COMMONWEALTH vs. GAETON G. PICA (and a companion case ).

PETER F. CARROLL vs. VICTORIA C. CARROLL.

358 Mass. 809

December 4, 1970

The libellant appeals from a decree of the Probate Court dismissing his libel for divorce on the ground of cruel and abusive treatment. The parties were married in June of 1947 and lived together off and on until December of 1951. The libellant and a witness testified that about a week before Christmas in 1951 the libellant was ill in bed with pneumonia. His wife left him and "went back to her mother's." The libellant's mother "got the doctor." The following evening his wife and her sister "came to the door and wanted to know if . . . [he] was all right. They didn't even come in the house." This was the only material evidence on the issue of cruel and abusive treatment. The probate judge ruled that the libellant "had not made out a case which would warrant . . . [a] finding that he was entitled to a divorce." We agree. Bonney v. Bonney, 175 Mass. 7 .

Page 810

The libellant objects to certain portions of the judge's voluntary "Report of Material Facts" wherein he made reference to the evidence and his findings at a prior hearing in 1953 before him between the same parties. That case was a petition for separate support brought by the wife. Slavinsky v. Slavinsky 287 Mass. 28 , 31. We disregard the portion of the judge's report of material facts objected to as irrelevant and unnecessary to his decision.

Decree affirmed.