Mooney v. Mooney

• Decision Date: 30 December 1944
• Citation: 317 Mass. 433,58 N.E.2d 748
• Parties: MOONEY v. MOONEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 433

58 N.E.2d 748

MOONEY

v.MOONEY.

Supreme Judicial Court of Massachusetts, Norfolk.

Dec. 30, 1944.

Libel for divorce by Phyllis Rose Mooney against Peter Muldoun Archer Mooney. From a decree dismissing the libel, libelant appeals.

Reversed and rendered.Appeal from Probate Court, Norfolk County; J. F. Reynolds, Judge.

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

D. F. McCormack, of Boston, for libellant.

No appearance for libellee.

DOLAN, Justice.

This libel for divorce alleging cruel and abusive treatment, G.L.(Ter.Ed.) c. 208, § 1, comes before us on the libellant's appeal from the decree entered by the judge dismissing the libel. The evidence is not reported, but at the request of the appellant the judge made a report of the material facts found by him. G.L.(Ter.Ed.) c. 215, § 11.

The material facts found by the judge may be summed up as follows. The parties were married in Quincy on September 1, 1943, and lived together until their separation on October 15, 1943. On the evening of that day they ‘stopped in at a café where the libellee had some drinks * * * [and] got ‘grunk,’ and ‘noisy’.' The libellant suggested that they go home. The libellee became angry, and after they arrived at their apartment they had an argument and the libelee ‘struck or slapped the libellant, knocking her down, and then beat her. The libellant, hysterical, got up and immediately went to her mother's home. They never lived together after that. The * * * [libellant] sustained bruises on her back, throat, arms and legs as a result of the thrashing. This was the only occurrence of physical force used by the libellee against the libellant.’ The judge further found that ‘this isolated instance was not extreme cruelty’; that the libellee drank intoxicating liquor but that there ‘is no evidence that he drank to excess'; that the libellee had been duly served with notice of the pendency of the libel but had not appeared; that the libel was uncontested; and that ‘there was insufficient evidence to enter a decree nisi.'

The finding that the evidence was ‘insufficient * * * to enter a decree nisi’ carries no weight. See Sidlow v. Gosselin, 310 Mass. 395, 38 N.E.2d 665. Since the evidence is not reported the only question for determination is whether the facts found by the judge as provided in G.L. (Ter.Ed.) c. 215, § 11, together with the reasonable inferences therefrom, support his decision. The only duty of the judge was to make a correct decision on the pleadings and the specific facts found. Kennedy v. Shain, 288 Mass. 458, 459, 192 N.E. 924;Macklin v. Macklin, 315 Mass. 451, 454, 53 N.E.2d 86, and cases cited.

We are not called upon to discuss the distinction between cruel and abusive treatment and extreme cruelty. ‘The distinction between cruel and abusive treatment and extreme cruelty, also a ground for divorce under Gen.Sts. c. 107, § 9, Pub.Sts. c. 146, § 1, but omitted from R.L. c. 152, § 1, is pointed out in Lyster v. Lyster, 111 Mass. 327, 328, 329,Jefferson v. Jefferson, 168 Mass. 456, 47 N.E. 123,Osborn v. Osborn, 174 Mass. 399, 400, 54 N.E. 868.’ Freeman v. Freeman, 238 Mass. 150, 160, 130 N.E. 220, 221. It may be observed, however, that when the statute set forth extreme cruelty as one of the causes for divorce the court said: ‘There must be extreme cruelity, without the fault of the wife, to authorize the court to liberate her from the control of her husband. But when force and violence are once used without provocation, the woman is unsafe. Such a husband ought not to have power over his wife. The excuse [mental derangement on the part of the...