Smith v. Smith
| Decision Date | 01 September 1891 |
| Citation | 154 Mass. 262,28 N.E. 263 |
| Parties | SMITH v. SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.H. Powers and J.N. Pierce, for plaintiff.
J. & R.C. Brown and C.G.M. Dunham, for respondent.
If in this case we assume in favor of the respondent that the respondent and wife were not living apart from each other while she was accustomed daily to go to his house and perform household duties there, it does not follow that the petition must be dismissed. The presiding justice found as a fact, upon evidence which was sufficient to warrant the finding, that the respondent's conduct was such as to justify his wife in living separate and apart from him. He further found that, while she was sleeping away from her husband, in his father's house, and daily going to her husband's house to attend to her duties there, "she had an intention of making an absolute separation between them, and simply waited for what seemed to her a favorable and proper opportunity to make that separation." After finishing her work and going to her husband's father's house one night as usual, she ceased to attend at the home of her husband, and on the following day went away, and filed her petition in the probate court. The judge ruled that it was competent for him "to find upon the evidence that she was at the time of bringing her suit actually living separate and apart from her husband." Under the circumstances the judge might well have believed that when she left her husband's house on the evening before commencing her suit she had no intention of returning, but intended to make her home at his father's house, where she was then lodging. When she filed her petition she was in fact not only sleeping, but taking her meals, away from her husband's home, and she has not lived with him since. The court found that she did not communicate to her husband her intention of making an absolute separation between them, and there is no evidence that after she ceased to attend to the affairs of his house he had any notice of her intention to change her relations to him until after she filed this petition.
The important question in the case is whether a wife can file a petition under this statute [1]on the ground that she is actually living apart from her husband for a justifiable cause without first giving him notice, express or implied that she is so living. Following strictly the language of ...
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