Categories: Massachusetts Appellate Court Opinions

BROWN v. TOBYNE, 10 Mass. App. Ct. 833 (1980)

406 N.E.2d 1310

COLEEN BROWN vs. GERALD E. TOBYNE.

Appeals Court of Massachusetts.
July 16, 1980.

Faithful to the order of the Supreme Judicial Court (380 Mass. 941 [1980]), we have reconsidered our earlier holding in this case (9 Mass. App. Ct. 897 [1980]) in the light of the court’s decision in Murphy v. Murphy, 380 Mass. 454 (1980). The defendant’s motion under Mass.R.Dom.Rel.P. 12(b)(1) (1975) raised the question whether the minor child of the parties was an “inhabitant” or “resident” of the Commonwealth within the meaning of G.L.c. 208, § 29, as appearing in St. 1975, c. 400, § 30, so that the court would have jurisdiction to make an order providing for the “care, custody, education and maintenance” of the child under § 29.

The plaintiff had the burden of proving the jurisdictional facts. Thomson v. Gaskill, 315 U.S. 442, 446 (1942). Nichols Associates, v. Starr, 4 Mass. App. Ct. 91, 93-94 (1976). The allegations of the complaint, which

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was not signed under the penalties of perjury or sworn to before an officer authorized to take oaths (see G.L.c. 268, § 1A O’Brien, Russell Co. v. LeMay, 370 Mass. 243, 245 [1976]), did not supply the missing proof. Accordingly, we did not and do not reach the question considered in the Murphy case.

Judgment affirmed.

Mark I. Zarrow for the plaintiff.

Diane F. Paulson for the defendant.

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