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06/30/77 RICHARD C. KELSEY v. JOAN A. PANARELLI

June 30, 1977

RICHARD C. KELSEY
v.
JOAN A. PANARELLI



Petition filed in the Probate Court for the county of Norfolk on November 4, 1974. The case was heard by Podolski, C.J.

Keville, Armstrong, & Brown, JJ. Armstrong, J., Concurring.

SYLLABUS BY THE COURT

Minor. Parent and Child. Divorce, Support of child. Practice, Civil, Appeal. Constitutional Law, Equal protection of laws.

The opinion of the court was delivered by: Brown

Notwithstanding the fact that Massachusetts has provided by statute that eighteen shall be the age of majority, a Probate Court had the authority under G. L. c. 208, § 28, to make appropriate orders of maintenance of any child under the age of twenty-one years. [481]

Where it appeared that an appellant sought to raise the issue of the unconstitutionality of G. L. c. 208, § 28, for the first time on appeal, this court did not consider it [481-482]; Armstrong, J., Concurring in the result on the ground that the appellant's constitutional argument was without merit [482-483].

The plaintiff (husband) appeals from a judgment of a Probate Court finding that he was still liable for support payments for a child who had attained the age of eighteen years.

The facts are agreed. A decree nisi of divorce was granted to the husband on April 16, 1964. The wife was given custody of the three minor children of the parties. The husband was "ordered to pay to [the wife] . . . the sum of two hundred (200) dollars per month for the support of said minor children, plus all health and hospital benefits which the children are entitled to through his military service. All until the further order of the Court." On November 4, 1974, the husband petitioned for a modification of his support order and on November 13, 1975, he filed an amended petition requesting reduction of his support order because two of his children had reached the age of eighteen. At the time of the hearing on February 2, 1976, the eldest child was nineteen years old and unemployed. The middle child was eighteen years old and attending public school. The youngest child was sixteen years old and attending public school. All the children were living with the wife. On February 2, 1976, the Probate Court entered an order reducing the husband's child support obligation to $175 per month for the support of the two younger children.

1. Notwithstanding the fact that Massachusetts has provided by statute that eighteen shall be the age of majority except as otherwise specifically provided by law (G. L. c. 4, § 7, Forty-eighth through Fifty-first, c. 231, §§ 85O, 85P), the Probate Court had the authority to "make appropriate orders of maintenance of any child who has attained age eighteen years but who has not attained the age of twenty-one years and who is living in the home of a parent, and is principally dependent upon said parent for maintenance." G. L. c. 208 § 28, as amended by St. 1975, c. 661, § 1. Orlandella v. Orlandella, 370 Mass. 225, 230 (1976).

2. The plaintiff raises the interesting argument that § 28 impermissibly discriminates against divorced parents in violation of the United States and Massachusetts Constitutions. See and compare Childers v. Childers, 15 Wash. App. 792, 795-796 (1976). In order for us to rule on this question we would have to decide whether G. L. c. 208, § 28, allows a Probate Court Judge to impose a support order for the benefit of any child between the ages of eighteen and twenty-one who is living in the home of a parent and who is principally dependent on said parent for maintenance, or whether it applies only to the children of divorced parents who otherwise meet the statutory criteria listed above. If we rule that the statute applies only to divorced parents or at least to parents, such as the defendant, subject to support orders originally entered prior to January 1, 1974 (the date eighteen became the age of majority for certain legal purposes; G. L. c. 4, § 7, Forty-eighth through Fifty-first, as appearing in St. 1973, c. 925, § 1), we would have to respond to the plaintiff's equal protection argument. See generally Manganaro Drywall, Inc. v. White Constr. Co. Inc. 372 Mass. 661, 663 (1977).

However, there is no indication from the plaintiff's amended petition and other pleadings or from "the agreed statement of the proceedings and evidence" (filed under Mass.R.A.P. 8 , 365 Mass. 850-851 [1974]), which appears to be all that was before the probate Judge (Renda v. Gouchberg, 4 Mass. App. Ct. 786 [1976]), that the plaintiff argued this issue before the probate Judge. See John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719, 724 (1976). As the issue cannot be raised for the first time on appeal, we do not consider it. Henchey v. Cox, 348 Mass. 742, 747 (1965). Milton v. Civil Serv. Commn. 365 Mass. 368, 379 (1974). Schlichte v. Schlichte, 2 Mass. App. Ct. 862, 863 (1974).

Judgment affirmed.

Armstrong, J. (concurring).

The judgment appealed from in this case ordered the plaintiff to contribute to the support of a child over the age of eighteen years and necessarily implied a ruling by the Judge that he was empowered to make such an order. The record reveals nothing of the legal arguments the plaintiff made in the trial court and affords no basis for an inference that the plaintiff waived or abandoned any particular legal argument, constitutional or otherwise, bearing on the ruling in question. Therefore this case does not fall within the authority of the cases cited by the majority, all of which dealt with ...


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