Smith v. Smith , 1891 Mass. LEXIS 105 ( 1891 )

Knowhton, J.

If in this case we assume in favor of the respondent that the respondent and his wife were not living apart from each other while she was accustomed daily to go to his house and perform household duties there, it does not follow that the petition must be dismissed. The presiding justice found as a fact, upon evidence which was sufficient to warrant the finding, that the respondent’s conduct was such as to justify his wife in living separate and apart from him. He further found that, while she was sleeping away from her husband in his father’s house, and daily going to her husband’s house to attend to her duties there, “ she had the intention of making an absolute separation between them, and simply waited for what seemed to her a favorable and proper opportunity to make that separation.” After finishing her work, and going to the house of her husband’s father one night, as usual, she ceased to attend at the home of her husband, and on the following day went away and filed her petition in the Probate Court.

The judge ruled that it was competent for him “ to find, upon the evidence, that she was, at the time of bringing her petition, actually living separate and apart from her husband.” Under the circumstances, the judge might well have believed that, when she left her husband’s house on the evening before commencing her suit, she had no intention of returning, but intended to make her home at his father’s house, where she was then lodging. When she filed her petition she was in fact not only sleeping, but taking her meals, away from her husband’s home, and she has not lived with him since.

The court found that she did not communicate to her husband her intention of making an absolute separation between them, and there is no evidence that, after she ceased to attend to the affairs of his house, he had any notice of her intention to change her relations with him until after she filed this petition. The important question in the case is whether a wife can file a petition under this statute on the ground that she is actually living apart from her husband for a justifiable cause, without first giving him notice, express or implied, that she is so living. Following strictly the language of the statute, nothing is required as a preliminary to the petition but actually living apart from her husband for justifiable cause. The statute is a remedial one, for the benefit of wives and children. It will seldom happen that a wife will be living apart from her husband without his knowledge, but if she is, we see no reason for importing into the law by judicial construction what is not written there. If a suit is brought which the husband has no reason to anticipate, he can suffer nothing beyond being compelled to furnish her support away from him, if the court thinks she is entitled to it. There may be cases when it would be important to the wife, in view of an expected conveyance by the husband of his property, to be able to obtain security by attachment for her support immediately after beginning to live apart from him, and when by reason of his absence, or for some other cause, he would have no notice that she had ceased to live with him.

We are of opinion that the statute permits the commencement of a suit immediately after a wife has begun actually to live apart from her husband for justifiable cause, even though he has no knowledge of it.

It cannot be said, as matter of law, that the petitioner condoned the unlawful acts of her husband.

In view of the findings of fact made by the presiding justice, a majority of the court are of opinion that the respondent was not injured by anything that occurred at the trial.

Exceptions overruled.