Hayden v. Hayden

• Citation: 326 Mass. 587,96 N.E.2d 136
• Parties: HAYDEN v. HAYDEN.
• Decision Date: 15 December 1950
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 136

96 N.E.2d 136

326 Mass. 587

HAYDEN v. HAYDEN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 6, 1950.

Decided Dec. 15, 1950.

S. MacMillan, Boston (L. L. Wadsworth, Jr., Boston, with him), for libelant.

T. J. Hayes, Boston (D. J. O'Connell, Boston, with him), for libelee.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING, and WILLIAMS, JJ.

SPALDING, Justice.

These are appeals from two decrees entered by a Probate Court in connection with a libel for divorce. One dismissed the libel; the other ordered the libellant to pay into court the sum of $3,000 and directed the register to pay this sum to the libellee's attorney.

1. The libel, as amended, alleged adultery on the part of the libellee with a named corespondent. ¹ The appeal from the decree dismissing the libel comes here with a report of the evidence and a report of material facts. The facts may be summarized as follows: The parties were married in 1934 and for many years have resided in Bedford. The libellant is 'well past middle age' and the libellee is 'somewhat younger.' Of this marriage there are two daughters, the ages of whom at the time of the hearing below were twelve and fourteen. In July of 1949 the libellee and the children went to Provincetown to spend their vacation. The libellant did not accompany them but the vacation was with his consent and approval and he provided the necessary funds for it, including the rent for a small apartment in which they lived. At this time and for some time prior the relations between the spouses had not been harmonious. The judge found that while at Provincetown the libellee committed adultery with the corespondent. This finding was amply justified by the evidence and is not here challenged. The issues raised by this appeal are (1) whether the libellee's conduct was condoned, and (2) whether there was connivance on the part of the libellant.

The judge found that the libellant had condoned his wife's misconduct. The libellant argues that this conclusion was inconsistent with the subsidiary findings and is not supported by the evidence. The libellant's suggestion that the defence of condonation may not be open, because not pleaded, is without merit. Condonation is an affirmative defence which ordinarily ought to be pleaded, and in the absence of such pleading a party cannot as of right introduce evidence on the issue. Sanderson v. Sanderson, 271 Mass. 386, 389, 171 N.E. 476; Eldridge v. Eldridge, 278 Mass. 309, 312, 180 N.E. 137; Callan v. Callan, 280 Mass. 37, 42, 181 N.E. 736. This principle is unaffected by the omission from the present Divorce Rules of the Probate Courts of the earlier provision that 'No affirmative defense shall be heard unless set up by the answer.' Costa v. Costa, 295 Mass. 556, 4 N.E.2d 324. But it does not preclude a court from dealing with the issue in circumstances such as are disclosed here. The libellant did not object to the introduction of evidence on the issue of condonation and the question was gone into fully by both sides. Some of the evidence relating to condonation was brought out by questions put by the judge. Moreover, virtually all of the evidence concerning this issue was undisputed. In these circumstances it is the duty of the court to notice it and deal with it irrespective of the pleading. 'Merely procedural rights of parties are not necessarily coextensive with the duty of the court touching the termination of the state of matrimony between libelant and libelee.' Webster v. Webster, 264 Mass. 551, 554, 163 N.E. 197; Newman v. Newman, 211 Mass. 508, 510, 98 N.E. 507; Sanderson v. Sanderson, 271 Mass. 386, 389-390, 171 N.E. 476.

The facts with respect to condonation are these. Early in September, shortly after the libellee had returned from Provincetown, the libellant, who had learned of his wife's adulterous relations with the corespondent, signed the libel and it was served on the libellee on September 12, 1949. At that time the libellant told the libellee to leave the house and offered her some money with which to live elsewhere; he forbade her to take the children with her. The libellee refused to leave and since that time both parties have continued to live in the same house up to and including December 1, 1949, the last day of the hearing in the court below. The house is owned by the libellant, and his place of business, which consists of a laboratory where a proprietary medicine is manufactured, is located near by on land forming a part of the estate.

