Keiter v. Keiter , 357 Mass. 772 ( 1970 )

On June 6, 1968, the Probate Court entered a decree that the petitioner (wife) was living apart from the respondent (husband) for justifiable cause; that the wife would have the care and custody of their child, Mitchell Ira Keiter, who was born on March 30, 1967; that the husband would have the right to visit and take the child for two hours on each Sunday afternoon; and that the husband should make certain payments for the support of his wife and child. On March 26, 1969, the wife filed a petition to modify the decree by permitting her to leave this Commonwealth with the child and to make their permanent home in the area of the city of New York where she had lived all of her life before her marriage and wheie her parents and other relatives still lived. After a contested hearing the Probate Court entered a new decree on June 11, 1969, allowing the wife to move to New York with the child, and changing the days and hours on which the husband might see and have custody of the child. The husband appeals from the second decree. The evidence is reported. All questions of law, fact and discretion are therefore open for our decision. The trial judge made a report of the material facts found by him. We may find facts in addition to those found by him; and, if satisfied that he was plainly wrong in the findings which he made, we may make findings contrary thereto. White v. White, 322 Mass. 30, 31. Sulmonetti v. Hayes, 347 Mass. 390, 391. The evidence consists principally of oral testimony. The trial judge had the benefit of seeing and hearing the witnesses, and we did not. His findings are justified by the evidence in the record, they are not plainly wrong, and we agree with them. The facts found support the decree from which the husband is appealing. There was no error.

Walter H. McLaughlin, Jr. (David G. Hanrahan with him) for the respondent. Joseph B. Abrams for the petitioner.

Decree affirmed.

Costs and expenses of appeal may be awarded in the discretion of the Probate Court.