Marriage and Divorce. Evidence, Presumptions and burden of proof. Exceptions.
At the trial of a libel by a wife for a divorce on the ground of desertion continued for three consecutive years, the libellant testified, among other things, that on the date of the alleged desertion "the libellee got cross about nothing at all; they had an argument; and he got out. He never offered to come back to her nor invited her to come back to him. He has always known where she lived and he could have had opportunity enough if he had wanted to support her, if he wished to." In response to a letter from the libellee written eight days after the alleged desertion, accusing her of being unfair to him and of lying to him and demanding that she account for her whereabouts on a holiday just past, the libellant immediately replied by a letter stating among other things that the libellee had said many terrible things to her which she would never forgive, that it probably would be better that they live apart "so you go your way and I will go mine, and I shall never trouble you and you need never trouble me. . . . I am decided in this matter as I have thought it over and I feel that things will never be any different between us, and I know it." About fourteen months later she again wrote him: "I am perfectly satisfied as things are now." Held, that
(1) The letters of the libellant to the libellee did not as a matter of law prove that the separation was with the libellant's consent;
(2) A finding for the libellant and an ordering of a decree nisi were warranted.
BRALEY, J.
The only ground of divorce alleged is desertion by the libellee on or about April 20, 1913, when the parties separated; they never have resumed marital relations. It is as the libellee contends familiar law, that where the separation is with the libellant's consent there can be no desertion by the libellee. Foster v. Foster, 225 Mass. 183. The judge, however, not being bound to believe the husband's evidence, the only question is whether the letters between the parties when read together are sufficient as matter of law to bar the libel. The correspondence comprises a part only of the evidence, which considered as a whole warranted a finding that the libellee had deserted the libellant as charged, and that she never consented to his abandonment. The finding being conclusive, the court rightly refused to rule, that the libel should be dismissed, and that the letters written by the libellant to the libellee prove that the separation was with the libellant's consent. American Malting Co. v. Souther Brewing Co. 194 Mass. 89.
Exceptions overruled.