317 Mass. 772

December 26, 1944

Appeal dismissed. This is a petition by Alice Gertrude Page Schladenhauffen, the wife of Robert Walter Schladenhauffen, for separate support of herself and for the custody and support of their minor children. (G. L. [Ter. Ed.] c. 209, Section 32.) On September 21, 1943, the judge entered a decree granting her petition. The respondent appealed from that decree seasonably and requested a report of material facts. See G. L. (Ter. Ed.) c. 215, Section 11. On April 5, 1944, the judge because of mistake revoked that decree. See Chagnon v. Chagnon, 300 Mass. 309. No appeal was taken therefrom. On the same day the judge entered a new decree in her favor nunc pro tunc as of September 21, 1943. The fact that that decree was entered nunc pro tunc did not affect the husband's right of appeal therefrom (Diggs v. Diggs, 291 Mass. 399), but he did not appeal from that decree. Since the decree of September 21, 1943, in favor of the petitioner was no longer in force by reason of its revocation, the respondent's appeal therefrom fell with the decree revoked. The appeal must be dismissed.

ROBERT WALTER SCHLADENHAUFFEN vs. ALICE GERTRUDE PAGE SCHLADENHAUFFEN. December 26, 1944. Decree affirmed. This is a petition by the husband of the respondent for a decree establishing that he is living apart from the respondent for justifiable cause and granting him the custody of their minor children. (G. L. [Ter. Ed.] c. 209, Section 32.) The case comes before us on the petitioner's appeal from the decree entered by the judge dismissing the petition. The evidence is not reported, but the judge at the request of the petitioner reported the material facts found by him. G. L. (Ter. Ed.) c. 215, Section 11. A recital of those findings with which the parties are familiar would add nothing to our jurisprudence. An examination of them satisfies us that they support the decision of the judge. See Macklin v. Macklin, 315 Mass. 451, 454. The decree entered by the judge is affirmed.


317 Mass. 772

December 27, 1944

Decree affirmed. This is an appeal from a decree dismissing the libel of Marjorie Adee Babcock against her husband alleging cruel and abusive treatment. The evidence is not reported but the judge made a report of material facts found by him. G. L. (Ter. Ed.) c. 215, Section 11. Assuming in favor of the libellant that the findings require the conclusion that in July, 1941, the libellee had been guilty of cruel and abusive treatment toward the libellant, they show that that conduct was condoned by the libellant, who continued to live with the libellee until September, 1941. While it is settled that condonation in such case is upon the condition that the spouse complained of will thereafter treat the other with conjugal kindness, and that breach of the condition may be shown by evidence which would not be sufficient to establish the principal charge, Gardner v. Gardner, 2 Gray 434, 441-442; Smith v. Smith, 167 Mass. 87, 92; Steere v. Steere, 265 Mass. 317, 318, we are of opinion that the facts found by the judge with respect to the conduct of the libellee between July and September, 1941, when the libellant left him, do not support a conclusion that it was sufficient in character to be said to constitute a breach of the condition of condonation.