. Whitbeck, John M. Finn & Peter S. Johnson with him) for the defendant.

      John H. Henn, Sandra L. Lynch, Stefanie D. Cantor & John Reinstein, for the Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

      John P. Ward, John Rugheimer, Rosalie Davies & Don Martin, for the Gay & Lesbian Advocates & Defenders & another, amici curiae, submitted a brief.

      LIACOS, J.

      The plaintiff, Brenda King,[1] appeals from a judgment of the Franklin County Probate and Family Court denying her petition to remove the defendant, Magdalena Patenaude, as guardian and to regain custody of her two natural children. The plaintiff's application for direct appellate review to this court was granted. The judgment below is not supported by adequate findings as to the fitness of the mother. We reverse and remand. We summarize the facts and the proceedings below.

      In January, 1971, Brenda King, then age seventeen, was introduced by a pastor of a local church to Magdalena Patenaude, then age twenty-six. At that time Brenda was experiencing emotional problems, and it was thought that Magdalena, who had herself experienced similar difficulties in her early life, might provide friendship and guidance. They became close friends.

      Brenda's first child, a daughter, was born on December 6, 1972. Between December, 1972, and April, 1974, when Brenda married James L. Bezio, Brenda entrusted her child to the care of her friend Magdalena from time to time. After her marriage, Brenda and her husband and child lived with Magdalena for approximately three weeks. Brenda and her daughter then moved to North Carolina where James Bezio was stationed in the United States Army. In North Carolina Brenda, then pregnant with her second child, began experiencing medical problems related to her pregnancy. Brenda testified that she was unable to obtain adequate medical attention in North Carolina due to military bureaucracy and her lack of personal funds. In August, 1974, still suffering from complications attendant to the second pregnancy, Brenda returned to Greenfield, Massachusetts, and left her daughter with Magdalena. She returned to North Carolina for approximately one month.

      When Brenda was seven months pregnant she was hospitalized in Greenfield for pregnancy complications and potentially fatal, deep thrombophlebitis. At Brenda's request, her daughter was placed in Magdalena's care. Brenda underwent surgery for a pulmonary embolus, and the second daughter was delivered prematurely by caesarean section. Magdalena visited Brenda daily at the hospital. When Brenda was released, she and her two daughters went to live with Magdalena. The following day Brenda was readmitted to the hospital, and the two children remained with Magdalena. She again returned to Magdalena's home upon her release and remained there with the children until January, 1975, when she and the children went to stay with her parents.

      In April, 1975, Brenda was experiencing physical and emotional distress, and she arranged to leave her children with Magdalena for approximately one month. The younger child remained with Magdalena for an additional month. Shortly thereafter Brenda took both children to North Carolina. In September, 1975, Brenda returned to Massachusetts with her children for a visit. Brenda left the children with Magdalena and returned to North Carolina where she was again hospitalized for what was diagnosed as another attack of thrombophlebitis. In October, 1975, Brenda returned to Massachusetts at Magdalena's request. The younger child had been suffering from an attack of croup, and Magdalena had been experiencing some difficulty in securing medical care as she was not the child's legal guardian. Brenda met with the attending physician, and both women subsequently discussed the possibility of Magdalena's being appointed legal guardian of the children. Magdalena felt that if she were going to continue caring for the children, she should have legal authority to secure medical treatment for them.

      On November 21, 1975, Magdalena filed a petition for temporary and permanent guardianship in the Franklin County Probate and Family Court. Brenda assented, and Magdalena was appointed temporary guardian with custody. Soon thereafter problems developed between the two women regarding visitation rights. In February, 1976, temporary custody was returned to Brenda with Magdalena's assent. On May 11, 1976, the Probate Court judge continued temporary custody in the mother for another three months. Later the same day, however, the two women talked, and Brenda became upset and unsure of her ability to care properly for the children. Brenda decided to leave the children with Magdalena. When the probation officer assigned by the court to supervise the children's custody learned of this development, he filed a report with the court. As a result of his report the court returned temporary custody of the children to Magdalena.

