Home JOSEPH SULLIVAN & others vs. LOUIS J. RICCI.

11 Mass. App. Ct. 1000

April 8, 1981

The plaintiffs contributed various amounts of money to their floundering real estate venture, and the defendant was to act as a second mortgagee and to assign the mortgage and the mortgage note to them upon demand. They allege that the evidence before the master showed that they were prevented from completing a sale of the property to a prospective buyer because the defendant wrongfully refused to execute a mortgage assignment form. They claim that the defendant is liable to them for "any profit which would have accrued to the trust estate if there had been no breach of trust." Restatement (Second) of Trusts Section 205(c) (1957).

The master's general finding that "[a]ny losses suffered by the plaintiffs were not occasioned by [the] defendant" was based upon his subsidiary findings to the effect that the sale did not take place because the plaintiffs could not agree among themselves to discharge the existing second mortgage on the property. As these findings are mutually consistent and legally correct (see Eno v. Prime Mfg. Co., 314 Mass. 686 , 702 [1943]; White Spot Constr. Corp. v. Jet Spray Cooler, Inc., 344 Mass. 632 , 635 [1962]; Lenari v. Kingston, 348 Mass. 355 , 358-359 [1965]), they are binding and conclusive on the parties. Bills v. Nunno, 4 Mass. App. Ct. 279 , 281 (1976). The master's order of reference provided that the evidence was not to be reported, and any attack on the evidentiary support for the master's findings which is not made in accordance with the procedures detailed in Bills v. Nunno, 4 Mass. App. Ct. at 282-283, and Miller v. Winshall, 9 Mass. App. Ct. 312 , 315-316 (1980), cannot prevail on appeal.

Judgment affirmed.

Home RALF HOEHN vs. LUISE B. HOEHN.

11 Mass. App. Ct. 1000

April 8, 1981

In this action for divorce brought by the husband, the wife defended on the ground of mental illness. After trial the judge made written findings and rulings in which she correctly found that the acts of the defendant towards the plaintiff constituted cruel and abusive treatment and she properly determined the only issue to be whether, because of her mental illness, the defendant was unable to comprehend the nature and consequences of her actions. See Cosgrove v. Cosgrove, 351 Mass. 64 , 66-67 (1966). As stated in Cosgrove, that issue is one of fact. Id. at 67. We read the judge's findings

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as holding that while some of the acts were committed while the defendant was "out of control," others were committed while she was capable of understanding the nature of her acts and their consequences. With respect to the wife, the judge found that "[h]er ability to care for her own needs, drive a car and be out in the community, albeit on her religious endeavors with predictions of the dire events to happen to the world, indicates that during these relevant periods, bizarre as her conduct may be, that she was capable for periods of time of knowing what she was doing. When examined in 1976, she was well oriented as to time, place and persons. She was aware of the court actions and the temporary order removing her from the household."

The case is a close one, but one which was for the judge to decide. The question before us is not what we or some other judge might have done faced with the same facts, but whether the judge who heard the evidence was clearly in error in deciding as she did. See Hano v. Hano, 5 Mass. App. Ct. 639 , 640 (1977). We hold that she was not.

The defendant contends that the judge erred in failing to appoint a guardian ad litem for her pursuant to G. L. c. 208, Section 15. The docket entries in the record before us show that before trial a guardian ad litem was appointed pursuant to the provisions of G. L. c. 215, Section 56A. That guardian ad litem was a qualified psychiatric social worker. She filed a report and testified at trial. Her report was thorough and complete as was her testimony. She did all that reasonably could have been done had she been appointed under G. L. c. 208, Section 15. We regard the appointment under Section 56A to have been sufficient and, in any event, can discern no harm which resulted to the defendant from it. Compare Rice v. Rice, 332 Mass. 489 , 490-491 (1955). Indeed, the defendant in her brief makes no suggestion that she was in fact harmed.

Judgment affirmed.