## Facts

- Husband and wife had been married for about fifty years and had not lived together since 1931.
- The husband filed a libel for divorce in the Probate Court alleging (1) cruel and abusive treatment and (2) desertion.
- The probate judge found the wife’s testimony entirely credible and found no evidence that the wife deserted the husband.
- On cruelty, the judge found only two isolated incidents of verbal conflict, both admitted by the wife:
  - In about 1965, the wife went to the husband’s barber shop seeking money for her support and there was an “exchange of epithets.”
  - In 1967, after a court hearing concerning the husband’s failure to comply with a support order, the wife called him “a faker.”
- The Probate Court dismissed the libel for divorce and ordered the husband to pay the wife $100 as an allowance to defend the libel under G.L. c. 208, § 17.
- The husband appealed both the dismissal and the $100 allowance order.
- The appeal proceeded with the judge’s report and supplemental report of material facts but without a transcript; any recitals of evidence included in the report were not considered.

## Issues

1. Whether, in the absence of a transcript, the findings required a divorce decree on the grounds of desertion or cruel and abusive treatment.
2. Whether the Probate Court abused its discretion by ordering the husband to pay the wife a $100 allowance to defend the divorce proceeding under G.L. c. 208, § 17.

## Decision

- The court affirmed the decree dismissing the libel for divorce.
- The court held that, without a transcript, review was limited to whether the decree was warranted by the facts found and reasonable inferences from those findings.
- The court upheld the finding of no desertion because the judge expressly found no evidence supporting that ground.
- The court held that the two isolated episodes of verbal insult did not, as a matter of law, require a finding of cruel and abusive treatment warranting divorce.
- The court affirmed the $100 allowance order, finding no abuse of discretion.

## Legal Principles

- When the evidence is not reported, appellate review is confined to whether the decree is warranted by the trial judge’s findings of material facts and permissible inferences; alleged “recitals of evidence” in a findings report are disregarded.
- Verbal abuse can constitute cruel and abusive treatment in appropriate circumstances, but isolated or relatively minor insults do not necessarily satisfy the legal standard.
- Determinations whether conduct amounts to cruel and abusive treatment are largely for the probate judge; an appellate court will not disturb the decree if it is consistent with the findings.
- Allowances under G.L. c. 208, § 17 to enable a spouse to defend a divorce action are discretionary and are upheld absent a showing of abuse of discretion.

## Conclusion

The Appeals Court affirmed both the dismissal of the husband’s divorce libel and the order requiring him to pay a $100 defense allowance, holding that the judge’s findings (including no desertion and only isolated verbal incidents) warranted denial of divorce and that the fee allowance fell within the Probate Court’s discretion.


Lynch v. Lynch, 1 Mass. App. Ct. 589, 304 N.E.2d 445 (1973)