Home ROSE P. MCAULIFFE vs. MORRIS P. FOX.

346 Mass. 772

November 19, 1963

Decree affirmed with costs. This is a bill in equity to restrain foreclosure proceedings by the defendant, the holder of two mortgages on the plaintiff's land in New Bedford. The master found that certain interest payments and city taxes for 1960, 1961, and 1962 are unpaid and that the city has initiated tax title proceedings. The master also found that the mortgages as amended by a supplemental agreement were in default and that the amount of $7,515 was due as of the date of the last payment. A final decree, from which the plaintiff appealed, declared that the mortgages were in default and that the plaintiff owed the defendant this amount. The plaintiff in a sketchy brief suggests that in some way on undisclosed evidence the supplemental agreement "supplanted the terms of the two mortgages." No such allegation appears in the bill of complaint. The record consists only of the master's report (see Shaw v. United Cape Cod Cranberry Co. 332 Mass. 675 , 678), which is conclusive of the facts. The report not merely supports, but requires, the decree. Wrentham Co. v. Cann, 345 Mass. 737 , 741. The appeal is wholly devoid of merit.

Home JAMES E. JANNETTI vs. KATHLEEN I. JANNETTI.

346 Mass. 772

November 27, 1963

Decrees affirmed without costs of appeal. After hearing cross libels for divorce, the judge entered a decree nisi granting a divorce to the husband as libellant, awarding custody of the two minor children to the libellee, subject to the right of the libellant to their companionship at stated times, and ordering payment by the libellant of $135 a week for the support of the children only, plus payments for Blue Cross and Blue Shield. Upon motion a supplementary decree was entered ordering the libellant to pay

Page 773

a sum as counsel fees of the libellee. The libellant's appeals are limited to the orders as to custody, support, and counsel fees. The evidence is reported. There is no report of material facts. In this state of the case, the decrees on the merits import findings by the judge of all the essential facts, permissible on the evidence, to support his conclusions. Buckingham v. Alden, 315 Mass. 383 , 385. The findings necessarily implied by the entry of the decrees are not to be reversed unless shown to be plainly wrong. Slater v. Munroe, 313 Mass. 538 , 546. Examination of the extensive transcript discloses conflicting evidence on the triable issues. The credibility of the testimony was for the trial judge. It cannot be said that the judge was plainly wrong in his award of custody, Grandell v. Short, 317 Mass. 605 , 608, or in his order for support. Whitney v. Whitney, 325 Mass. 28 , 30-31. As to counsel fees, we are mindful of what was said in Hayden v. Hayden, 326 Mass. 587 , 595-597. Although the award appears to be somewhat high, we cannot say that it is excessive.