This is an appeal by the libellant from a decree dismissing his libel for divorce. The ground alleged in the libel was cruel and abusive treatment. The evidence is not reported but the judge at the request of the libellant made a report of the material facts found by him. A substantial portion of the report consists of recitals of the evidence. This was improper. Such recitals have no place in a report of material facts and will be disregarded. Skerrett v.
The findings of the judge reveal the following: Since May, 1963, the libellant and his wife had been living apart. In December, 1963, he went to the house where his wife resided with their four children to take possession of an automobile owned by him which his wife had been using to transport herself and the children. The car at that time was stored in the garage, which was padlocked. "A typical husband and wife brawl ensued in front of the garage." Shortly thereafter it was "brought to an end by the timely arrival of the ... police."
Upon his arrival at his wife's home the libellant "was in an angry mood" and this caused his wife to be "nervous ... upset and ... angry." The primary cause of the altercation in front of the garage, and without which it would not have occurred, was the acts, conduct and language directed to the wife and the children by the libellant. During the altercation the libellant "received a bloody nose" and probably "other blows." These were "largely, if not wholly, administered" by the wife but these acts were not done "with a malicious intent or desire to harm or injure the libellant." The libellant "was the aggressor and ... the acts of the ... [wife], while physically violent, were principally preventative in nature."
The judge concluded that the libellant had not sustained the burden of proving cruel and abusive treatment; that although both had contributed to the altercation, the libellant was in no position to benefit from this inasmuch as he had "initiated a chain of events leading up to ... [the] brawl"; and that the evidence did not justify a finding that the wife was "cruel and abusive to the libellant within the statutory meaning of those terms."