      In October, 1976, Brenda assented to Magdalena's appointment as permanent guardian with custody. Both women were represented by the same attorney. The judge granted Brenda the right to visit the children at Magdalena's home “at all reasonable times and occasions.” At this time Brenda was experiencing extreme financial difficulty, and symptoms of deep thrombophlebitis persisted.[2] Prior to the court's allowance of the permanent guardianship petition, Brenda had written the court a letter stating that she believed Magdalena to be “the only one fully qualified to raise my children in a manner which I myself would do if I could.”

      After Magdalena's appointment as permanent guardian, difficulties arose over visitation rights. As a result, Brenda and her then husband, James, filed the present petition to vacate the guardianship in February, 1977.[3] Brenda also filed a motion for visitation rights. The judge ordered that Brenda be allowed to visit her children every other Saturday from 1 P.M. to 4 P.M.

      In April, 1977, Brenda's parents filed a petition for guardianship. The judge appointed a guardian ad litem who reported in May, 1977: “Ms. Bezio lives in what she describes as a ‘lesbian relationship’ with a young woman. At this time she is not seeking custody of her children feeling that her chosen life style could cause problems for the children. Having battled with her own inner conflicts of gender identification for years, she does not wish to in any way influence her children…. Of striking concern to Ms. Bezio is the feeling that Mrs. Patnode [sic] is depriving her children of their identity and family heritage…. Ms. Bezio is anxious for her children to be placed in the custody of their grandparents and feels that her previous conflicts with them have been resolved.” Brenda's parents withdrew their petition for guardianship in November, 1977. The judge, in his findings, indicated that the petition filed by Brenda and James in 1977 was not heard on its merits until September, 1979, due to the illness of the probation officer who had rendered a report, and the petitioner's inability to pay her lawyer.

      From October, 1976, until June, 1978, the children were in Magdalena's care, and Brenda regularly exercised her visitation rights. However, on July 22, 1978, Brenda took her children for a regularly scheduled visit and failed to return them. From July 22, 1978, to November 2, 1978, the children lived with Brenda in Vermont. Brenda set up a home there and enrolled the children in school. The older daughter's first grade teacher testified that the child made rapid progress in acquiring the educational skills which she lacked at the beginning of the year. The teacher attributed this rapid progress to Brenda's work with the child at home. Brenda's landlady, coincidentally an experienced social worker, testified that Brenda's apartment was cheerful, clean, and decorated with the children's drawings. The landlady described Brenda's relationship with her children as “relaxed” and “well controlled.” “The children seemed happy with it.” A Vermont Department of Public Health supervisor described Brenda's apartment as “very clean, very neat and very comfortable.” She observed “good rapport” between Brenda King and her children, laughter and conversation, “a good strong relationship.”

      In November, 1978, Brenda was arrested on a Massachusetts warrant for kidnapping and the children were returned to Massachusetts. A Vermont police officer involved in executing the warrant testified that the children said they loved their mother and did not want to go back to Magdalena. After the children were returned to Magdalena, the complaint against Brenda was dismissed.

      Brenda returned to Massachusetts and caused a care and protection complaint to be filed in the District Court of Franklin County against Magdalena. In mid-December, 1978, the children were moved to a neutral foster home. The women were granted visitation rights on alternate weeks. A social worker from the Department of Public Welfare testified that she and other social workers found that charges against Magdalena of neglect and sexual abuse of the children were unsubstantiated, and recommended to the court that the children be returned to the guardian's home. The District Court judge so ordered and at the same time denied the mother all visitation rights for three months. The probate judge concluded that the guardian did not sexually abuse the children and that the “allegation was engendered by the bitterness caused by this litigation.”

      Brenda, disturbed by her inability to see her children, entered the Elizabeth Stone House in Boston. The Stone House is a home for care, treatment and rehabilitation of persons coming out of stressful situations. Brenda resided at the home from March to June, 1979, and since that time has returned for weekly visits. A psychotherapist to whom Brenda was referred by the Stone House testified that Brenda did not suffer from any mental disease, and that her therapy was for support in dealing with the separation from her children. A psychologist testified that Brenda's mental health was good and that she was a “very capable and competent mother.”

