Burke v. Burke

Wait, J.

This is an appeal by a husband from a decree of a probate court adjudging that the wife is justifiably living apart, restraining him from interfering with her per *454 sonal liberty and ordering him to pay her each week $30 for her support and that of their minor child.

We discover no error of law. The report of facts found by the judge shows no such conduct of the husband as would require a decree for divorce. It discloses a petulant wife; and a husband unable or unwilling to yield legal rights in order to give her happiness or to relieve nervous strain due, possibly, to unreasonable demands on her part, which, however, affectionate demeanor on his part might overcome. We cannot properly say that the judge was wrong in finding that the husband’s conduct, though not illegal, so affects the wife’s health that her conduct in leaving him was not wrongful and that she is justifiably living apart from him. Conduct which will not justify divorce may be sufficient ground for a decree for separate maintenance. Turner v. Turner, 234 Mass. 37 . Lyster v. Lyster, 111 Mass. 327 . See Murray v. Murray, 255 Mass. 19 , and Goldberg v. Goldberg, 237 Mass. 279, 280 .

The judge was not bound to make the rulings requested. Remaining with the husband was not necessarily condonation requiring that the wife’s petition be dismissed. Ripley v. Ripley, 259 Mass. 26 . The facts reported would sustain findings that any condonation was conditional and that the conditions were not fulfilled. Most of the rulings requested were immaterial. Although a husband may possess the legal rights set out in the requests, the exercise of them, in circumstances such as the judge found to exist,” may, nevertheless, justify the wife, where her health suffers as a consequence, in withdrawal, at least for a time, from the home. The report does not show whether they were given or refused. The appellant has not been prejudiced, whatever disposition was made of them.

Decree affirmed.