Drew v. Drew
| Decision Date | 23 September 1924 |
| Citation | 250 Mass. 41,144 N.E. 763 |
| Parties | DREW v. DREW. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Suffolk County; Arthur W. Dolan, Judge.
Libel for divorce by Mary A. Drew against Edward M. Drew. From a decree dismissing the libel, libelant appeals. Affirmed.
John F. Hurley, of Boston, for appellant.
Clarence E. Tupper, of Worcester, for appellee.
[1] This is a libel for divorce brought in the probate court. St. 1922, c. 532, § 7. Report was made by the judge under the procedure outlined in G. L. c. 215, §§ 9, 11, 12. In general that accords with equity practice. G. L. c. 214, §§ 19, 23; Churchill v. Churchill, 239 Mass. 443, 445, 132 N. E. 185. By G. L. c. 208, § 33, the course of proceedings in divorce, unless otherwise specially prescribed, conforms ‘to the course of proceedings in ecclesiastical courts or in courts of equity.’ Friedrich v. Friedrich, 230 Mass. 59, 61, 119 N. E. 449; Ames v. Holt, 214 Mass. 77, 100 N. E. 1088, Ann. Cas. 1914B, 850;Greenia v. Greenia, 206 Mass. 449, 92 N. E. 725;Patterson v. Patterson, 197 Mass. 112, 118, 83 N. E. 364. The case as matter of practice is before us property
The causes of divorce alleged in the libel are (1) that the libelee has been guilty of cruel and abusive treatment of the libelant; (2) that the libelee has contracted gross and confirmed habits of intoxication; and (3) that the libelee, being of sufficient ability, has grossly or wantonly and cruelly refused or neglected to provide suitable maintenance for the libelant.
The report of the judge narrates briefly salient facts of the married life of the parties and concludes with a finding that the charges of the libel are not sustained by the evidence and that, after the filing of the libel, the libelant had condoned the alleged marital wrongs. A decree was entered dismissing the libel. The appeal of the libelant brings the case here.
[2] The general finding against the libelant, having been founded on oral testimony presented by witnesses in person, will not be reversed. It cannot be pronounced plainly wrong. The evidence was conflicting respecting the several causes alleged in the libel. It was for the trial judge to determine where the truth lay, having in mind the burden of proof resting upon the libelant. His determination must be accepted in these circumstances as final. Freeman v. Freeman, 238 Mass. 150, 161, 130 N. E. 220.
No question is open concerning the sufficiency or nature of the answer. Arguments upon that point need not be considered. There is nothing to indicate any erroneous ruling of law in this connection by the trial judge. French v. French, 14 Gray, 186:Newman v. Newman, 211 Mass. 508, 511, 98 N. E. 507, Ann. Cas. 1913B, 672.
[3][4] There was evidence tending to show that the libelant had freely and voluntarily written and signed a letter addressed to one who was then her attorney, directing him to cause to be dismissed an earlier libel brought by her, in which were statements tending to contradict her testimony given at the trial; that she showed this letter to her husband; that she and her husband went with this letter to the office of his attorney, where she handed it to his attorney, by whose typist it was copied; and that the original thereafter was returned to the libelant. The attorney to whom it was addressed testified that he was unable to find the original letter and the libelant denied that she wrote such a letter. The copy was rightly admitted in evidence. It was not a privileged communication with either her attorney or her hdsband, because, if the testimony was believed, the original and the copy were shown by her to third persons. This destroyed her privilege concerning it. Temple v. Phelps, 193 Mass. 297, 304, 79 N. E. 482;Sampson v. Sampson, 223 Mass. 451, 458, 112 N. E. 84;Lyon v. Prouty, 154 Mass. 488, 28 N. E. 908.
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