Rosenbaum v. LaMontagne ( 1975 )

The petitioner, the adjudicated father of a minor child, filed two petitions seeking custody of the child. (One petition requested custody and the other, guardianship with custody.) The petitioner appeals from decrees of a judge of the Probate Court dismissing both petitions, with prejudice, for the reason that the petitioner had failed to comply with an order of the court requiring him to furnish a financial statement pursuant to Rule 49 of the Probate Court (1973). It was error to dismiss the petitions for the reason stated, because Rule 49 applies only to a proceeding in which a party requests an order granting, modifying, or terminating alimony or support payments. Such a request was not part of either petition, or of the respondent’s answer to either petition. The decrees dismissing the petitions must be reversed, and the case is remanded to the Probate Court for further proceedings upon the petitions.

So ordered.