Massachusetts Divorce Grounds Cruel Abusive Treatment Adultery Lawyers Attorneys

PATRICIA B. DAVISSON v. HENRY S. DAVISSON (and a companion case)

Appeals Court of Massachusetts, Norfolk

September 11, 1981

On July 18, 1978, the wife filed a complaint for divorce on the ground of cruel and abusive treatment; subsequently the husband filed a complaint for divorce on the ground of adultery. The actions were tried together. The judge made detailed findings of fact organized according to the factors listed in G. L. c. 208, 34, in which, under the heading "conduct of the parties," he found that both parties had engaged in extramarital sexual intercourse following their separation in June, 1978. A judgment was entered on the wife's complaint awarding her a divorce for cruel and abusive treatment, giving her custody of the two minor children, alimony and child support, and making equitable division of assets. A judgment was entered on the husband's complaint stating thatsaid complaint be and hereby is dismissed; a divorce nisi having this day been granted to the defendant. Plaintiff husband appealed an order of the Norfolk Division of the Probate and Family Court Department Massachusetts.

Issues:

Whether the Plaintiff was entitled to a divorce based on the finding of the wife's adultery?

Whether the findings of fact did not entitle the wife to a divorce on the ground of cruel and abusive treatment?

Whether the husband was entitled to have custody, alimony and equitable division re-determined due to the judge's failure to take into consideration the premise contended for by the husband that he was entitled to a divorce and the wife was not?

The Court states the "Although it appeared that the findings made by the judge in a divorce action were insufficient to entitle the wife to a divorce for cruel and abusive treatment, this court did not disturb the judgment granting the wife a divorce where the husband had conceded in open court that the wife had grounds for divorce and where it was clear from the findings, based on the husband's admission, that he had committed adultery and the wife's complaint could be amended to conform to the findings without injustice to the husband. The further court held that the trial court's findings did not support a conclusion that the husband's behavior caused an impairment of the wife's health. However, the court affirmed the judgment granting the wife a divorce because the husband admitted to an adulterous relationship and the wife's pleadings could have been amended to conform to the findings. The court reversed the judgment of dismissal entered on the husband's timely complaint and remanded for the entry of judgment granting the husband a divorce on the ground of adultery, which the wife admitted at trial. The court found that no purpose would have been served by reopening the disposition of custody and alimony and equitable division of property, in which the wife's adultery was taken into consideration.

Conclusion:

This Court affirmed the judgment of divorce entered on the wife's complaint and reversed the judgment of dismissal entered on the husband's complaint and remanded for the entry of judgment granting the husband a divorce on the ground of adultery.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

Massachusetts Divorce Grounds Cruel Abusive Treatment Adultery Lawyers Attorneys

By: Atchuthan Sriskandarajah

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