      In May, 1979, Brenda secured visitation rights with her children through an order of a judge of the District Court of Franklin. Visitation was supervised by a counselor with the New England Learning Center for Women in Transition (NELCWIT) who testified that the children were happy to see their mother. She stated, “I saw an increasing exchange of love displayed in hugs and kisses, a sharing of their past experiences that they would recall and laugh about.” Another NELCWIT child care worker who supervised nineteen hours of visits testified that she observed a normal, loving mother-daughter relationship. A child therapist from NELCWIT concurred stating that Brenda “put a lot of effort into making sure each child got an equal share of her attention.”

      Brenda proposes to have the children live in her apartment with her if she regains custody. The probate judge indicated in his findings that she is “living in an active practicing homosexual relationship with a young teacher.” Uncontradicted expert testimony was presented at trial to the effect that a parent's sexual preference per se is irrelevant to a consideration of that parent's ability to provide necessary love, care, and attention to a child. However, the judge concluded that the “environment in which [Brenda] proposes to raise the children, namely, a Lesbian household, creates an element of instability that would adversely [a]ffect the welfare of the children.”[4] This factor along with the mother's “unwillingness or inability in the past to assume the responsibility of their care” was part of the basis on which the judge concluded that Magdalena should not be removed as guardian and custodian of the children.[5]

      In deciding that the guardian should retain custody, the judge noted that Magdalena “has provided an excellent home and care for these children. She loves the children and they love her. The children love their natural mother and desire to visit with her but they regard the defendant as their real mother…. It would cause great trauma with the children to remove them from a home where they are happy and secure and from the custody of one who loves them and has their welfare at heart. Their best interest requires that they remain with the defendant.”

      The plaintiff claims error on a variety of grounds. We consider only those issues dispositive of this appeal. The plaintiff contends, and we agree, that it is a fundamental principle that “the Commonwealth may not attempt to force the breakup of a natural family without an affirmative showing of parental unfitness.” Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979).[6] Relying upon this proposition, the mother argues that the Probate Court judge erred by failing to apply the “fitness of a parent” test and by ignoring the presumption that a child's welfare is ordinarily furthered by being in the care and custody of a natural parent. The mother takes the position that since the custody provision of the guardianship statute, G.L.c. 201, § 5,[7] requires a showing of parental unfitness in order to deprive that parent of custody, the same standard of proof should apply where the parent petitions to revoke a guardianship previously entered upon her assent.

      The guardian argues that the Probate Court judge correctly applied the “best interests of the children” test in this case. The guardian contends that the mother's voluntary assent to the October, 1978, guardianship petition constituted a waiver of her natural custodial rights; the Probate Court judge, not being called upon to “force the breakup of a natural family,” was not required to apply the “unfitness of the parent” test. Thus, the guardian claims where, as here, the guardian has already been appointed and awarded custody, G.L.c. 201, § 5, does not apply. The guardian argues that this case should be governed by the guardian removal provision contained in G.L.c. 201, § 33, which provides in pertinent part: “If a guardian or conservator becomes mentally ill or otherwise incapable of performing his trust or is unsuitable therefor, the probate court, after notice to him and to all persons interested, may remove him.”

      In order to determine the appropriate standard for deciding the case at bar, it is useful to review other cases decided by this court where a natural parent sought to remove a guardian and regain custody of minor children. In Duclos v. Edwards, 344 Mass. 544 (1962), a guardian of three minor children appealed from a Probate Court judge's decree removing her as guardian and awarding custody of the children to their natural father. Following marital difficulties, the parents of the Duclos children had the children placed in the Edwards home. Soon after the mother's death which occurred a few years later the father consented to Edwards' appointment as guardian. Approximately nine years after the original placement of the Duclos children in the Edwards home, the father, then remarried, petitioned to remove Edwards as guardian and to regain custody. The guardian agreed that the father should have custody of the two older children. Only the custody of the youngest child was in issue. The Probate Court judge found that the father was not an unfit person; that he was able to care properly for his three children; and that the welfare of the children warranted removing the guardian “so as to enable the father … to have his entire family with him in his new home.” Id. at 546. This court affirmed the probate judge's decree.

