Reed v. Reed

• Decision Date: 02 February 1960
• Citation: 340 Mass. 321,163 N.E.2d 919
• Parties: Milton REED v. Zulmira REED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 919

163 N.E.2d 919

340 Mass. 321

Milton REED v. Zulmira REED.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Dec. 10, 1959.

Decided Feb. 2, 1960.

No argument or brief for libellant.

George M. Thomas, New Bedford, for libellee.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The libellee has appealed from a decree nisi for divorce on the ground of cruel and abusive treatment. The evidence is not reported. At the request of the libellee the judge made a report of the material facts found by him (G.L. c. 215, § 11, as amended through St.1947, c. 365, § 3), which in its entirety is as follows: 'The libellant married the libellee on September 2, 1939, in New Bedford. On September 8, 1956, the libellee left the home as there had been many serious arguments over her companionship with another man. She refused to cease keeping company with this man, and the libellant's health was affected, and he lost weight. The libellee is now occupying the same home with this man, but insists she is merely his housekeeper. The nineteen year old daughter of the libellee states she had seen her father strike the mother previous to the separation. I find that the facts warrant a decree for cruel and abusive treatment.'

As the report of material facts is under the statute, it must contain every fact necessary to support the decree, from the entry of which no fact may be implied. Vergnani v. Vergnani, 321 Mass. 703, 75 N.E.2d 499. See Carilli Const. Co. v. John Basile & Co., Inc., 312 Mass. 726, 727, 59 N.E.2d 706. The case is to be decided upon the issue whether the facts reported, with any inferences we may draw therefrom, support the decree. Tenczar v. Tenczar, 332 Mass. 105, 106, 123 N.E.2d 359; Abrain v. Pereira, 336 Mass. 460, 461-462, 146 N.E.2d 360.

The report is extremely meager. The next to the last sentence in it appears to have no present bearing. It is a statement of testimony, and not a finding of fact, relating to misconduct of the libellant.

We do not regard this occasion as one for ordering a further report of facts. See G.L. c. 231, § 125A, inserted by St.1949, c. 171, § 1. Compare Lawson v. Lawson, Mass., 162 N.E.2d 670.

It is a fair summary of the reported facts that the libellee, before going to live at another's man's home, had insisted upon keeping company with that man despite the libellant's remonstrances, with the result that his health deteriorated and he lost weight. 'It is a reasonable inference from the facts reported that the libellee's persistence in her wrongful conduct over the protests of her husband caused injury to him * * * as a natural consequence of her deliberate and persistent misconduct. Rudnick v. Rudnick, 288 Mass. 256, 257, 192 N.E. 501.' Brown v. Brown, 323 Mass. 332, 334, 81 N.E.2d 820, 821.

The libellee relies upon Armstrong v. Armstrong, 229 Mass. 592, 118 N.E. 916, L.R.A.1918D, 426, in which the facts somewhat resemble those in the case at bar, where it was said, at page 594 of 229 Mass., at page 917 of 118 N.E., 'Neither words nor acts which do not involve physical violence, inflicted on...