Clarke v. Clarke

326 N.E.2d 722, 3 Mass. App. Ct. 736, 1975 Mass. App. LEXIS 765

Opinion

The wife appeals from decrees of a Probate Court dismissing her petition for separate support and giving custody of their minor children to her husband on a petition for custody brought by him. The case comes here with the judge’s report of material facts and designated portions of the transcript of the evidence. Rule 1:02 of the Appeals Court, 1 Mass. App. Ct. 883 (1972). The decision was based on oral testimony and the judge, who saw and heard the witnesses, was in a better position to determine their credibility than we are from a printed record. His judgment must stand unless found to be plainly wrong. Barnum. v. Fay, 320 Mass. 177, 180 (1946). Manoogian v. Manoogian, 1 Mass. App. Ct. 825 (1973). From our review of the evidence and of the facts found by the judge, we conclude that he was not plainly wrong and that his decrees must be affirmed.

John J. Ford for Janet Clarke. Andre R. Sigourney for Frederick Clarke.

So ordered.