Fleming v. Fleming

• Decision Date: 07 January 1936
• Citation: 199 N.E. 319,293 Mass. 147
• Parties: FLEMING v. FLEMING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 147

199 N.E. 319

FLEMING

v.FLEMING.

Supreme Judicial Court of Massachusetts, Norfolk.

Jan. 7, 1936.

Petition for separate maintenance by Mary J. Fleming against John H. Fleming. Decree for complainant, and respondent appeals.

Affirmed.

Appeal from Probate Court, Norfolk County; McCoole, Judge.

J. E. Levine, of Boston, for appellant.

T. L. Gannon and H. L. Rogers, both of Boston, for appellee.

CROSBY, Justice.

This is a petition for separate support brought by the wife of the respondent. It was filed in the Probate Court on May 20, 1935. Counsel for the respondent entered an appearance. A hearing was held on July 2, 1935, due notice thereof having been given to the respondent. On the same date the following decree was entered: ‘It appearing to the Court that said petitioner for justifiable cause is actually living apart from her said husband: It is ordered that said John H. Fleming be and he hereby is prohibited from imposing any restraint on the personal liberty of said petitioner, and that he pay to said petitioner for the support of herself the sum of fifteen dollars on Saturday, July 6, 1935, and the further sum of fifteen dollars on each and every Saturday thereafter until the further order of said Court and it is further decreed that the said respondent pay the sum of fifty dollars counsel fees; said sum to be paid on or before August 2, 1935.’ From this decree the respondent claimed an appeal to this court.

At the request of the respondent the trial judge made a report of the material facts found by him. He found that both parties were represented by counsel and a full and complete hearing was had on the petition; that the respondent is a member of the bar; that accompanied by his wife he went to San Francisco and remained there two years, and then returned to this Commonwealth; that there was no trouble between the parties up to this time; that when they returned from California the respondent's conduct toward his wife changed, he became insolent and indifferent, and at times was under the influence of liquor; that on April 29, 1935, he left his wife, and on leaving demanded his papers and bankbooks; and that there were two bank accounts, one of $775 and one of $554, each standing in the name of both parties. The judge further found that on the day the respondent left he drew $500 from one of the banks, and attempted to draw from the other bank account but was refused by the bank officers; that he notified one of the banks that no one be allowed to draw on the account; that when he left home he told his wife there would be no forwarding address; that he...