| Mass. | Oct 8, 1928
This is a libel for divorce by the wife against the husband. The causes set forth in the libel as amended are (1) cruel and abusive treatment and (2) gross or wanton and cruel refusal or neglect to provide suitable maintenance for the libellant by the libellee, he being of sufficient ability. A decree was entered dismissing the libel without prejudice. There is no report of the evidence, but the judge made a finding of material facts. The appeal of the libellant brings the case here.
Counsel for the libellee appeared on July 18, 1927. After specifications had been ordered and answered and interrogatories filed and answered, the libellee filed an answer on November 10. The case came on to be heard on November 23,1927. The libellant then filed a motion that no evidence be received under the answer because the libellee had failed to comply with Divorce Rule 8 of the Probate Courts to the
It is not necessary to narrate in detail the report of the judge. He saw the libellant and libellee and heard the oral testimony of them and their witnesses. His findings must be accepted as true in the absence of a full report of the evidence. Drew v. Drew, 250 Mass. 41" court="Mass." date_filed="1924-09-19" href="https://app.midpage.ai/document/drew-v-drew-6436755?utm_source=webapp" opinion_id="6436755">250 Mass. 41, 44.
The finding of the judge is express to the effect that he was not satisfied that there was any cruel or abusive treatment or injury to the libellant as claimed. This was a pure question of fact. On it the decision of the judge is decisive. No evidence is recited and no facts are found shaking his conclusion. On this point the case is well within the authority of numerous decided cases. Bonney v. Bonney, 175 Mass. 7" court="Mass." date_filed="1899-11-29" href="https://app.midpage.ai/document/bonney-v-bonney-6426912?utm_source=webapp" opinion_id="6426912">175 Mass. 7. Curtiss v. Curtiss, 243 Mass. 51" court="Mass." date_filed="1922-10-31" href="https://app.midpage.ai/document/curtiss-v-curtiss-6435960?utm_source=webapp" opinion_id="6435960">243 Mass. 51, and cases collected at page 53. Murray v. Murray, 255 Mass. 19" court="Mass." date_filed="1926-02-25" href="https://app.midpage.ai/document/murray-v-murray-6437408?utm_source=webapp" opinion_id="6437408">255 Mass. 19, 22.
The facts found wdth respect to the ground of gross or wanton and cruel refusal and neglect to provide suitable maintenance show no error on the part of the court in refusing to grant the divorce on this ground. A general discussion of the governing principles of law on this subject may be found in Bailey v. Bailey, 97 Mass. 373" court="Mass." date_filed="1867-10-15" href="https://app.midpage.ai/document/bailey-v-bailey-6415071?utm_source=webapp" opinion_id="6415071">97 Mass. 373, Peabody v. Pea
There is no finding to the effect that the libellee is not the father of the child. See Taylor v. Whittier, 240 Mass. 514" court="Mass." date_filed="1922-03-02" href="https://app.midpage.ai/document/taylor-v-whittier-6435693?utm_source=webapp" opinion_id="6435693">240 Mass. 514.
No question has been argued as to the form of the decree. Therefore that need not be considered. See Keenan v. Keenan, 219 Mass. 107" court="Mass." date_filed="1914-10-24" href="https://app.midpage.ai/document/keenan-v-keenan-6432871?utm_source=webapp" opinion_id="6432871">219 Mass. 107.
The libellee has stated in his brief that he does not waive any points not argued. Such an assertion imposes no duty upon the court as to such points. Commonwealth v. Dyer, 243 Mass. 472" court="Mass." date_filed="1922-12-30" href="https://app.midpage.ai/document/commonwealth-v-dyer-6436054?utm_source=webapp" opinion_id="6436054">243 Mass. 472, 508.
Decree affirmed.