Vinton v. Vinton

264 Mass. 71 | Mass. | 1928

Wait, J.

The decree from which the libellant appeals is based upon a finding that he connived at an act of adultery on the part of the libellee, and dismisses the libel which set up the adultery as ground for divorce. The libellant does not deny that the decree is proper if the finding is correct, but contends that neither the evidence nor the law sustains the finding.

This court will not overturn the findings of fact made by the Probate Court in a proceeding for divorce unless they are plainly wrong. Drew v. Drew, 250 Mass. 41, 44. There is no dispute that the libellant, desiring a divorce, hoping to take his wife in an act of adultery and, intending to do nothing to prevent it, lay hidden while the co-respondent, whose business it was to deliver ice at dwellings, visited, ate, conversed and danced with her in her home, and that he appeared before the guilty couple only when he believed them to be in actual intercourse. These facts alone with the inferences to be drawn from them are not sufficient to justify a finding of connivance. Wilson v. Wilson, 154 Mass. 194. Robbins v. Robbins, 140 Mass. 528. We do not agree with the statement of Sir C. Cresswell in Boulting v. Boulting, 3 Sw. & Tr. 329, 335, “a willing mind, this is all that is necessary.” The rule established by our decisions is that connivance, to constitute a defence in divorce, involves action which facilitates the commission of the act of adultery, something which smooths “the path to the adulterous bed.” Wilson v. Wilson, supra. Robbins v. Robbins, supra. Noyes v. Noyes, 194 Mass. 20. Leavitt v. Leavitt, 229 Mass. 196. Morrison v. Morrison, 136 Mass. 310. In the three cases last cited, there was evidence of conduct which assisted and carried forward the plans of the adulterers to a successful conclusion by something other than mere failure to oppose and thwart them. In them, it was held that connivance had been shown which precluded divorce.

We need not recite at length the evidence here presented. What took place immediately upon the discovery of the wife’s transgression, considered in the light of the admitted desires of the libellant, will support the inference which the judge made, that his contribution to the event went beyond the part of spectator to that of manager. The case stands upon the border line of connivance; but we think it is governed by Morrison v. Morrison, Noyes v. Noyes, and Leavitt v. Leavitt, rather than by Robbins v. Robbins and Wilson v. Wilson, supra.

Decree affirmed.