Cesarone v. Cesarone

• Decision Date: 07 July 1952
• Citation: 107 N.E.2d 312,329 Mass. 217
• Parties: CESARONE v. CESARONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 312

107 N.E.2d 312

329 Mass. 217

CESARONE v. CESARONE.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 10, 1952.

Decided July 7, 1952.

E. H. J. Wilson, Salem, for libellant.

J. W. Jennings, Lynn, for libellee.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

WILLIAMS, Justice.

A decree of divorce nisi for cruel and abusive treatment was entered for the libellant in the Probate Court for Essex County on October 9, 1951. Thereafter, on request by the libellee, the judge filed the following report of material facts. 'The libellant and the libellee were married in Salem, April 25, 1943, and lived thereafter in said Salem until the final separation in March, 1951. On a day in November, 1945, the libellant and the libellee quarreled and the libellee struck the libellant a number of times about the shoulders. On an occasion during the summer of 1946, the libellant threw a chair at the libellee. July 31, 1949, the libellee struck the libellant with his fists on her chest causing a swelling to appear. A short while thereafter the libellant brought a libel against the libellee, but on the libellee's promise that he would treat the libellant with consideration, a reconciliation was had in October, 1949 and the couple lived together until March 24, 1951. For some time prior to the separation the libellee had been conducting a cafeteria at Beverly and on March 24, 1951, the libellant visited the establishment and observed one of the customers kissing the libellee. An argument ensued as a result of this incident and there was considerable pushing on the part of each, the libellant, however, being the aggressor throughout this incident. Both parties left the cafeteria together with a neighbor and returned to the libellant's home, where an argument ensued because the libellant refused to turn over to the libellee the keys to his automobile. The libellee thereupon punched the libellant on the chest a number of times. The libellant thereafter left the house and went to the home of her sister, where she has since resided.'

On November 8 the libellee requested a further report of material facts, and on November 23 the judge filed such report entitling it 'substitute Findings of Material Facts.' The facts reported were the same as in the original report except that in the finding relating to the throwing of the chair 'libellee' was substituted for 'libellant.' On December 5, 1951, the libellee filed a motion for 'additional report of material facts,' which motion was denied. On October 26 the libellee filed a claim of appeal from the decree of divorce. On December 5 he filed a claim of appeal from the decree, from the findings of material facts, and from the substituted findings of material facts. On December 24 he filed a claim of appeal from the decree, from the original and substituted findings of material facts, and from the denial of his motion for additional findings.

There was no error in the decree. The facts reported by the judge were sufficient to support his conclusion that the libellee had been guilty of cruel and abusive treatment of his wife. See Freeman v. Freeman, 238 Mass. 150, 130 N.E. 220; Curtiss v. Curtiss, 243 Mass. 51, 136 N.E. 829; Steere v. Steere, 265 Mass. 317, 163 N.E. 852; Rudnick v. Rudnick, 288 Mass. 256, 192 N.E. 501; Mooney v. Mooney, 317 Mass. 433, 58 N.E.2d 748; Reddington v. Reddington, 317 Mass. 760, 59 N.E.2d 775, 159 A.L.R. 1448. Compare Vergnani v. Vergnani, 321 Mass. 703, 75 N.E.2d 499; Hamilton v. Hamilton, 325 Mass. 278, 90 N.E.2d 322.

Condonation by her of prior ill treatment could have been found to have been conditioned on better treatment in the future and his conduct on March 24, 1951, after the reconciliation to have been a breach of the condition which vitiated the condonation. Steere v. Steere, 265 Mass. 317, 163 N.E. 852; Callan v. Callan, 280 Mass. 37, 43, 181 N.E. 736, and cases cited. If there was a material variance between the specifications...