315 Mass. 12 | Mass. | 1943
This is a petition for separate support in which the petitioner alleged that the respondent had failed without just cause to provide suitable support for her and had deserted her, and that she was “living apart from her . . . husband for justifiable cause,” and set forth among other specifications that “the respondent has been guilty of cruel and abusive treatment toward” her. The petition was filed on October 21, 1942, and the case was referred to a master. The master found that the parties were married in-Worcester on January 22, 1907, and had lived continuously in that city since that date. On the day when the first hearing was held before the master, the parties were living in the same house, together with a daughter Donna. The master also found that the respondent, “by his conduct and accur sations, by the use of vile and intemperate language and the laying of hands upon his wife and his daughter in the wife’s presence, was guilty of cruel and abusive treatment toward the petitioner,” that she is fearful of her husband and for the past two years has slept in her room under lock and key; and further reported that, if it was “within . . . [his] province to make any recommendation as to a reasonable amount for
On April 23,1943, the master filed his report on the second petition, in which he adopted the findings made by him in his first report and made '' them part of this report. ’ ’ He further found that the respondent left the home which he had occupied with his family on January 4, 1943; that this was the date of the first - hearing before him (the master) on the original reference; that since that date the parties had been living apart; and that the petitioner was living apart from the respondent for justifiable cause. It does not appear that any objections were filed to the master’s report.
On May 20,1943, the judge allowed the motion of the petitioner that the master’s report be confirmed except as to his recommendation "for $10 a week to . . . [the] petitioner.” On the same day the judge entered a final decree in which he
The respondent’s contentions are that the petitioner is not entitled to a decree of separate support on any ground other than failure to support, an alleged ground waived by the petitioner at the hearing before the master, unless she was actually living apart from the respondent when the proceeding was commenced; that the “supplementary” petition constituted nothing more than an amendment of the original petition; and that “since it failed to assert that the parties were living apart on October 21, 1942, the date when the original petition was filed,” it added nothing to her case. The respondent further contends, in the alternative, that if the “supplementary” petition be regarded as a new petition, he was entitled to try out all the issues anew, and that “the consideration of evidence or findings in the earlier case was improper.”
It is unnecessary to decide whether, as matter of law, a wife can maintain a petition such as the present one except for the cause of failure to provide suitable support (a cause waived by the petitioner in the present case) while living in the same dwelling as her husband, since we are of opinion that the so called supplementary petition, while so denominated, is in essence a new petition, alleging that the respondent had left the abode in which he had last lived with the petitioner, where she remains, and incorporating in its allegations by reference those contained in the first petition, and that it is not in the nature of an amendment to the original petition which would not suffice td create a cause of action if none existed when the original petition was brought. See Childs v. Childs, 293 Mass. 67, 72. Com
We proceed to the consideration of the respondent’s alternative contention, that in the disposition of the second petition the judge was not authorized to consider the evidence which was the basis of the findings of the master in his report upon the first petition, which findings he incorporated in his report upon the new petition. We are of opinion that this contention cannot be sustained. We have already recited the terms of the order of the judge in referring the new petition to the master. No appeal was taken by the respondent from that order. In the absence of such an appeal it cannot be said that the' findings of the master in his report on the first petition, incorporated by reference in his report upon the new-petition, were not properly considered by the judge. The case of Olsen v. Olsen, 294 Mass. 507, 509-510, relied upon by the respondent, is not in point. There is no question of res judicata in the present case as there was in the Olsen case.
•The final decree entered in the court below is to be modified by striking from the last paragraph thereof the words “and said minor child,” and as so modified is affirmed.
Ordered accordingly.