Other facts we state in the language of the judge. 'The parties had no sexual intercourse after February, 1949, but in view of their ages and their obvious distaste for each other their abstension from such relations is not of decisive importance. They ate at the same table and occupied adjoining but not directly connected bedrooms. ² In all respects except sex relations they live as they have lived for many years. The libellant has not tried to end the libellee's occupation of the house except by asking her to leave. ³ Her alternative to remaining in the home was and is to abandon personal care of the children to a maid of all work who was a witness at the trial and the court finds that the children ought not to be left wholly to the maid's care. The libellee takes good care of the children who are bright and well brought up and devoted to her. It would not be for their benefit now to be forcibly separated from her, notwithstanding her past misconduct. She was justified in refusing to leave them on the night of September 12 and since then was justified morally, if not legally, in staying to take care of them in the only place available to her. The libellant has ample means to live elsewhere and it was reasonable and easy for him to have left the house at any time after September 12.'

Concerning the libellant's intent the judge found as follows: 'There was no direct or express evidence upon the libellant's motive or intention in respect of condonation. The libellant had no conscious motive or intention about condonation one way or the other, because he had no knowledge of the concept of condonation as affecting his libel. This conclusion is implied from his attitude in court and the course of the trial. The libellant believed that the mere fact that he owned the house and told her to leave warranted his staying there. He was being advised at all times by competent counsel and did not try to qualify the appearance of living with the libellee as his wife.'

We are of the opinion that the judge erred in concluding that the libellant had condoned the libellee's misconduct. '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. Since there was no direct evidence bearing on the libellant's intention and since the judge found that the libellant had 'no conscious motive or intention about condonation one way or the other,' his state of mind must be deduced from his acts and conduct in the circumstances. The facts found by the judge together with those disclosed in the evidence show, we think, that the libellant did not forgive his wife. It is apparent that after the libel was served on the libellee the parties did not continue to live together as husband and wife in any real sense. Their relations after that date were at best a truce pending the determination of their rights by the court. In short, beyond the fact that the parties were living together under the same roof and were eating meals at the same table they had virtually nothing to do with each other. It is to be noted that the house was owned by the libellant and that his place of business was located in a building on the premises. He also had the duty of driving his children to and from their school in Concord, or at least he seems to have been the only person available to perform that duty. In the circumstances he was not obliged to leave or run the risk that his remaining would be treated as condonation. See Smith v. Smith, 154 Mass. 262, 28 N.E. 263; Ripley v. Ripley, 259 Mass. 26, 155 N.E. 658; Coan v. Coan, 264 Mass. 291, 162 N.E. 663; Burke v. Burke, 270 Mass. 449, 454, 170 N.E. 384; Giles v. Giles, 279 Mass. 469, 181 N.E. 505; Quigley v. Quigley, 310 Mass. 415, 38 N.E.2d 624. Compare Holsworth v. Holsworth, 252 Mass. 133, 147 N.E. 578. We have read the numerous cases dealing with condonation cited by the libellee and find nothing in them inconsistent with the conclusion here reached.

Since, as we hold, a finding of condonation was not justified, it becomes necessary to determine whether the defence of connivance was established. ⁴ The findings of the judge relating to this issue were as follows: 'The libellee committed adultery with the corespondent in the summer of 1949 at Provincetown. Her association with the corespondent earlier in the year caused the libellant to have justifiable suspicions of adultery as early as May, 1949. The libellee and her two children lived in an apartment in Provincetown from early July, 1949, until about September 1, 1949, and the corespondent lived in the same apartment more or less of that time and the adultery took place there. The libellant paid the rent of the apartment. On July 29, 1949, the libellant sent a detective to Provincetown to watch the libellee. He reported to the libellant facts that showed that the libellee and the corespondent were living in Provincetown with adulterous relations and the libellant received the report before he wrote the letter to the libellee dated August 3, 1949, which is in evidence as exhibit 4. In this letter the libellant wrote, 'When you left I told you that I thought five weeks would be enough for the Provincetown cottage. I am willing to extend this to six weeks or to August 22, when you will return home.' On August 12, 1949, he wrote the letter exhibit 5 to her at Provincetown. This letter relates to July bills of the family at...