Coan v. Coan

• Decision Date: 30 June 1928
• Parties: COAN v. COAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 291

162 N.E. 663

COAN

v.COAN.

Supreme Judicial Court of Massachusetts, Essex.

June 30, 1928.

Appeal from Probate Court, Essex County; White, Judge.

Libel for divorce by Maribell E. Coan against George H. Coan. From a decree dismissing the libel, libelant appeals. Affirmed.

John J. Foley and J. H. Sisk, Jr., both of Lynn, for appellant.

J. W. Sullivan and J. F. Doyle, both of Lynn, for appellee.

PIERCE, J.

This was a libel for divorce, which alleged that the libelee utterly deserted the libelant on or about April 9, 1924, and continued his desertion for more than three consecutive years next prior to the filing of the libel. The libelee filed an answer denying ‘that the libelant has been always faithful to her marriage vows,’ and alleging that the libelant deserted him on or about the 22d day of March, 1924, without cause or excuse; that on or about the 9th day of April, 1924, there was a separation between the parties under such circumstances as in law was no desertion on the part of the libelee. A stenographer was appointed to take the evidence. The case was tried on October 19, 1927. At the conclusion of testimony counsel for the libelant presented the following requests for rulings:

(1) ‘That upon the evidence and upon the weight of the evidence the libelant is entitled to a decree’; (2) ‘that upon all the evidence, if any marital offense or offenses were committed by the libelant, it was condoned by the libelee before the filing of this libel;’ and (3) ‘that, if the libelee condoned the marital offense or offenses, if any, of the libelant and continued to live with her after such condonation, his desertion was unjustified.’

The first and second requests were denied. No ruling was made on the third request. A decree was entered dismissing the libel on November 1, 1927. The libelant appealed therefrom, and moved ‘that a report of the material facts found shall be made.’

The report discloses the following undisputed facts: On Saturday, March 22, 1924, George H. Coan and Maribell Coan had been married about eight years. They had five children, the youngest being eight months old. Since early in 1923 they had lived in the house of the mother and grandmother of Mrs. Coan. This house was the locus of the case. After supper on Saturday, March 22, 1924, the wife left the house as if on some errand and did not return. It appeared that she went away with a married man, one Oliphant, lived and cohabited with him for the first three days and nights in Boston, and that thereafter they lived and cohabited as man and wife for about two weeks in Quincy. On April 5, an inspector of the police department of Lynn arrested Oliphant and Mrs. Coan and took them to the office of the chief of police of Quincy. Because of the statement of the inspector to the chief of police that ‘this woman was the mother of five children at home,’ the chief of police told her, if she would return to her children, he would leave the case in the inspector's hands ‘as to what he would do later on.’ Thereupon the inspector took her to Lynn. On arriving home she let herself in and was followed by the inspector. She saw her husband in the hallway; he looked at her and did not say anything. She kissed him. He said: ‘How could you do it, Kid.’ She did not say anything and started to cry. The husband testified: ‘She tried to put her arms around my neck, and I kind of pushed her away. I don't think anybody could notice it.’ The inspector took Coan to another room and told him, in substance, that his wife agreed with the chief of police in Quincy to return and take care of the children. Coan made no reply to this statement. That afternoon, after the departure of the inspector, Coan and his wife went out together ‘shopping.’ On their return the family were at supper, and Coan and his wife joined them. While they were out and after their return there was no open quarrel between them, but ‘things were not pleasant’ in the mind of Coan. Coan and wife had but one sleeping room and one bed. They slept in this same bed that Saturday night and on the three following nights. The wife testified ‘that they cohabited, to the full significance of the word.’ Coan testified, ‘I slept in the bed with her; she slept under the sheet and I slept on top of it;’ and said, in answer to the question, ‘Have any relations at all with her? You know what I mean, instead of asking any more...