Opinion
November 2, 1949.
No argument nor brief for the respondent.
A.J. Ruberto, for the petitioner, submitted a brief.
Decree affirmed. This case and the companion case between the same parties decided herewith are petitions filed in the Probate Court by a husband against his wife, brought respectively under G.L. (Ter. Ed.) c. 209, § 36, and G.L. (Ter. Ed.) c. 209, § 37, and heard together. In both cases the wife appeared by counsel, who cross-examined the husband at the hearing. The wife did not testify. In each case the judge entered a decree for the petitioner. There was ample evidence which, if believed, would justify findings implied in the decrees that the wife deserted the husband by leaving their home in Pittsfield in the county of Berkshire; that later without his knowledge or consent she took the children with her to Florida; that he is living apart from her for justifiable cause; that the children are still domiciled in the county of Berkshire in this Commonwealth; and that their happiness and welfare require that the petitioner should have their custody. There was no evidence of any decree in Florida. The cases are governed by Goren v. Goren, 310 Mass. 284, and Conley v. Conley, 324 Mass. 530.