Sanderson v. Sanderson

• Decision Date: 29 May 1930
• Citation: 271 Mass. 386,171 N.E. 476
• Parties: SANDERSON v. SANDERSON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 386

171 N.E. 476

SANDERSON

v.SANDERSON (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

May 29, 1930.

Appeal and Report from Probate Court, Middlesex County; C. N. Harris, Judge.

Suit by Philip S. Sanderson against Helen D. Sanderson for divorce, and petition by Helen D. Sanderson against Philip S. Sanderson for separate support. The cases were tried together, and, from a decre of divorce nisi and a decree dismissing the wife's petition, she appeals, and case was reported.

Reversed and remanded.

F. G. Lichtenstein and T. J. Maher, both of Boston, for Philip S. sanderson.

A. M. McDonough, of Boston, for Helen D. Sanderson.

PIERCE, J.

These are two appeals from decrees entered by the probate court, one from a decree of divorce nisi for cruel and abusive treatment on the part of the libellee, which also awarded custody of the minor children of the parties to the libellant, and the other from a decree dismissing the petition of Helen D. Sanderson for separate support. The cases were tried together by a judge of the Probate Court for the county of Middlesex, who filed a report of material facts under G. L. c. 215, § 9, at the request of the appellant.

The parties were married January 27, 1917, and lived together as husband and wife until December 24, 1928. ‘The last act of violence set forth in the specifications or testified to by the libellant occurred in February, 1928, but the parties continued to live together as husband and wife until December 24, 1928, when the libellee went to Nova Scotia, with his permission, to join her children who had been living there with a cousin of the libellant since the preceding September. The libellant accompanied her to the boat when she sailed, and testified on cross-examination that their parting ‘was as friendly as you could expect under the circumstances.’' On February 4, 1929, the libellant wrote his wife a letter in which he said: ‘I want you to pick up your belongings and start for home this week. I think you have staid long enough.’ The libellant testified that, after writing this letter and her refusal to comply with his request, he reached the decision to bring a libel for divorce. The libel for divorce, alleging cruel and abusive treatment, was filed May 28, 1929, and was served on her by registered mail in Nova Scotia after she received the letter above referred to. She remained in Nova Scotia until June, 1929. She testified that on her return to Massachusetts she went to her mother rather than to her husband because she had received the divorce summons and considered that her husband did not want her to come back to him; that within two weeks after her return from Nova Scotia she asked her husband to take her back and he refused; that she was always ready and willing and wanted to live with her husband and was so willing up to and including the time of the trial.

The libellee requested certain rulings as to the nature and kind of cruelty and abuse which lays a legal foundation for a divorce under G. L. c. 208, § 1. The judge refused to give the requested rulings and found as a fact that the libellee had been guilty of cruel and abusive treatment and that she was not living apart from her husband for justifiable cause. In passing we assume the judge instructed himself in accord with Bailey v. Bailey, 97 Mass. 373, and Freeman v. Freeman, 238 Mass. 150, 130 N. E. 220, although he refused to instruct himself in the form requested.

We assume, without decision, that the facts reported warranted the conclusion of fact that the libellee had been guilty of ‘cruel and abusive treatment’ as that phrase is defined in the cases above referred to and similar cases.

The judge refused to permit counsel for the libellee to argue the question of condonation ‘on the ground that no answer had...