Lye v. Lye

• Decision Date: 08 December 1947
• Citation: 322 Mass. 155,76 N.E.2d 180
• Parties: ANN G. LYE v. EARL A. LYE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 155

76 N.E.2d 180

ANN G. LYE v. EARL A. LYE.

Supreme Judicial Court of Massachusetts, Middlesex.

December 8, 1947

November 6, 1947.

Present: QUA, C.

J., DOLAN, WILKINS SPALDING, & WILLIAMS, JJ.

Marriage and Divorce, Objections to decree absolute. Probate Court Revocation of decree. Evidence, Competency.

At a hearing on a document containing both objections by the libellee to a decree nisi of divorce for cruel and abusive treatment becoming absolute and a petition that the decree be vacated and that the case be heard on its merits, based on the ground that the libel had been heard as an uncontested case and that the libellee had not had his day in court for want of notice of the assignment of the libel for hearing, where the judge had admitted testimony by the libellee to show that he had a meritorious defence to the libel in that he had not been guilty of cruel and abusive treatment of the libellant and that she had been guilty of such treatment of him, there was no error in the admission of testimony for the libellant to show the contrary; nor was there error in a decree overruling the objections and dismissing the petition or in the finding implied therefrom that the libellee did not have a meritorious defence.

LIBEL for divorce filed in the Probate Court for the county of Middlesex on July 23, 1946.

Following a decree nisi, the libellee filed as one document objections to the decree nisi becoming absolute and a petition that such decree "be set aside and vacated and revoked and that the case be heard on its merits." There was a hearing by Monahan J., who indorsed the document, "After hearing objections overruled and the within petition is hereby dismissed."

F. C. Zacharer, for the libellee. S. Abrams, for the libellant.

DOLAN, J. This is an appeal from a decree entered in the Probate Court overruling objections filed by the libellee

(Earl A. Lye) to the decree of divorce nisi awarded to the libellant, his wife, becoming absolute, and dismissing his petition to vacate that decree.

The evidence is reported. No report of material facts was made by the judge none having been requested. Facts disclosed by the record may be summed up as follows: On December 6, 1946, the decree nisi in question was entered for the cause of cruel and abusive treatment. On March 17, 1947, the libellee filed objections to the decree nisi becoming absolute on the ground that he had not been notified by his attorney, or by anyone else, of the assignment of the libel for hearing on December 6, 1946, and did not know that it had been so assigned until after the libel had been heard as an uncontested case and the decree nisi had been entered thereon. The evidence discloses that, at the time of hearing of the objections by the judge, he received certain evidence for the purpose of determining whether the libellee had a meritorious defence. This evidence consisted in part of the testimony of the libellee tending to show that he had not been guilty of cruel and abusive treatment toward the libellant and that, on the contrary, she had been guilty of cruel and abusive treatment toward him. The libellant was called as a witness by her counsel and was asked whether the "actions" of the libellee caused her fear or mental disturbance. She replied, "Yes." Having been asked to state what those actions were, counsel for the libellee objected saying, "I don't think we should be trying the divorce case now." That objection was overruled by the judge,...