287 Mass. 28 | Mass. | 1934
This libel comes before us on appeal by the libellee from a decree granting the divorce and giving the care and custody of the minor child of the parties to the libellee. There is a report of material facts found by the probate judge. G. L. (Ter. Ed.) c. 215, §§9,11,12. Drew v. Drew, 250 Mass. 41. The evidence is not reported. This libel was brought on November 9, 1933, by the husband against his wife on the ground that she deserted him on or about October 31, 1930. Prior to the filing of the libel, the wife brought separate support proceedings against the husband. The allegations of that petition were that the husband failed without just cause to support her, and had deserted her, and that she was living apart from him for justifiable cause, with the following specifications: “Cruel and abusive treatment. Neglect to furnish a home for your petitioner and minor child.” On October 9, 1930, decree was entered adjudging that she was actually living apart from him for justifiable cause. The grounds for that decree were not set out in further detail in the record in that case. Certain payments for her support were ordered to be made-by him, Those payments have been made,
The decree of the Probate Court in the petition for separate support by the wife, declaring that she ‘was living apart from him for justifiable cause, cannot be attacked collaterally and is binding and conclusive upon the parties to this proceeding as to all matters which were put in issue or necessarily involved in that proceeding. G. L. (Ter. Ed.) c. 209, § 32. Miller v. Miller, 150 Mass. 111. Watts v. Watts, 160 Mass. 464. Austin v. Austin, 233 Mass. 528. Williamson v. Williamson, 246 Mass. 270, 274. That principle is not precisely applicable to the case at bar because the cause for divorce alleged in the present libel occurred twenty-two days later than the decree in the separate sup
Jurisdiction over both divorce and separate maintenance is now vested in probate courts. G. L. (Ter. Ed.) c. 208, § 6; c. 209, § 32. While there is an apparent inconsistency between the two decrees of that court respecting these
A libel for divorce is a proceeding different in nature from a petition for separate maintenance. Since a decree on a petition for separate support does not create a status but adjudicates concerning that which may be a temporary situation; a court of competent jurisdiction has power to determine upon issues properly raised whether that situation in fact exists at a later date. That issue was raised on the present libel. Harrington v. Harrington, 189 Mass. 281, 283. However strange it may be, it is not legally impossible that the facts which formed the basis of the decree of October 9,1930, for separate support in favor of the wife, may have changed so as to be no longer applicable to the relations of the parties on the thirty-first of that same month. Whether there had been such sudden alteration in the matrimonial conditions was necessarily involved in the consideration of the issues here raised. The findings of fact do not touch this essential issue.
The findings of fact made by the trial judge are not sufficient to support the decree nisi. While there is some recital
It follows that the material facts found and reported are insufficient to establish desertion in the circumstances here disclosed.
Decree nisi reversed.