Cushman v. Cushman

• Decision Date: 04 January 1907
• Citation: 194 Mass. 38,79 N.E. 809
• Parties: CUSHMAN v. CUSHMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 38

79 N.E. 809

CUSHMAN v. CUSHMAN.

Supreme Judicial Court of Massachusetts, Middlesex.

January 4, 1907

COUNSEL

Elder & Whitman and Frank E. Bradbury, for libelant.

OPINION

HAMMOND, J.

To a libel of the wife for divorce on the ground of adultery the husband filed an answer denying the adultery and setting up by way of recrimination prior desertion on the part of the wife. At the trial the judge found that the husband was guilty of the adultery, but as to the charge of desertion he did not find that the wife's conduct amounted to desertion, although he did find 'that there was on her part such unmindfulness of marital obligations as to preclude the granting of her libel,' and ordered it to be dismissed. In other words, the wife's charge of adultery was sustained but the husband's charge of desertion was not.

However it may be elsewhere, the rule in this commonwealth is that while the offense set up in recrimination need not be of the same nature as the one relied upon in the libel, yet it must be such as in law would be of itself sufficient ground for divorce. Hall v. Hall, 4 Allen, 39; Clapp v. Clapp, 97 Mass. 531; Watts v. Watts, 160 Mass. 464, 36 N.E. 479, 23 L. R. A. 187, 39 Am. St. Rep. 509; Walker v. Walker, 172 Mass. 82, 51 N.E. 455, and cases there cited. If upon the evidence the judge had found desertion then, the dismissal of the libel would have been correct; but he did not find it, and there is nothing in the facts found by him as to the conduct of the wife which estopped her from a divorce on the ground of the husband's adultery. This case does not belong to the class of which Lyster v. Lyster, 111 Mass. 327, is a type, where the libelee attempts to justify the charge alleged in the libel (in that case it was desertion) by showing misconduct on the part of the libelant which, though not sufficient in law to constitute a ground of divorce may yet be sufficient in law to justify the act relied upon in the libel. Watts v. Watts, ubi supra. In the case before us a separate and distinct offense on the part of the libelee, having no relation to the offense charged, is set up as a bar to the libel. In such a case, as has been before stated, the offense set up must be sufficient of itself to constitute a ground of divorce.

Exceptions sustained.