      We framed the issue in Duclos with reference to the guardian removal provision contained in G.L.c. 201, § 33,[8] stating: “Unsuitability, as that term is used in the statute, is not to be adjudged solely by an examination of the character, capacity, and conduct of the guardian…. All factors should be considered and ‘adjudged with reference primarily to the welfare of the child.’ See Cassen v. Cassen, 315 Mass. 35, 37 [1943]. This is the paramount consideration…. Admittedly, the order of the judge is a distressing one for the [guardian] and perhaps even for the child. Yet it is ‘important in the long view that the child should be reared with her own next of kin and in companionship with her own’ sisters. Stinson v. Meegan, 318 Mass. 459, 465 [1945]. This helps to create a normal family relationship which may well prove to be of inestimable future benefit to all of the children.” Duclos v. Edwards, supra at 546.

      Duclos lends support to the guardian's contention that a case such as the one at bar should be decided with reference to the guardian removal provision contained in G.L.c. 201, § 33. Duclos did, as the guardian suggests, interpret the term “unsuitable,” as it is used in the guardian removal provision with primary reference to the best interests of the child. However, in the case at bar the plaintiff mother's position is also supported by the Duclos case. The judge in Duclos did give considerable weight to the importance of the child's being reared in a normal family relationship with her own next of kin. Moreover, any emotional trauma to the child and the guardian resulting from removal of the guardian was considered less significant than the importance of reuniting the natural family. In further support of the plaintiff's position is the judge's explicit finding in Duclos that the natural parent was not “unfit.” The plaintiff, of course, argues that a finding of parental unfitness is always required in order to deprive a parent of child custody. We conclude that Duclos stands for the following proposition: Where a natural parent is fit to further the best interests of the child, the natural bond between that parent and child normally would render an otherwise suitable guardian an “unsuitable” custodian within the meaning of G.L.c. 201, § 33.

      In Wilkins v. Wilkins, 324 Mass. 261 (1949), as in Duclos, the guardian of a minor child appealed from a Probate Court judge's decree removing her as guardian and awarding custody of the child to the natural parents. The guardian, who was appointed in March, 1944, was a sister of the child's father. The circumstances surrounding the appointment were that the father, who was engaged in military service abroad, assented in writing, and the mother was found unfit to have custody. In March, 1947, the parents petitioned for removal of the guardian alleging that the husband had always been a fit person and that the wife had now become a fit person. The Probate Court judge found the mother unfit to have custody. The judge did not find the father, considered apart from the mother, unfit to have custody.

      The guardian in that case was described by the judge as “a graduate nurse, of great poise and culture …, familiar with children, strongly attached to the child, and devoted to her.” Id. at 263. He further indicated that “[t]he child loves the guardian and her family, and distrusts her parents. The visits of her parents have been infrequent, and have resulted in worrying the child, who lost weight and woke up at night with ‘screaming nightmares.’” Id.

      The judge concluded that if the child were returned to the parents, “the effect of the emotional shock upon her would probably injure her future. The welfare of the child would be served by leaving her where she is.” Despite this conclusion the judge ordered the child returned to her parents. This court reversed. Id. at 263–264.

      We assumed, without deciding, that the parents had a right to revocation of the decree of guardianship unless the facts were such as would warrant an original appointment with custody under G.L.c. 201, § 5. We then explained that “[i]n determining whether parents are unfit, the most important consideration is whether the welfare of the child would be served by custody in them or in a guardian…. It has been said that ‘unfit’ means ‘unsuitable, incompetent, or not adapted for a particular use or service’” (citations omitted). Wilkins, supra at 262–263. We concluded that the parents, jointly, taken as a couple, were unfit to have custody within the meaning of G.L.c. 201, § 5.

