189 Mass. 281 | Mass. | 1905
[After the foregoing statement of the case.] There is no question as to the law, but there is a difficulty arising from contradictory statements in the report as. to what was before the Probate Court.
It is plain that the order of the Probate Court made on April 4,1901, was a final adjudication of all matters stated in the petition, with the exception of the custody of the minor children after May 1, 1901. That was in terms reserved for further consideration. The subsequent order as to the custody of the children was manifestly made under what is now R. L. c. 153, § 37, giving the Probate Court jurisdiction over the care, custody, education and maintenance of the children in case “the parents of minor children live separately.”
It is also plain that an order of the Probate Court on a petition for separate maintenance, while unrevoked, is a bar to the same extent as a judgment in an action at law. Miller v. Miller, 150 Mass. 111. Watts v. Watts, 160 Mass. 464, 465.
That is to say, the order on the petition for separate support was binding and conclusive here in the libel for divorce on all matters shown to have been put in issue or to have been necessarily involved and actually tried and determined, but not in regard to matters not then in controversy and not heard and determined, although it is conclusive so far as the final disposition of the prior cause of action is concerned. It was so laid down in Watts v. Watts, 160 Mass. 464, and it was in accordance therewith held in that case that a husband could maintain a libel for the adultery of his wife after a decree of the Probate Court adjudging that she was justifiably living apart from her husband.
If in the case at bar the wife in fact undertook to substantiate the allegation that she was justifiably living apart from her husband, by proving his adultery, she is now barred and the ruling was right. She is now barred, for the adjudication of the Probate Court was that at the time of filing the petition on April 24,1900, and from that time to the date of the order, April 4, 1901, the wife had been living apart from her said husband for a justifiable cause, “ but that said cause does not justify a permanent separation of said parties.” If the wife under her petition undertook to prove adultery, that is a finding that adultery
The statement of the report that the petition for separate support was a petition “ charging the libellee with adultery ” is contradicted by the petition itself, which is set out in full in the report. That is a petition not charging him with adultery, but with “ grossly lewd, wanton, libidinous and lascivious conduct, actions and behavior toward one Helen Hannington, a domestic in his employ, with whom he became improperly familiar to such an extent as to become wholly unbearable by your petitioner, and to seriously affect and undermine her health.”
It is stated in the report that in the Probate Court the wife filed specifications thereof [i. e. adultery] substantially the same as those filed in the libel for divorce, and that “ in the Probate Court the libellant introduced, among other competent testimony, evidence in support of all said charges and the libellee introduced evidence in denial thereof and substantive evidence of a condonation, which was contradicted.”
We assume in favor of the libellee that there were specifications filed in the Probate Court in addition to those set forth in the body of the petition for separate support.
What were they? The report states that they were “substantially the same as those filed in the libel for divorce.”
In the libel for divorce now before us there were originally eight specifications filed. After the libellee filed his answer two further specifications were filed. Seven of the original eight charge lewd conduct with the Helen Hannington, with whom the adultery now in question is charged to have been committed, and the eighth is a specification of cruel and abusive treatment consisting in the perpetration of a great number of acts of lewd conduct with the Hannington woman in the presence of his. wife, “ against her will,” and “ against her special request not. to do so.”
It is true that if all the facts of lewd conduct specified werefrue the inference that adultery had been committed would have been well nigh irresistible. But the specifications do not of themsélves nor by reference to the allegations of the petition of which they are the specifications, charge adultery. If these were
In addition to the original eight specifications filed in the libel for divorce now before us, there were two added by amendment after the libellee’s answer was filed. These two charge adultery. But the report states that in the libel now before us the “libellant charged adultery and cruel and abusive treatment, and filed specifications which were identical as to both offences charged.” The specifications which are “identical as to both offences charged ” are the first eight only.
In view of this statement and of the other contradictory statements of the report above mentioned, we are of opinion that as matter of construction of this report the “ charges ” in support of which the libellant introduced evidence in the Probate Court did not include the charge of adultery. No charge of adultery was made in the petition for separate support. No charge of adultery was made in the specifications (assuming that there were specifications there in addition to those set forth in the body of the petition) if the specifications there were the same as the eight originally filed here. As we have said, we are of opinion that as matter of construction of the report now before us the specifications there are to be taken to be the same as the eight originally filed here.
If this is not so, and the ninth and tenth specifications filed here were in fact filed there, that fact may be shown at the trial.
Case to stand for trial.
