ACUSHNET HOSPITAL ASSOCIATION vs. TOWN OF ACUSHNET.

JOSEPH H. WILBUR vs. IRENE R. WILBUR.

318 Mass. 781

October 30, 1945

Decree affirmed. This libel for divorce on the ground of cruel and abusive treatment was brought in the Probate Court. After a hearing a decree was entered denying the libel but ordering it "continued on the docket of the court from time to time" and providing for the care, custody and support of the four minor children of the parties. The libellant appealed to this court. The evidence is not reported but there is a report of the material facts found by the judge. The facts found include only two incidents in the conduct of the libellee toward the libellant -- one in September, 1941, and the other on March 9, 1942. The findings import that the parties continued to live together until the second incident after which the libellant "never returned." The judge made no finding that either or both of the incidents did or did not constitute cruel or abusive treatment other than may be inferred from the decree denying the libel. We are of opinion that the facts found do not lead to the conclusion that the libellee was guilty of cruel and abusive treatment of the libellant. The libel was denied rightly. The findings fall far

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short of the findings in Mooney v. Mooney, 317 Mass. 433 . There is no contention that, if the libel was denied rightly, the remainder of the decree was not proper. See G. L. (Ter. Ed.) c. 208, Section 20; Harrington v. Harrington, 254 Mass. 506 .