Farrell v. Farrell

• Decision Date: 06 January 1928
• Citation: 262 Mass. 209
• Parties: G. VIVIAN FARRELL v. JOSEPH W. FARRELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 209

G. VIVIAN FARRELL v. JOSEPH W. FARRELL.

Supreme Judicial Court of Massachusetts, Middlesex.

January 6, 1928

November 14, 1927.

Present: RUGG, C.

J., BRALEY, CROSBY CARROLL, & SANDERSON, JJ.

Marriage and Divorce, Separate maintenance. Husband and Wife.

Where, at the hearing of a petition under G.L.c. 209, Section 32, by a wife for separate maintenance, there is evidence warranting findings of antenuptial deceit on the part of the wife and after marriage several instances of more or less severe bodily violence, "continual nagging," profanity and opprobrious epithets on her part toward the husband, by reason of which he left her, and that the husband had never abused nor neglected her but had treated her with courtesy and had bought for her such clothes and other things as he could afford, further findings that the husband was justified in not continuing to live with the wife and that she was not living apart from him for justifiable cause were warranted and a dismissal of the petition was without error.

PETITION, filed in the Probate Court for the county of Middlesex on January 6 1927, under G.L.c. 209, Section 32, for separate maintenance.

In the Probate Court, the petition was heard by Harris, J., a stenographer having been appointed under G.L.c. 215, Section 18, to take the evidence. The evidence so taken was not made a part of the printed record before this court.

The judge ordered the petition dismissed. The petitioner appealed. The judge then reported his findings of fact. Material portions of his report are stated in the opinion.

D.L. Smith, for the petitioner. No argument nor brief for the respondent.

RUGG, C.J. This is a petition by a wife against her husband brought under G.L.c 209, Section 32. This section enumerates three classes of cases in which the court may make an order concerning the support of a wife. It may be done if "a husband fails without just cause, to provide suitable support for his wife, or deserts her, or if the wife, for justifiable cause, is actually living apart from her husband." Respecting this statutory provision it was said in Bucknam v. Bucknam, 176 Mass. 229 , "There would be no reason for the first class of cases if the power of the court to make an order was intended to be limited to cases in which the husband and wife are living apart from each other." In Goldberg v. Goldberg, 237 Mass. 279 , 280, the meaning of this section was...