
    Robert B. Burnham vs. Sheila B. Burnham.
    June 22, 1962.
   Decree dismissing libel affirmed. Decree dismissing petition to vacate decree affirmed. This is an appeal from a decree dismissing a libel for divorce for cruel and abusive treatment and an appeal from a decree dismissing the libellant’s petition to vacate the decree dismissing the libel. The evidence is reported. The judge made a report of material facts. From an examination of the evidence it appears that the findings of the judge were based on conflicting oral testimony. We cannot say that they are plainly wrong. Whitney v. Whitney, 325 Mass. 28. Young v. Young, 333 Mass. 767. The petition to vacate the decree was based on the disappearance of a letter written by the libellee and introduced at the trial. The libellant contends that the letter “confesses a course of conduct consistent with the testimony of the libellant”; that because the letter was lost sometime during the trial it was not considered by the judge when the decision was made or when the report of material facts was filed; that this is attested to by the omission of any reference to the letter in the report of material facts; and that “[t]his circumstance was aggravated by the fact that . . . the report . . . was not filed until almost five months after it was requested.” The judge stated that he read the letter when it was introduced and that the decree dismissing the libel was made three days later. We have read a copy of the letter which is reproduced in the record. We do not believe that the omission of any reference to the letter in the judge’s report is any indication that he did not give the letter full consideration. Although the report of material facts was not filed within the time prescribed by Rule 12 of the General Rules of the Supreme Judicial Court (1952), as amended, 340 Mass. 789, we do not think that the delay in filing constitutes a ground for vacating the decree.

Alvin S. Hochberg for the libellant.

Marshall Simonds for the libellee.  