      Wilkins lends support to the plaintiff's contention that a case such as the one at bar should be decided with reference to the custody provision of the guardian statute contained in G.L.c. 201, § 5. The question of custody in Wilkins turned on our decision that the parents, as a couple, were “unfit” to have custody within the meaning of G.L.c. 201, § 5. However, we also indicated that the welfare of the child is the most important consideration in determining whether the parents are fit to care for their child. That the child suffered “screaming nightmares” after visiting her parents bore heavily on our determination whether the natural parents were fit to have custody.

      Wilkins and Duclos suggest that the custody provision of the guardianship statute, G.L.c. 201, § 5, and the guardian removal provision, G.L.c. 201, § 33, are to be read together in an appropriate case. In both cases there were explicit findings regarding the fitness of the parents. Likewise, each case contained findings relative to the suitability of the guardian. More importantly, both cases stand for the proposition that all factors should be considered with primary reference to the welfare of the child. Duclos, supra at 546. Wilkins, supra at 262.

      In Duclos, the balancing of factors resulted in a decision that the importance of the child's being raised with her natural family outweighed any emotional distress the child might suffer from removal of the guardian. In Wilkins, on the other hand, the extreme emotional trauma suffered by the child after visits with her parents tipped the balance against reuniting the child with her natural parents. This court, in Wilkins, suggested that if returning custody to the natural parents would be seriously detrimental to the welfare of the child, then the parents could be considered to be unfit (“unsuitable, … not adapted for a particular use or service,” Wilkins, supra at 262–263, citing Richards v. Forrest, 278 Mass. 547, 552 [1932]) within the meaning of G.L.c. 201, § 5. On the other hand, if the parents are fit, then the guardian is to be deemed “unsuitable” within the meaning of G.L.c. 201, § 33. We note that the judge's findings in the case at bar do not suggest that the children suffer severe emotional trauma as a result of visits with their mother. In fact, the judge finds to the contrary: “The children love their natural mother and desire to visit with her….”

      Perkins v. Finnegan, 105 Mass. 501 (1870), and Malkin v. Pine, 351 Mass. 358 (1966), are also cases involving custody disputes between natural parents and guardians which confirm this view. While neither Malkin v. Pine, supra, nor Perkins v. Finnegan, supra, cites any provision of the guardianship statute (G.L.c. 201, § 5, was formerly codified in Gen. Stats. c. 109, § 4 [1860], and G.L.c. 201, § 33, was formerly codified in Gen. Stats. c. 109, § 24 [1860]), both cases highlight the importance of the natural bond between parent and child. We conclude, on the basis of the cases discussed, that the guardian's contention that the mother's voluntary assent to the October, 1978, guardianship petition constituted a waiver of her natural custodial rights is without merit. The appointment of a guardian did not diminish the weight accorded to the natural bond between parent and child.

      Our review of other cases where the parents sought to remove their children from the custody of persons who were not legal guardians reveals virtually the same analysis as in the above-cited cases. See, e.g., Kauch, petitioners, 358 Mass. 327 (1970); Stinson v. Meegan, 318 Mass. 459 (1945), S.C. 319 Mass. 682 (1946); Gordon v. Gordon, 317 Mass. 471 (1945); Richards v. Forrest, 278 Mass. 547 (1932). We believe that it would be inappropriate to draw a distinction between cases where parents make informal arrangements for their children and cases where parents conscientiously utilize the guardianship statute to make legally proper arrangements for their children.[9] In both types of cases the natural bond between parents and children should be accorded great weight. Natural parents should be denied custody only if they are unfit to further the welfare of their children.

      To the extent that cases such as the one at bar may be decided with reference to a particular test or standard, we believe that the critical question is whether the natural parents are currently fit to further the welfare and best interests of the child.[10]7 Neither the “parental fitness” test nor the “best interests of the child” test is properly applied to the exclusion of the other. This is in accord with what we said in Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631 (1975). In that case we indicated that the “best interests of the child” test and the “unfitness of the parent” test “reflect different degrees of emphasis on the same factors, that the tests are not separate and distinct but cognate and connected,” Id. at 641.

