
    Helen T. Wyner vs. Edward N. Wyner.
    December 5, 1960.
    
      Harry M. Lack, for the petitioner.
    
      George A. McLaughlin, (John S. Slater with him,) for the respondent.
   Decree affirmed. We cannot say on the conflicting evidence that the finding of the probate judge that the petitioner had failed to prove justifiable cause for her living apart (G. L. c. 209, § 32) and the award of custody of the five younger children to the respondent were plainly wrong. He saw and heard the parties and other witnesses and talked at length with the children. The respondent’s admissions of impulsive acts of slight force do not as a matter of law require a finding of cruel and abusive treatment. The strong implication is that the judge’s talks with the six minor children (he being “primarily interested . . . for . . . custody, and only indirectly, if at all, on the merits”) were by consent. There was no exception to the procedure or to the judge’s subsequent statement. At the close of the case the judge reversed an earlier ruling which, on an assumed medical privilege, had excluded testimony of the respondent’s physician. The physician’s record was not expressly mentioned in the ensuing colloquy. Even so, it is the fair reading that the petitioner’s election to accept the judge’s suggestion that the earlier offer of proof stand in lieu of recall of the physician encompassed a waiver of all that might be reopened on recall. No prejudice is shown to the petitioner in this or in the other evidential rulings which were in any case within the judge’s discretion.  