Amato v. Amato

244 Mass. 349 | Mass. | 1923

Braley, J.

The parties were married in the State of New York and there lived together until the libellant, as the judge finds and reports, “broke up his home and moved to Boston,” the last of August 1913. The libellee refused to accompany him nor have they ever lived together in this Commonwealth. It may be conceded that unless plainly unreasonable her refusal was legally unjustifiable, and the libellant having lived here for five years last preceding the filing of the libel on October 14, 1921, “ a divorce may be decreed for any cause allowed by law, whether it occurred in this Commonwealth or elsewhere, unless it appears that the libellant has removed into this Commonwealth for the purpose of obtaining a divorce.” Franklin v. Franklin, 190 Mass. 349. G. L. c. 208, § 5. The material allegation is, that the libellee at “Brooklyn, in the State of New York, ... on the third day of July, A. D. 1913, utterly deserted your Libellant,” and has continued such desertion for more than three consecutive years prior to the filing of this libel. G. L. c. 208, § 1. But it appears from an authenticated copy of the proceedings and judgment properly introduced in evidence by the libellee under her answer, and without objection by the libellant, that the “Domestic Relations Court of the Borough of Brooklyn, County of Kings,” on the complaint of the libellee, that the libellant had actually abandoned his wife and minor children without adequate support, to which he pleaded guilty, ordered July 9, 1913, the libellant to pay but not to exceed one year $8 weekly for their support and that this order was in force on July 11, 1913. G. L. c. 233, § 69. Bissell v. Wheelock, 11 Cush. 277, 279. The libellant also testified, that he agreed in writing to pay $8 a week for the support of his wife and child. The judgment on the record is to be given the same effect as that accorded to a similar judgment in our local courts, even if under our laws a decree or judgment in this exact form might not have been rendered. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159. U. S. Rev. Sts. § 905. United States National Bank v. Venner, 172 Mass. 449. Miller v. Miller, 150 Mass. 111. Watts v. Watts, 160 Mass. 464. The libellee accordingly had not deserted her husband as charged. But on that day by his own admission of guilt appearing in the judgment roll, as well as on the judgment itself, he had abandoned his family and failed and neglected to support his wife at their matrimonial home. See Lyster v. Lyster, 111 Mass. 327. By the terms of the report the libel must be dismissed. Harrington v. Harrington, 189 Mass. 281.

So ordered.