Giles v. Giles

• Decision Date: 27 June 1932
• Citation: 279 Mass. 469,181 N.E. 505
• Parties: GILES v. GILES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 469

181 N.E. 505

GILES

v.GILES.

Supreme Judicial Court of Massachusetts, Middlesex.

June 27, 1932.

Appeal and Report from Probate Court, Middlesex County; C. N. Harris, Judge.

Libel for divorce by Julia Giles against Charles E. Giles. Order dismissing the libel, and libellant appeals, and case reported.

Reversed and rendered.

J. M. Raymond, of Boston, for appellant.

C. S. Walkup, Jr., and J. B. Sly, both of Boston, for appellee.

CROSBY, J.

This is a libel for divorce by a wife against her husband on the ground of cruel and abusive treatment. The parties were married on September 27, 1927; they were each about sixty years of age, both had been previously married, and the libellant had a son by a former marriage, but the parties had no children by this marriage. They lived together in Cambridge and Medford in this Commonwealth, and while so living in Medford they occupied a house owned by them jointly as tenants by the entirety.

The charges of cruel and abusive treatment were sufficient to authorize a decree in favor of the libellant and the trial judge so states in his report. The libellant testified that from Nobember 26, 1930, which was the last time the libellee attempted to strike her, until December 8, 1930, she continued to live in her house and occupied the same room with her husband but in a separte bed; that after the last time he tried to strike her she took steps to find a place to go and moved out on December 8, taking with her the furniture and furnishings which had belonged to her before she married the libellee, and she arranged to place them in storage.

The judge found that ‘certain charges of cruelty were sustained which would have warranted a decree of divorce,’ but he also found that she had condoned the acts of cruelty for the sole reason that she ‘continued to live in the same house with the libellee and occupy the same bed chamber, although not the same bed, for a period of ten days after the last act of cruelty charged and proved, and that no sufficient reason appeared in evidence why she could not have abandoned the libellee's dwelling at an earlier day had she seen fit so to do.’

As a tenant by the entirety with her husband her right to occupy the house was equal with that of her husband. A large part of the furniture was her sole property. She did not leave ‘the libellee's dwelling,’ as found by the judge, but left the house in which she had the same title and right of occupancy that her husband had. There is no evidence or contention that there was any resumption of marital relations between the parties after November 26, 1930, the last time that he attempted to strike her.

This court has said that, ‘Condonation is a state of mind to be determined upon all the evidence, including rational inferences.’ Drew v. Drew, 250 Mass. 41, 45, 144 N. E. 763, 764. It commonly is a question of fact. A finding of the trial judge, hearing oral testimony, will not be disturbed unless plainly wrong. Ripley v. Ripley, 259 Mass. 26, 27, 155 N. E. 658. Upon the question of condonation it is not disputed that the libellant continued for about ten or twelve days to live in the house, and at night during that time she occupied a separate bed in the same room with the libellee. It was said by Dewey, J., in Gardner v. Gardner, 2 Gray, 434, at pages 441, 442: ‘Condonation is not so easily to be inferred against the wife, from her cohabitation, as it might be against the husband. * * * The state of the respective parties differes materially in their opportunities of at once...