255 Mass. 19 | Mass. | 1926
This is a petition for separate support in which the petitioner alleges that her husband was ugly and disagreeable; that he left her in November, 1924, without just cause and has made no contributions to her support since that date. The trial judge found that the petitioner was living apart from her husband for justifiable cause and made an order for her support. The evidence is not reported.
The judge found that the parties had been married about thirty years, and trouble between them came to a head in the summer and fall of 1924; that the petitioner withdrew from cohabitation with her husband, locked herself in a separate room, withdrew from the savings bank a deposit of over $500 (started in 1908 in the husband’s name with the right in the wife to draw it), and deposited the same in a new account in her own name; that he objected to their married children and to his wife’s son by a former marriage living with them; that he went away and through his attorney notified his wife that he had a room in Charlestown and
Ordinarily the decision of the trial court based upon evidence not reported is conclusive, but in this case the decision is specifically based on the facts found, and the question is presented whether those facts justify the wife in living apart from her husband.
Misconduct, not amounting to such cruel and abusive treatment as under G. L. c. 208, § 1, is required to entitle a wife to a divorce, might justify her in living apart from him and enable her to maintain a petition for separate maintenance under G. L. c. 209, § 32. Turner v. Turner, 234 Mass. 37. Lyster v. Lyster, 111 Mass. 327.
The controlling principle in cases of this kind is stated in Goldberg v. Goldberg, 237 Mass. 279, 280, in the following language: “A wife is not justified in living apart from her husband and claiming separate support from him when the husband is without blame and the separation is not the result of ill treatment, misconduct, or failure of marital duty on his part. There is nothing to indicate that by returning to his home she would be subjected to cruel treatment or
In the case at bar no marital wrong was committed and no áct done which caused or was intended to cause the wife injury, or reasonable fear of danger to her physical health or safety. The facts found do not justify the conclusion that the wife was living apart from her husband for justifiable cause. It follows that the decree must be reversed and a decree entered dismissing the petition.
Ordered accordingly.