Vergnani v. Vergnani

• Decision Date: 04 November 1947
• Citation: 75 N.E.2d 497,321 Mass. 699
• Parties: VERGNANI v. VERGNANI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 699

75 N.E.2d 497

VERGNANI

v.VERGNANI.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 4, 1947.

Action for separate maintenance by Enes Esta Ferioli Vergnani against John Vergnani. From a decree of dismissal, petitioner appeals.

Decree affirmed.

See also 75 N.E.2d 499.Appeal from Probate Court, Hampden County; J. A. Denison, judge.

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

A. T. Garvey, of Springfield, and J. J. O'Connor, of Boston, for petitioner.

P. E. Granfield, of Springfield, for respondent.

QUA, Chief Justice.

The petitioner appeals from a decree of the Probate Court dismissing her petition against her husband for separate maintenance brought under G.L. (Ter.Ed.) c. 209, § 32, as amended by St.1938, c. 136.

The petition alleges the three grounds set forth in the statute of failure to support, desertion, and that the wife was living apart from the husband for justifiable cause. The evidence is not reported. The judge, in response to a request by the petitioner, made a report of material facts in these words, ‘Having done so several times before, on October 2, 1946, the * * * [petitioner] left her husband, taking with her many articles of furniture. He remained in the home for a time and then moved a trailer which he had bought to the yard of a place where he was employed and settled down. He helped incorporate the Independent Fence and Iron Works, Inc., for whom he now works, holding an interest in the corporation and drawing $50 a week as pay. The * * * [petitioner] at one time threw a knife at the * * * [respondent] and cut his forehead.’

The petitioner complains, and it would seem with cause, of the inadequacy of these findings. The purpose of requiring a trial judge upon seasonable request to ‘report the material facts found by him,’ whether under G.L.(Ter.Ed.) c. 215, § 11, as now appearing in St.1947, c. 365, § 3, applicable to appeals from Probate Courts, or under G.L.(Ter.Ed.) c. 214, § 23, as now appearing in St.1947, c. 365, § 2, applicable to appeals in equity cases from the Supreme Judicial Court or the Superior Court, is to provide a means by which a party, without incurring the expense of having all the evidence reported, can obtain a statement of the findings of the trial judge upon which his decision rested, in order to test on appeal the correctness in law of that decision. Such meager findings as are here reported obviously do not accomplish this purpose and seem better adapted to conceal errors of law than to reveal them. The circumstances in which the petitioner left her husband are not disclosed. There is nothing by which this court can test the question whether a finding that she was not living apart from him for justifiable cause was warranted. There are no findings by which we can determine whether there was error on the issue of nonsupport. The time and circumstances of the knife throwing incident and its relation to the issues in the case are not shown. For aught that appears this may have occurred years ago, and the act of the wife, even if it constituted an unjustified assault, may have been long since forgiven. It is hardly conceivable that the evidence would not have admitted of findings more complete and more helpful than these. It is true that the appealing party cannot dictate to the judge the nature and extent of the facts to be reported. Merrill v. Everett, 293 Mass. 327, 199 N.E. 735. He cannot catechise the judge as to specific facts. City of Boston v. Dolan, 298 Mass. 346, 349, 10 N.E.2d 275. He cannot require the judge to report facts which the judge in good faith does not consider material to the decree entered by him. Fields v. Paraskis, 318 Mass. 726, 727, 63 N.E.2d 906, and cases cited. The facts to be reported must therefore depend largely upon the judge's view of what facts are decisive, and the degree of particularity with which he should report subsidiary facts must depend largely upon the nature of the case and of the questions of law involved. The party aggrieved can always protect himself by seasonably requiring the evidence itself to be reported. Nevertheless, the judge who is requested to make a report of material facts is charged with a serious judicial responsibility. He should avoid a merely perfunctory discharge of that responsibility and should sincerely endeavor to make the statutes effective by exposing clearly to this court the foundation of fact upon which he relied in entering his decree. His duty is somewhat analogous to that of a master.

The question of the remedy of an appellant for an inadequate statement is another matter. The judge's statement of material...