GENNARO CAPALDI, trustee, vs. BURLWOOD REALTY CORPORATION.

GIOVANNI PASQUALE DIROSA vs. IDA EDITH COCCHI DIROSA.

350 Mass. 765

February 3, 1966

This is an appeal by the wife from a decree entered in the Probate Court denying a petition to vacate a decree nisi for divorce granted to the husband on the grounds of cruel and abusive treatment. There was evidence that the husband was a frequent visitor at the home of another woman. However, there was no evidence of any display of affection between them. The fact that the parties had ample opportunity to commit adultery is not, of itself, grounds for divorce. Murphy v. Murphy, 244 Mass. 110 , 113. There must be some evidence of speech or conduct indicating an adulterous disposition. See White v. Ely, 234 Mass. 221 , 223. "[A] marital offence to be a bar to a libel for divorce must be sufficient of itself to constitute a ground of divorce." Krasnow v. Krasnow, 280 Mass. 252 , 255. Reddington v. Reddington, 317 Mass. 760 , 764. "[T]he court has discretionary power to reopen the

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case . . . `with the limitation that the discretion of the court ought not to be exercised unless it appears in some way that the defence is meritorious or substantial.'" Lye v. Lye, 322 Mass. 155 , 157. Our examination of the transcript does not reveal any error.

Decree affirmed.