Home HELEN W. HANSON vs. ROY W. HANSON.

361 Mass. 884

April 7, 1972

Mrs. Hanson has filed three petitions in the Probate Court seeking separate support. A 1966 petition was denied by a probate judge on November 25, 1968, after hearing. A second petition specifying cruel and abusive treatment and failure to support was never marked for trial. The present petition, filed in 1970, specifies desertion. The petition was denied and dismissed after full hearing by a second judge of the Probate Court, who has filed a report of material facts. The judge found that the Hansons, married in 1966, lived together until October, 1967, when they separated. There were no children of the marriage. Following the separation, the husband paid his wife $20 each week until April, 1968. Since then he has maintained Blue Cross and Blue Shield coverage for her but has not contributed to her support. She lived for a time after April, 1968, on the proceeds of the sale of the marital home and on her own earnings. A "bronchial condition" has forced her to stop work and she receives $115.85 every two weeks as "disability assistance from the Commonwealth." After "the decree on the first petition in November of 1968, she made no overtures to the . . . [husband] indicating that she was willing to have him . . . live with her." The husband, on net earnings of about $110 a week, since 1965 has supported a school age son by an earlier marriage. The report of material facts is consistent with the decree dismissing the petition. No finding supports a conclusion that the wife is living apart from the husband for justifiable cause, that the husband deserted her, or that he has failed to support her without justifiable cause. See G. L. c. 209, Section 32 (as amended through St. 1968, c. 370). The findings, concerning the 1967 separation (apparently by consent) and the wife's failure to indicate to the husband after the 1968 decree that she was willing to have him resume married life negate any marital wrong by the husband. See Farrell v. Farrell, 262 Mass. 209 , 210; Espinola v. Espinola, 273 Mass. 450 , 452. Mrs. Hanson has not established (cf. Brewer v. Brewer, 329 Mass. 482 , 484) that she is entitled to any separate support. See Vergnani v. Vergnani, 321 Mass. 699 , 702; Reed v. Reed, 340 Mass. 321 , 322.

Decree affirmed.

Home SLAGLE'S INCORPORATED vs. WILLIAM PEACOCK & another.

361 Mass. 884

April 7, 1972

The director of the division of employment security in a decision affirmed by the board of review found that the claimant, a seventy-one year old man, had worked as a cashier for the petitioner, the employing unit. He further found that medical evidence substantiated the claimant's contention that his work was unsuitable for him and that "under the circumstances his leaving of work was involuntary," and that the claimant was entitled to benefits if otherwise

Page 885

eligible. The petitioner, the employing unit, appealed from a decision of the Municipal Court of the City of Boston. We dispose of this matter on a procedural point. As pointed out by the director, the draft report on the decision of the Municipal Court, upon a petition for judicial review of the board's decision, was filed on March 8, 1971. The director moved that the draft report and the appeal from the Municipal Court action be dismissed on June 29, 1971, and this motion was denied. The draft report was not put in final form and allowed until August 27, 1971. Thus, final action was not taken within three months and the employing unit did not in that period petition for reestablishment of the report. Rule 36, II, of the Rules of the Municipal Court of Boston for Civil Actions (1952) provides, in part, "If final action on the draft report by the justice, who heard and decided the petition, is not taken within three months after the filing of the draft report and no petition for establishment has been filed, the decision of the district court shall stand." Bergen v. Jones, 4 Met. 371 . See Kravitz v. Director of the Div. of Employment Security, 326 Mass. 419 , 423.

Decision affirmed.