Opinion
No. 06-1092.
March 9, 2007.
MEMORANDUM AND ORDER ON THE DEFENDANT ALAN LeBOVIDGE'S MOTION TO DISMISS
Before the Court is the defendant Commissioner of the Department of Revenue, Alan LeBovidge's (the "Commissioner's"), motion to dismiss the complaint. The complaint seeks a declaratory judgment that the alimony provisions of G.L. c. 208, § 34 violate his various state and federal constitutional rights to privacy, due process and equal protection. The plaintiff also claims that the statute violates the separation of powers and basic rights provisions of Articles 30 and 106, respectively, of the Declaration of Rights.
The Court has reviewed the papers submitted by the parties, and a hearing was held. At the hearing the Attorney General, representing the Commissioner, addressed the plaintiff's opposition, and the plaintiff expanded on the state and federal constitutional interests upon which he has based his challenge to the authority of the Commonwealth and its judicial officers to enforce obligations of divorcing spouses to pay alimony.
The Court ALLOWS the Commissioner's motion for the following reasons:
The Appeals Court in a 2006 opinion issued pursuant to Rule 1:28 addressed a substantively identical claim. Ganong v. Ganong, 66 Mass. App. Ct. 1108 (2006). The Court observed: "The husband's argument that the statute [G.L. c. 208, § 34] impermissibly interferes with his constitutional right to autonomous privacy. . . are not merely novel, they are 'so untenable as to be frivolous.' Allen v. Batchelder, 17 Mass.App.Ct. 453, 454 (1984)." This Court can perceive no reason to depart from the Appeals Court's conclusion.
The institution of marriage and the incidents of its dissolution deeply implicate the State's interest. This is directly reflected in the provisions of the Constitution of the Commonwealth. See Pt. 2, c. 3, art. 5 where "[a]ll causes of marriage, divorce, and alimony" [emphasis added] are provided to "be heard and determined by the governor and council, until the legislature shall, by law, make other provision." And the legislature, beginning in 1785, has made such provision by designating authority in the courts, most recently in 1986 by vesting exclusive original jurisdiction in the Probate and Family Court. St. 1986, c. 462, § 15.
In 2003 the SJC reaffirmed that the institution of marriage is "properly within the scope of [the Commonwealth's] police power." Goodridge v. Department of Pub. Health, 440 Mass. 309, 312 (2003). And arrangements for the terms of alimony fit comfortably within the exercise of such power. Further, there is no equal protection infirmity to the Commonwealth's statutory regime for alimony. Saraceno v. Saraceno, 369 Mass. 967 (1976).
The provisions of Pt. 2, c. 3, art. 5 of the Constitution of the Commonwealth and the cases cited above dispose of the plaintiff's Article 30 separation of powers claim, as well.
ORDER
The defendant Alan LeBovidge, Commisioner of the Massachusetts Department of Revenue's motion to dismiss is ALLOWED and the Plaintiff's complaint is DISMISSED against all parties.