Husband and Wife, Separate maintenance. Probate Court, Appeal.
Findings of fact reported by a judge of probate upon an appeal from a decree granting a petition by a wife for separate maintenance, where the record did not include the evidence at the hearing, were in substance that, beginning about three months after the marriage and while the wife was pregnant, the husband absented himself from her to visit his parents in an adjoining city when her ill health was such that she desired and needed his assistance; that he neglected her at the time of the birth of the child; that he ordered her father and brother out of his home; that they quarrelled over the question, whether he should be permitted, without her, to take the child, at times when he was between one and a half and four months old, to his parents' home; that against her protest he did so take the child; that such an attempt "resulted in an assault upon the petitioner by the respondent gripping her by the nose, forcing her from one room to another, choking her and otherwise abusing and cruelly treating her, as result of which the petitioner suffered greatly in mind and body, and was put in fear for her safety and that of their child, the petitioner then being in ill health and again pregnant"; that thereafter the petitioner left the home of the respondent and had not lived there since. The judge found that the petitioner was living apart from her husband for justifiable cause and a decree for the petitioner was entered. The respondent appealed. Held, that it could not be said as a matter of law that the judge would have been wrong in finding that such of the husband's conduct as was not illegal so affected the wife's health that her conduct in leaving him was not wrongful and that she was justifiably living apart from him. Conduct which will not justify divorce may be sufficient ground for a decree for separate maintenance. Merely remaining with the respondent during the months of her alleged maltreatment by him in the circumstances above described did not require as a matter of law that she should be found to have condoned his misconduct: the facts reported would sustain findings that any condonation was conditional and that the conditions were not fulfilled. The exercise of his legal rights by the husband, in the circumstances above described, might justify the wife, where her health suffered as a consequence, in withdrawal, at least for a time, from the home.
WAIT, J.
This is an appeal by a husband from a decree of a probate court adjudging that the wife is justifiably living apart, restraining him from interfering with her personal liberty and ordering him to pay her each week $30 for her support and that of their minor child.
We discover no error of law. The report of facts found by the judge shows no such conduct of the husband as would require a decree for divorce. It discloses a petulant wife; and a husband unable or unwilling to yield legal rights in order to give her happiness or to relieve nervous strain due, possibly, to unreasonable demands on her part, which, however, affectionate demeanor on his part might overcome. We cannot properly say that the judge was wrong in finding that the husband's conduct, though not illegal, so affects the wife's health that her conduct in leaving him was not wrongful and that she is justifiably living apart from him. Conduct which will not justify divorce may be sufficient ground for a decree for separate maintenance. Turner v. Turner, 234 Mass. 37. Lyster v. Lyster, 111 Mass. 327. See Murray v. Murray, 255 Mass. 19, and Goldberg v. Goldberg, 237 Mass. 279, 280.
The judge was not bound to make the rulings requested. Remaining with the husband was not necessarily condonation requiring that the wife's petition be dismissed. Ripley v. Ripley, 259 Mass. 26. The facts reported would sustain findings that any condonation was conditional and that the conditions were not fulfilled. Most of the rulings requested were immaterial. Although a husband may possess the legal rights set out in the requests, the exercise of them, in circumstances such as the judge found to exist, may, nevertheless, justify the wife, where her health suffers as a consequence, in withdrawal, at least for a time, from the home. The report does not show whether they were given or refused. The appellant has not been prejudiced, whatever disposition was made of them.
Decree affirmed.