      The probate judge below made no finding that the mother was currently unfit to further the welfare of her children. His finding that the mother is “unsuitable to have the custody of the children because of her unwillingness or inability in the past to assume the responsibility of their care” is insufficient to support his conclusion that custody should remain in the guardian. While it is true that “an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child” (Custody of a Minor (No. 1), 377 Mass. 876, 883 [1979]), the critical inquiry is “current parental [fitness]” (id.). Mere failure to exercise custodial rights in the past, particularly where a parent has voluntarily relinquished custody “for appropriate reasons” (Little Wanderers, supra at 640), does not support a conclusion that such parent is unfit to further the welfare of the child. In Duclos v. Edwards, supra, a parent who relinquished custody to a guardian for approximately ten years for reasons no more compelling than those asserted by the mother in the case at bar[11] was not found to be unfit. See Perkins v. Finnegan, supra (parent who relinquished custody to a guardian for approximately six years not found unfit); Malkin v. Pine, supra (parent who relinquished custody to guardians for approximately two years not found unfit). See also Kauch petitioners, supra; Stinson v. Meegan, supra; Gordon v. Gordon, supra; Richards v. Forrest, supra.

      The judge's finding that “[t]he environment in which [the mother] proposes to raise the children, namely, a Lesbian household, creates an element of instability that would adversely affect the welfare of the children” is also insufficient to support the judge's conclusion that custody should remain in the guardian. Our reading of the record does not support an inference that the mother's lesbianism would render her unfit to further her children's welfare. Both parties introduced evidence to the effect that a mother's sexual preference per se is irrelevant to a consideration of her parental skills. Dr. Alexandra Kaplan, a clinical psychologist and professor of psychology at the University of Massachusetts, testified as follows: “[T]here is no evidence at all that sexual preference of adults in the home has any detrimental impact on children…. [M] any other issues influence child rearing. Sexual preference per se is typically not one of them….” Defendant's counsel questioned further: “[T]here is nothing to prove that a homosexual relationship would make or in any way influence a child to be a homosexual rather than a heterosexual?” Dr. Kaplan responded: “Quite [to] the contrary…. [M]ost children raised in a homosexual situation become heterosexual as adults…. There is no evidence that children who are raised with a loving couple of the same sex are any more disturbed, unhealthy, maladjusted than children raised with a loving couple of mixed sex. [Sexual orientation of the parent] is irrelevant to [the child's] mental health.” Psychologist David Johnson, a defense witness who had seen the children in play therapy, concurred with Dr. Kaplan's opinion that homosexuality per se is irrelevant to parental ability.

      A finding that a parent is unfit to further the welfare of the child must be predicated upon parental behavior which adversely affects the child. The State may not deprive parents of custody of their children “simply because their households fail to meet the ideals approved by the community … [or] simply because the parents embrace ideologies or pursue life-styles at odds with the average.” Custody of a Minor (No. 2), 378 Mass. 712, 719 (1979). See M.P. v. S.P., 169 N.J. Super. 425 (1979). In the total absence of evidence suggesting a correlation between the mother's homosexuality and her fitness as a parent, we believe the judge's finding that a lesbian household would adversely affect the children to be without basis in the record. This is not a matter about which the judge could take judicial notice. “Matters are judicially noticed only when they are indisputably true…. Judicial notice is not to be extended to personal observations of the judge….” Nantucket v. Beinecke, 379 Mass. 345, 352 (1979). See W. B. Leach & P. J. Liacos, Massachusetts Evidence 27, 34–39 (4th ed. 1967), and cases cited therein.

      The only finding on the issue of current parental fitness is the judge's finding that, “[a]lthough the plaintiff's psychological and emotional condition has improved, the elements of instability that have plagued the plaintiff's relationship with her children are still present.” Whether the mother is currently fit to advance the best interests of her children is a question that should be resolved on remand by the Probate Court judge. His opportunity to observe the parties first hand is entitled to great weight. Moreover, nearly a year has passed since the trial below, and new evidence may be required to determine the issues. See Stinson v. Meegan, 318 Mass. 459, 466 (1945).

      Accordingly, the judgment is reversed and remanded for further proceedings consistent with the opinion expressed herein.[12]

      So ordered.

