Denisi v. Denisi , 334 Mass. 392 ( 1956 )

334 Mass. 392 (1956) 135 N.E.2d 668

ANNA M. DENISI
vs.
GIUSEPPE DENISI (and a companion case between the same parties).

Supreme Judicial Court of Massachusetts, Suffolk.

May 10, 1956. July 2, 1956.

Present: QUA, C.J., RONAN, WILKINS, SPALDING, & WILLIAMS, JJ.

Vincent E. Pichulo, for Anna M. Denisi, submitted a brief.

No argument nor brief for Giuseppe Denisi.

WILLIAMS, J.

These are appeals by Anna M. Denisi from two decrees of the Probate Court dismissing her petition for separate support and her libel for divorce both brought against her husband Giuseppe Denisi.

Her petition for separate support was filed on December 8, 1952, and alleged that she was living apart from her husband for justifiable cause; that he neglected to provide suitable support for her and their minor children, Anthony P. born June 16, 1937, and Catherine A. born August 29, 1939; and that on divers occasions he had been guilty of cruel and abusive treatment of her.

Her libel was filed March 11, 1954. It alleged the births of the two children, Anthony P. and Catherine A., and cruel and abusive treatment of the libellant at Boston on October 15, 1952, and at other times and places.

The petition and the libel were heard together. The judge found as material facts that the husband Giuseppe was sentenced to a term of three to four years in the State prison for a sex offence against his minor daughter Catherine; that the last time he struck his wife was about ten years ago although he might have pushed her once in the autumn of 1952; and that the parties last had intercourse in October, 1952. He found no gross neglect to provide suitable support, and that the petitioner had failed to sustain the burden of proving such cruel and abusive treatment as to entitle her to a decree for separate support or a decree nisi. He further found "condonation of any violence whatever except one possible mild pushing as a forcible gesture to ``get out and go to a show,'" and that the libellant brought her libel not because of anything the libellee did to her but because of what he did to her daughter.

There seems no error in the disposition of the cases. The record contains docket entries respecting an indictment for incest returned against Giuseppe on November 20, 1952, showing that he pleaded guilty to the indictment and was sentenced on February 5, 1953. Neither the petition nor the libel contains any allegation of adultery. The petition was dismissed on June 3, 1954, and the libel on February 3, 1955. The findings of the judge negative any failure to support or cruel and abusive treatment either in a physical sense, Benton v. Benton, 325 Mass. 736, or by way of mental cruelty. Brown v. Brown, 323 Mass. 332. Sylvester v. Sylvester, 330 Mass. 397, 400-401.

Decrees affirmed.