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• Title: Rubinstein v. Rubinstein
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 14, 1946
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

Description

WILKINS, Justice. This libel for divorce, filed February 20, 1945, in the Probate Court for Worcester County, alleges desertion and other grounds and seeks custody of a minor child. The answer contains a denial and sets up that on that date the libellant was not the wife of the libellee, because he had obtained a decree of divorce at Reno, Nevada, on March 28, 1938. At the hearing it was agreed that the libellant was entitled to a decree for desertion unless the Nevada divorce was a bar. From a decree reciting that the parties 'are not now husband and wife, having been divorced in another jurisdiction,' and dismissing the libel, but awarding custody, the libellant appealed. The Judge made a report of the material facts found by him. G.L.(Ter.Ed.) c. 215, § 11. The evidence is reported. It is our duty to examine the evidence and to decide the case on our own judgment. Questions of fact as well as of law are open for our consideration. Vergnani v. Guidetti, 308 Mass. 450, 455, 32 N.E.2d 272. We can find facts not expressly found by the Judge, and if we are convinced that he was plainly wrong, we can find facts contrary to his findings. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27; Malone v. Walsh, 315 Mass. 484, 490, 53 N.E.2d 126; Jurewicz v. Jurewicz, 317 Mass. 512, 513, 514, 58 N.E.2d 832. The parties were married in Boston on August 22, 1926, and lived together in Worcester until 1933. They have one child, a daughter born April 5, 1928. In 1934, at a time when a cause of divorce for desertion had not accrued under G.L.(Ter.Ed.) c. 208, § 1, the wife filed a petition for separate support in the Probate Court for Worcester County, alleging desertion and 'cruelty,' and on May 1, 1934, a decree was entered to the effect that she was living apart from the husband for justifiable cause, and orders relating to custody and payment for support were made. That decree, which did not set forth the grounds on which it was based, was never modified, but a petition for modification was heard and dismissed on March 25, 1935, while a 'motion to rehear case' was filed by the husband in March, 1937, but never heard.

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