Cosgrove v. Cosgrove

• Decision Date: 07 June 1966
• Citation: 351 Mass. 64,217 N.E.2d 754
• Parties: James Francis COSGROVE v. Patricia Ann COSGROVE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 754

217 N.E.2d 754

351 Mass. 64

James Francis COSGROVE v. Patricia Ann COSGROVE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 3, 1966.

Decided June 7, 1966.

Allan Roy Kingston, Somerville, for libellee.

No argument or brief for libellant.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.

SPALDING, Justice.

On February 10, 1964, the husband filed a libel for divorce alleging cruel and abusive treatment. In her answer, the wife by way of recrimination alleged cruel and abusive treatment on the part of the husband. Subsequently the husband was permitted to amend his libel by alleging that the wife was incompetent by reason of mental illness and by asking that the court appoint for her a guardian ad litem during the pendency of the libel. Sec. G.L. c. 208, § 15. An attorney was appointed guardian ad litem for the wife and, after interviewing the parties and investigating the mental condition of the libellee, he made a report to the court pursuant to G.L. c. 208, § 16. See Hillson v. Hillson, 263 Mass. 143, 160 N.E. 448.

Prior to the hearing the court ordered the wife to be examined at the State Department of Mantal Health. Dr. Myer Asekoff, a psychiatrist, made an examination, the results of which were incorporated in a report and transmitted to the court.

The judge made a report of the material facts, the pertinent portions of which are as follows: The parties were married in 1951 and three children were born of this marriage. The incidents which the judge found constituted cruel and abusive treatment cover a period from early 1963 through February, 1964, and include the following. The wife once refused to leave the house of friends and had to be carried out; she threatened the husband once with a knife; on another occasion she slashed him with a razor; she struck him on several occasions; and on still another occasion she knocked down the Christmas tree and smashed it in front of their children. Some of these acts were brought on by the excessive use of liquor and drugs. The husband left his wife in February of 1964.

Regarding the wife's mental condition, the judge found that since 1956 she has had 'depressive episodes,' has often threatened suicide and has been under psychiatric treatment. In 1961 she tried to commit suicide by setting fire to herself. In 1962 she received shock treatments while under the care of a psychiatrist, but this 'failed to improve her suicidal tendencies.' In June, 1963, she was admitted to the Metropolitan State Hospital and given shock treatments. She was thereafter treated on an out-patient basis but did not improve 'except for periods when she did act normal.' The judge concluded, on the basis of Dr. Asekoff's report, that the wife 'was suffering from a long history of mental illness resulting in a schizophrenic reaction with suicidal tendencies.' He added that 'there were times when she acted as a normal person would.' A decree nisi was entered granting a divorce to the husband on the ground of the wife's cruel and abusive treatment. The husband was awarded custody of the three minor children, subject to the right of the wife to see them at reasonable times. The wife appealed. The evidence is not reported.

Where a case comes here solely on a report of material facts the question is whether the findings of the judge 'should in law require a decree different from that which was entered in the * * * (court below).' Brown v. Brown, 323 Mass. 332, 333, 81 N.E.2d 820. The wife argues that after finding that she had suffered from a long period of mental illness, the judge should have concluded that she was not responsible for the abusive acts by reason of insanity. 'By the consensus of American authority a divorce cannot be granted on the ground of cruel and abusive treatment because of acts done by an insane person.' Rice v. Rice, 332 Mass. 489, 491, 125 N.E.2d 787, 788, and cases there collected. And, as we said in that case, 'We think that the law of Massachusetts accords with that consensus of American authority.' P. 491, 125 N.E.2d p. 788. ¹ Thus, if the judge had found the wife to be insane at the time the alleged acts took place, he could not have granted the divorce. As it was, however, he concluded only that there had been a long period of mental illness and made no findings either to the effect that the wife was ever insane, or that she was ever in such condition that she could not appreciate the nature and consequences of her acts. See Broadstreet. v. Broadstreet, 7 Mass. 474; Hartwell v. Hartwell, 234 Mass. 250, 125 N.E. 208. It is recognized in many jurisdictions that not every type or degree of mental illness constitutes the kind of insanity which may be a defence to an action of this nature. See Dochelli v. Dochelli, 125 Conn. 468, 6 A.2d 324; Champagne v. Duplantis, 147 La. 110, 84 So. 513; Hadley v. Hadley, 144 Me. 127, 65 A.2d 8; Bryce v. Bryce, 229 Md. 16, 181 A.2d 455, 98 A.L.R.2d 917; Jaikins v. Jaikins, 370 Mich. 488, 492, 122 N.W.2d 673; Longbotham v. Longbotham, 119 Minn. 139, 137 N.W. 387; Silverness...