Grandell v. Short

• Decision Date: 05 February 1945
• Citation: Grandell v. Short, 317 Mass. 605, 59 N.E.2d 274 (Mass. 1945)
• Parties: GRANDELL v. SHORT.
• Court: Supreme Judicial Court of Massachusetts

317 Mass. 605

59 N.E.2d 274

GRANDELL

v.SHORT.

Supreme Judicial Court of Massachusetts, Norfolk.

Feb. 5, 1945.

Proceedings on petition of Barbara Wolfe (Short) Grandell against Philip Cutler Short for modification of a previous decree whereby custody of the minor children of the parties had been awarded to respondent. From a decree denying the petition, petitioner appeals.

Affirmed.Appeal from Probate Court, Norfolk County; J. F. Reynolds, Judge.

Before FIELD, C. J., and QUA, DOLAN, RONAN and WILKINS, JJ.

W. R. Bigelow, of Boston, for petitioner.

C. W. O'Brien, of Boston, for respondent.

WILKINS, Justice.

This is an appeal by the mother of Marcia Short and Deborah Short from a decree of the Probate Court, dated May 15, 1944, denying her petition for modification of a previous decree whereby their custody had been awarded to the respondent, who is their father.

The evidence is reported, but there is no report of material facts. The judge's decision imports a finding of every fact supported by evidence and essential to his conclusion, and such findings, where based on oral testimony, are not to be set aside unless plainly wrong. Berry v. Kyes, 304 Mass. 56, 57, 58, 22 N.E.2d 622;Buckingham v. Alden, 315 Mass. 383, 385, 53 N.E.2d 101.

The petitioner obtained a divorce from the respondent by a decree of the Probate Court, dated December 9, 1938, whereby custody of the children was awarded to the petitioner. By decree of November 20, 1939, the earlier decree was modified by awarding custody to the respondent. The latter proceeding was apparently uncontested. At the time of the hearing in the present case Marcia and Deborah were respectively eight and seven years of age, and since October, 1943, had resided in Springfield with the respondent and his wife, Marion Smith Short, whom he married September 18, 1943. The children had resided in Springfield since June, 1938, for the first year and a half with the respondent's parents, and thereafter until October, 1943, with the respondent and his parents. The petitioner and the respondent, when husband and wife, resided principally in Weymouth and Quincy. They ceased living under the same roof in June, 1938, when the petitioner wrote the respondent's mother in Springfield, ‘Philip and I have decided, after a month's trial, that it is impossible for us to make a go of our marriage so we have agreed to separate. We both understand that you will be more than willing to take Marcia and Deborah. If you will let me know when you can come for them I will have them ready for you.’ Since that time the petitioner has continued to reside in Weymouth, and has seen the children not more than twice a year and always at Springfield, to which it was for several years a financial burden for her to go. The children did not discover that she was their mother until April, 1943. In September, 1939, she married her present husband and has the custody of a daughter, eleven years of age at the time of the hearing, by a marriage previous to that with the respondent. The petitioner and her husband are financially able to support the children, and there is nothing to indicate that the home would be other than it should be. On the other hand, the judge could find that the children had a good home with the respondent and his wife, and that they were well taken care of. The judge could also find from the testimony, including that of the children, that they preferred to continue to live with the respondent and with his wife, whom they often referred to as ‘Mother.’ See Dumain v. Gwynne, 10 Allen 270, 275.

The petitioner relies in some measure on the conduct of the respondent's mother, who was described in the petitioner's testimony as ‘very domineering.’ The petitioner charges her with dictating the conditions under which the petitioner might see the children, with preventing the petitioner from seeing them alone, and with telling them that their mother was dead. The petitioner testified that the respondent apparently ‘condoned’ his mother's conduct. It is argued that the respondent left the children to the care of his mother, and thus subjected the children to ‘influence hostile to their mother by a person of very violent prejudices.’ The respondent's mother at the time of the hearing was not in favor with the respondent's wife, and apparently no longer visited at her house. The respondent's mother could have been found to have ceased to be a factor in the case.

In the summer of 1943 the respondent sent his daughters to spend eight weeks at a children's camp in Vermont, the junior department of which was in the charge of the respondent's wife whom he was then planning to marry. She did not inform the petitioner that the children were going to Vermont. The petitioner argues from this that the respondent did not notify the Probate Court or the petitioner. See G.L.(Ter.Ed.) c. 208, § 30. Assuming this to be true, a decree for the petitioner is not thereby required as matter of law. See Hersey v. Hersey, 271 Mass. 545, 549, 550, 171 N.E. 815, 70 A.L.R. 518.

At the time of the hearing the respondent had a draft status of 1-A. The respondent's wife had stated that if he should be drafted, she might take the children to Virginia or Vermont, but testified that she had said this without knowing...