Holsworth v. Holsworth

• Decision Date: 18 April 1925
• Parties: HOLSWORTH v. HOLSWORTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 133

147 N.E. 578

HOLSWORTH

v.HOLSWORTH.

Supreme Judicial Court of Massachusetts, Norfolk.

April 18, 1925.

Appeal from Probate Court, Norfolk County; J. R. McCool, Judge.

Libel for divorce by Doris C. Holsworth against Wayne C. Holsworth. From a decree nisi, granting divorce for cruel and abusive treatment, libelee appeals. Reversed.A. M. Beale, of Boston, for appellant.

R. Walsworth and H. F. Butler, both of Boston, for appellee.

WAIT, J.

[1] The libelee appeals from a decree of the probate court which grants, nisi, to the libelant a divorce for cruel and abusive treatment. The judge has found that the libelee was cruel and abusive as charged in the libel. His findings of fact will not be disturbed, as there was evidence which, if believed, would sustain them, and as they are not plainly wrong. Meader v. Meader (Mass.) 147 N. E. 578; Drew v. Drew, 250 Mass. 41, 144 N. E. 763.

[2] The only question that requires determination is whether by returning and living with her husband as his wife, the libelant has condoned the offenses denounced in her libel. If the libel must be dismissed on this ground, the other objections to the decree are immaterial.

[3] The libel bears date September 26; the order of notice was obtained October 2; and service was made October 13, 1923. An order for the custody of a minor child was made on September 26, 1923. The last act of cruel abuse was alleged to have been on August 10, 1923. On that day the libelant left her husband, taking their child, and went to her mother in Connecticut. On August 26, 1923, the libelee went to Connecticut, asked his wife to return to him, and, on her refusal, took his child back to Boston. His wife followed him, and lived with him as his wife until September 19, when, having completed her arrangements for divorce proceedings and for securing custody of the child, she again left him. Her return was for the purpose of taking the child from its father, and with no intention of forgiving her husband unless he yielded to her demands. Her conduct, nevertheless, constitutes condonation of the offenses charged in the libel. The husband or wife who, knowing of marital offenses committed by the other, continues to live with that other in marital relations, condones the offense and cannot set it up as a ground of divorce. Rogers v. Rogers, 122 Mass. 423;Maglathlin v. Maglathlin, 138 Mass. 299;Brown v. Brown, 208 Mass. 290, 94 N. E. 465;La Flamme v. La Flamme, 210 Mass. 156, 96 N. E. 62,39 L. R. A. (N. S.) 1133;Drew v. Drew, 250 Mass. 41, 144 N. E. 763; Keats v. Keats, 1 Sw. & Tr. 334, 346; unless the continued living together is compulsory. Gardner v. Gardner, 2 Gray, 434, 441;Leech...