311 Mass. 638 | Mass. | 1942
This is an appeal from a decree dismissing a libel for divorce. The case is here with a report of the evidence. The judge made no findings of fact. The practice upon probate appeals, including those upon libels for divorce, is the same as in equity in so far as practicable and applicable. Drew v. Drew, 250 Mass. 41. Goren v. Goren, 310 Mass. 284. It is our duty to examine the evidence and.to decide the case upon our own judgment, not only as to questions of law but also as to questions of fact. The trial judge, however, saw and heard the witnesses and was in a much better position than this court to determine their credibility, and for that reason his findings necessarily implied from the entry of the decree will not be reversed unless they are plainly wrong. Durfee v. Durfee, 293 Mass. 472. Berry v. Kyes, 304 Mass. 56.
A brief summary of the testimony is sufficient to set forth the salient facts. The former wife of the Iibellee secured a divorce nisi from him in the Probate Court in Springfield, on January 12, 1938. At that time, and for eighteen months prior thereto, the libellant had been keeping company with the Iibellee. She learned of the entry of the decree nisi soon after it was entered. On June 25, 1938, they left Springfield, where both of them resided and where each was employed, and went to New Lebanon, New York, where they were married. They knew they could not be married in this Commonwealth. They both testified that' they thought they could be legally married in New York, and if they did not live together as man and wife within this Commonwealth until after two years from
The former marriage of the libellee was not dissolved by the decree nisi entered on January 12, 1938, and he was a married man on June 25, 1938, when he went through a marriage ceremony with the libellant. Chase v. Webster, 168 Mass. 228. Koffman v. Koffman, 193 Mass. 593. Rollins v. Gould, 244 Mass. 270. Diggs v. Diggs, 291 Mass. 399. Vaughan v. Vaughan, 294 Mass. 164.
The libellant contends that she entered into the marriage contract in good faith and that the marriage became valid on July 12, 1940, two years after the decree nisi became absolute, and that she thereafter in good faith continued to live with him. This contention is based upon G. L. (Ter. Ed.) c. 207, § 6, but it finds no support in the testimony. The statute did not apply unless the libellant showed that she married the libéllee “in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage.” The implied finding of the judge that she was not acting in good faith or in ignorance of the marital status of the libellee was not only not plainly wrong but was warranted, if not required, by the testimony of the libellant herself and also by that of the libellee. The statute applies only to one who innocently intends honestly to contract a presently valid marriage. Lufkin v. Lufkin, 182 Mass. 476. Commonwealth v. Josselyn, 186 Mass. 186. Turner v. Turner, 189 Mass. 373. Hopkins v. Hopkins, 287 Mass. 542.
The libellant contends that, as neither she nor the libellee intended to continue to reside in this Commonwealth until two years after the decree nisi, the marriage did not come within the provisions of this statute. There was testimony to- support this contention, but there also was evidence tending in a different direction. The parties were residents of Springfield, in this Commonwealth, at the date of the marriage. They were both employed in that city in positions that were satisfactory to them and in which they intended to continue, as they in fact did. The libellant was
The libellant relies upon Atwood v. Atwood, 297 Mass. 229. That case is plainly distinguishable because there it was specifically found that the wife was acting in good faith and that her husband at the time of the marriage was not “residing and intending to continue to reside” in this Commonwealth.
Decree affirmed.