Sylvester v. Sylvester

• Decision Date: 07 July 1953
• Citation: 330 Mass. 397,113 N.E.2d 830
• Parties: SYLVESTER v. SYLVESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 830

113 N.E.2d 830

330 Mass. 397

SYLVESTER v. SYLVESTER.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued April 8, 1953.

Decided July 7, 1953.

Edmund Burke and John Christoforo, Boston, for libellant, submitted a brief.

Kenneth E. Wilson, Hyannis, for libellee.

Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

This is a libel for divorce dated February 11, 1952, and filed in the Probate Court for the county of Barnstable on February 25, 1952, alleging that the libellee at Brewster on the first day of August, 1950, and on divers other occasions was guilty of cruel and abusive treatment toward the libellant. The case is here on the appeal of the libellee from a decree granting the divorce. While the evidence is reported, there are no findings of fact.

The questions for decision concern the jurisdiction of the trial court and the sufficiency of the evidence to support the decree. The issue of jurisdiction was raised by the libellee's motion to dismiss the libel for 'want of jurisdiction' which we treat as a plead. Cochrane v. Cochrane, 303 Mass. 467, 22 N.E.2d 6, 138 A.L.R. 341; Lyon v. Lyon, 318 Mass. 646, 63 N.E.2d 459.

There was evidence that the parties were married on January 18, 1936, in New York city. Thereafter they lived in Provincetown and Wellfleet until 1938, when they left Massachusetts, returning in 1942. In 1946 a house was purchased in Brewster in which they lived until 1951. Title to the house was taken in the name of the libellee but in 1948 or 1949 it was transferred to the libellant. The libellant was a magazine writer and has had four novels published. In May, 1951, he obtained employment with the 'Voice of America' with headquarters in New York city and in September of that year moved with his family consisting of his wife and four children to Upper Nyack, New York. They lived there in a leased house until January, 1952, when the libellant left his family and went to New York city. The libellee and the children continued to live in Upper Nyack. The libellant testified that although he works in New York he 'commutes' to Brewster. He sold the Brewster house in May, 1952, but considers Brewster to be his home and intends to move back there. Since living on 'the Cape' he has never voted anywhere except in Massachusetts and voted in the Brewster town election in 1952. He has paid income taxes in Massachusetts for ten years and filed a tax return for 1952. On this evidence there was no error in the ruling of the judge that he had jurisdiction to hear the libel. The jurisdiction of the court to grant a divorce depended upon the domicil within the State of at least one of the parties. Royal v. Royal, 324 Mass. 613, 617, 87 N.E.2d 850, and cases cited. A libel may be filed, heard, and determined in the Probate Court for the county where one of the parties lives, G.L. (Ter.Ed.) c. 208, § 6, if before the cause of divorce occurred the parties had lived together as husband and wife in this Commonwealth and one of them lived here when the cause occurred, section 4. It appeared that, except for the interval from 1938 to 1942, the parties lived in Barnstable County from the time of their marriage until 1951 when they moved to Upper Nyack. It could be found that the libellant had established a domicil in Brewster; that the change of residence to Upper Nyack was for the purpose of living near where the libellant had obtained temporary work; and that there was no intention to leave Brewster permanently or to establish a new domicil. See Tuells v. Flint, 283 Mass. 106, 186 N.E. 222; Kennedy v. Simmons, 308 Mass. 431, 435, 32 N.E.2d 215. The continuing payment of taxes and the exercise of the voting privilege were some evidence of the libellant's intent. Todd v. Foster, 328 Mass. 136, 139, 102 N.E.2d 406.

At the hearing on the merits the libellant testified that on or about August 1, 1950, 'Mrs. Sylvester in a rage slammed the kitchen door and broke the glass. I remonstrated with her not to do such things in front of the children and she approached me and tore the sleeves out of my shirt'; that 'serious difficulties happened in 1947 and stemming as I came to understand from the publication of a book of mine'; 'that Mrs. Sylvester objected to the book * * * [which] was part of the difficulty'; that 'It wasn't anything Mrs. Sylvester stated, but over the course of four years I began to realize that she was doing everything in her power to prevent me from pursuing my employment, where I made my entire living and my entire income, it was a very grievous thing for me to realize, but I came to realize this was so'; and that there were 'almost continual quarrels * * * it affected me mentally to the extent that I was unable to do my work as I had done it for many years and my income dropped in a matter of three or four years from about $12,000 in one year to less than $4,000.' In cross-examination he testified that the incident of August 1, 1950, 'was the result of a continued series of arguments which stemmed back * * * to a book I wrote.' In reply to the question, 'During the entire course of your married life your wife never hit you, did she?' he answered, 'She did * * * in fact, on one occasion she kicked me.'

The term cruel and abusive treatment 'is broad enough to include mere words, if they * * * tend to wound the feelings to such a degree as to affect the health of the party.' Bailey v. Bailey, 97 Mass. 373, 380-381; Freeman v. Freeman, 238 Mass. 150, 160, 130 N.E. 220; Rudnick v. Rudnick, 228 Mass. 256, 257, 192 N.E. 501. In Freeborn v. Freeborn, 168 Mass. 50, 46 N.E. 428, a school teacher was so persistently nagged by his wife that he was affected nervously and his health was disturbed. It was held that a decree for divorce in the libellant's favor was not required as matter of law, although the court said, 'No doubt there may be such an habitual or frequent use of exasperating language as to warrant the granting of a divorce when injury to health follows.' 168 Mass. at page...