      [1] The plaintiff filed her petition in 1977 under her married name, Brenda A. Bezio. She has since resumed the use of her maiden name, Brenda King.

      [2] Two doctors who had treated Brenda for symptoms of deep thrombophlebitis testified that at the time of the trial she was no longer in any significant danger from this condition. One doctor who had first examined Brenda in March, 1979, testified that his diagnosis of her symptoms was that she was suffering from asthma.

      [3] The plaintiff was subsequently divorced from James Bezio and, by amendment, this action was discontinued with reference to him. See note 12, infra.

      [4] The judge also indicated in his findings that the early association between Magdalena and Brenda “may have had a homosexual basis.”

      [5] The judge ordered that the mother be allowed to visit the children two hours each week under supervision.

      [6] “That a finding of current parental unfitness is required in a proceeding which results in a parent's loss of child custody derives from the substantial respect we accord family autonomy. The existence of a ‘private realm of family life which the state cannot enter,’ Prince v. Massachusetts, 321 U.S. 158, 166 (1944), is a cardinal precept of our jurisprudence” (citations omitted). Custody of a Minor (No. 1), 377 Mass. 876, 880 (1979).

      [7] General Laws c. 201, § 5, provides in pertinent part: “The guardian of a minor shall have the custody of his person and the care of his education, except that the parents of the minor, jointly, or the surviving parent shall have such custody and said care unless the court otherwise orders. The probate court may, upon the written consent of the parents or surviving parent, order that the guardian shall have such custody; and may so order if, upon a hearing and after such notice to the parents or the surviving parent as it may order, it finds such parents, jointly, or the surviving parent, unfit to have such custody; or if it finds one of them unfit therefor and the other files in court his or her written consent to such order.”

      [8] See text, supra at 571.

      [9] At this point it is useful to note the distinction between parental consent to a guardianship and parental consent to an adoption. When a child is adopted “all rights, duties and other legal consequences of the natural relation of child and parent … except as regards marriage, incest or cohabitation, terminate between the child so adopted and his natural parents and kindred.” G.L.c. 210, § 6. In contrast, when a guardian is appointed the parent-child relationship remains intact, and the parent is deprived of custody only by consent or if found “unfit to have such custody.” G.L.c. 201, § 5. There was no finding of unfitness when the plaintiff voluntarily surrendered custody of her children to the guardian. Whereas the effect of releasing a child for adoption involves a most serious waiver of rights, the Legislature has created a statutory consent form which gives precise and detailed notice. G.L.c. 210, § 2. By comparison, the guardianship petition on which the mother in the case at bar placed her signature contains no such notice of an unconditional surrender. For discussion of the peculiar legislative standards dealing with adoption procedure under G.L.c. 210, §§ 3, 3A, see Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631 (1975).

      [10] We need not reach the mother's further argument that the “unfitness” test is constitutionally required here as we have disposed of the issue on the basis of our case law. “'[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.'” Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 854 (1980), appeal filed 48 U.S.L.W. 3786 (No. 79-1862 May 23, 1980), quoting from Fazio v. Fazio, 375 Mass. 394, 405 (1978).

      [11] The judge found that “[b]ecause of ill health and mental and emotional problems, the plaintiff has been unable to cope with the problem of caring for her two children. Because her parents disapprove of her life style, she early turned to the defendant for support in the caring and rearing of her two children.”

      [12] The record does not indicate whether or not James Bezio assented to his removal as a party in this action. He is entitled to notice and an opportunity to be heard before he is denied custody of his natural daughter. See Stanley v. Illinois, 405 U.S. 645 (1972). Cf. G.L.c. 201, § 2; Barry v. Sparks, 306 Mass. 80, 84 (1940).

      Abortion: Wife Must Notify Husband: Scheinburg v. Smith (1981)

      Editor's note: A Florida statute required that a wife must notify her husband of her intent to have an abortion citing the “husband's interest in the procreative potential of the marriage.” The case that follows, which originated in Florida and was reheard by the Fifth Circuit Court of Appeals, was a response to the 1979 Florida law requiring married women choosing to terminate a pregnancy to notify their husbands and allow them to consult with them on their choice. Further, unmarried minors required the permission of their parents. A class action complaint was filed on the grounds that this was a violation of constitutional rights to privacy. The appellate court's decision is mixed,finding that in the case of married women, spousal notification protects the husband's rights and promotes the marital relationship—two goods that outweigh the infringement of privacy. The decision includes an interesting discourse on the role of the state in marital matters.

