293 Mass. 332 | Mass. | 1936
It is alleged in this petition for separate support that the respondent failed without just cause to furnish suitable support for the petitioner, that he has deserted her, and that she is living apart from him for justifiable cause, with specifications that he has been guilty of cruel and abusive treatment toward her. The evidence is reported in full. A decree was entered to the effect (1) that the petitioner was actually living apart from her husband; (2) that the other allegations of the petition were not sustained; (3) that the custody of a minor child of the petitioner and the respondent be awarded to her; and (4) that the respondent pay the petitioner stated sums for
After the hearings were closed the petitioner filed a motion supported by affidavit to introduce additional evidence. The denial of this motion in the circumstances disclosed rested in the discretion of the trial judge and was not erroneous in law. Troeder v. Hyams, 153 Mass. 536, 541. Wells v. Wells, 209 Mass. 282, 291. Walsh v. Cornwell, 272 Mass. 555, 561.
The practice in probate appeals conforms to that in equity so far as practicable and applicable. Churchill v. Churchill, 239 Mass. 443, 445. The appeal, therefore, brings before this court questions of fact as well as of law. Although this court examines the evidence and decides the case upon its own judgment, a decision of the trial judge based upon ' oral testimony will not be reversed unless plainly wrong. The record has been carefully examined. The questions determined were purely matters of fact depending upon the credibility of witnesses and the weighing of evidence. The findings were not plainly wrong. Lindsey v. Bird, 193 Mass. 200, 201. Rodrigues v. Rodrigues, 286 Mass. 77, 80. No ruling of law appears to have been made. It cannot be said that the trial judge misinterpreted Murray v. Murray, 255 Mass. 19. Cases of this kind depend largely upon their special circumstances and are
Decree affirmed.