Home ROY FRANK KIPP vs. DANIEL M. O'REILLY & others (and five companion cases).

5 Mass. App. Ct. 795

March 14, 1977

1. We need not decide whether there was a valid waiver of the claim of trial by jury (see Vaught Constr. Corp. v. Bertonazzi Buick Co. Inc. 371 Mass. 553 , 556-558 [1976]) in the one action (No. 3550) in which there was timely compliance with the first sentence of Mass.R.Civ.P. 38(b), 365 Mass. 801 (1974). The complaint in that action has not been reproduced in the appendix (compare Haddad v. Board of Appeals of Medford, 4 Mass. App. Ct. 843 [1976]), and there is no showing that there ever was a right to trial by jury under G. L. c. 185A, Section 23, as appearing in St. 1973, c. 1114, Section 39; to the contrary, the judge's description of the nature of the action indicates that there was no such right. 2. No other point has been argued within the meaning of Mass.R.A.P. 16(a) (4), as amended effective February 24, 1975, 367 Mass. 921 .

Judgments affirmed with double costs.

Home EDWARD F. MANNING vs. IRENE E. MANNING.

5 Mass. App. Ct. 795

March 14, 1977

The husband filed a complaint for divorce on the ground of cruel and abusive treatment. The judge granted a judgment of divorce nisi, from which the wife appeals. The case is before us without a report of the judge's findings but with a report of the evidence. Where a case comes to this court without a report of the findings but with a report of the evidence, the judgment imports a finding of all facts, open on the evidence, needed to support the judgment, and such findings must stand

Page 796

unless clearly erroneous. See Mass.R.Dom.Rel.P. 52(a) (1975). There was evidence from which the judge could have found that the wife intentionally engaged in a persistent course of conduct designed to harass and humiliate her husband. Brown v. Brown, 323 Mass. 332 , 334 (1948). Yee v. Yee, 2 Mass. App. Ct. 897 (1974), and cases cited. Compare Bailey v. Bailey, 97 Mass. 373 , 381 (1867); Freeman v. Freeman, 238 Mass. 150 , 159-160 (1921). The wife's numerous telephone calls to her husband at work her threats to speak to his employer, her quarreling with him over money, and her throwing his clothes out on the lawn when he came to pick them up were all facts which the judge could have found were part of a pattern of behavior which was reasonably likely to cause harm to the husband. Contrast Silverman v. Silverman, ante, 793 (1977). The judge could also have found that the natural consequences of the wife's actions were (1) reasonably likely to impair the health of her husband (see Rudnick v. Rudnick, 288 Mass. 256 , 257 [1934]), and (2) did in fact result in mental suffering (see Curtiss v. Curtiss, 243 Mass. 51 , 53 [1922]) which affected his health. See Reed v. Reed, 340 Mass. 321 , 323 (1960). There was no error in the entry of the judgment of divorce nisi.

Judgment affirmed.