      659 F.2d 476 (1981)

      Mark N. SCHEINBERG, M.D., on his behalf and on behalf of all others similarly situated, Plaintiff-Appellee,

      v.

      James C. SMITH, Attorney General of Florida and Michael J. Satz, State Attorney, Seventeenth Judicial Circuit, Florida, Defendants-Appellants. No. 80-5023.

      United States Court of Appeals, Fifth Circuit.[*] Unit B

      October 2, 1981.

      Rehearing and Rehearing Denied December 30, 1981.

      Gerald B. Curington, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla., for defendants-appellants.

      Bruce S. Rogow, Fort Lauderdale, Fla., for plaintiff-appellee.

      Before TJOFLAT, HATCHETT and THOMAS A. CLARK, Circuit Judges.

      Rehearing and Rehearing En Banc Denied December 30, 1981.

      TJOFLAT, Circuit Judge:

      This is an appeal of a district court determination that certain of Florida's statutory provisions, Fla.Stat.Ann. § 390.001(4)(a) & (b) (West 1981) (previously codified as part of the Medical Practice Act, see Fla.Stat.Ann. § 458.001 et seq. (West 1977)), unconstitutionally burden a woman's fundamental right of privacy in the abortion decision. We affirm the district court in part, vacate in part and remand for further proceedings.

      I

      In 1979 the Florida Legislature enacted the Medical Practice Act, which included a provision regulating abortions; relevant here are those subsections governing abortions sought by unmarried minors and by married women. Subsection 4(a), Fla.Stat. Ann. § 390.001(4)(a) (West 1981), establishes that in order to obtain an abortion, an unmarried minor must have “either the written informed consent of a parent, custodian, or legal guardian or an order from the Circuit Court.” Scheinberg v. Smith, 482 F.Supp. 529, 532 (S.D.Fla.1979). In full, subsection 4(a) reads

      (4) Prior to terminating a pregnancy, the physician shall obtain the written informed consent of the pregnant woman or, in the case of a mental incompetent, the written consent of the court-appointed guardian.

      (a) If the pregnant woman is under 18 years of age and unmarried, in addition to her written request, the physician shall obtain the written informed consent of a parent, custodian, or legal guardian of such unmarried minor, or the physician may rely on an order of the circuit court, on petition of the pregnant unmarried minor or another person on her behalf, authorizing, for good cause shown, such termination of pregnancy without the written consent of her parent, custodian, or legal guardian. The cause may be based on a showing that the minor is sufficiently mature to give an informed consent to the procedure, or based on the fact that a parent unreasonably withheld consent by her parent, custodian, or legal guardian, or based on the minor's fear of physical or emotional abuse if her parent, custodian, or legal guardian were requested to consent, or based upon any other good cause shown. At its discretion the court may enter its order ex parte. The court shall determine the best interest of the minor and enter its order in accordance with such determination. Fla.Stat.Ann. § 390.001(4)(a) (West 1981).

      Subsection 4(b) requires “a wife who is neither ‘separated or estranged’ [to] furnish her husband with notice of the proposed abortion and [to] allow him the opportunity to consult with her concerning the procedure,” Scheinberg, 482 F.Supp. at 532, and reads

      (b) If the woman is married, the husband shall be given notice of the proposed termination of pregnancy and an opportunity to consult with the wife concerning the procedure. The physician may rely on a written statement of the wife that such notice and opportunity has been given, or he may rely on the written consent of the husband to the proposed termination of pregnancy. If the husband and wife are separated or estranged, the provisions of this paragraph for notice or consent shall not be required. The physician may rely upon a written statement from the wife that the husband is voluntarily living apart or estranged from her.

      Fla.Stat.Ann. § 390.001(4