Ayares v. Ayares

Pattison, J., delivered the opinion of the Court. The appeal in this case is from a decree dismissing the bill of the appellant, Erona 1VÍ. Ayares, in which she asked that her husband, Richard B. Ayares, the appellee, be required ³⁸⁹ to pay to her alimony because of his abandonment and desertion of her. The evidence discloses that the parties were married on March 2nd, 1921.

After their marriage, they lived for five years in the upper story of a house the first floor of which was occupied by the parents of the wife. Thereafter they moved to an apartment not far away, which was occupied by them alone. It was while living- at the latter place that the separation of the parties occurred, in November, 1931. At that time the family consisted of the husband, the wife, and a seven year old son.

The husband’s mother was then, and had been for four weeks, a visitor at the home.-' She was unwell and under the treatment and care of the doctor. Previous to her visit to her son and daughter-in-law, she had lived in an apartment in Atlantic City, and, so far as the record discloses, was self-supporting. On the morning of the day of the separation there was a discussion between the husband and wife concerning the mother’s remaining with them longer. This was described by the husband as a quarrel, though the wife said there was no quarrel, that she had merely complained of his mother’s wrongful treatment of her without cause, and that she did not wish her to remain longer with them.

After the incident referred to, the husband left for his place of business, and the wife went out to do some marketing for the dinner of that day. She returned home about eleven o’clock in the morning and thereafter went to the hairdresser, and did not get back until five o’clock in the afternoon. At that time she found her son had returned from school and her mother-in-law had left the house. She wyas told by the maid that, while she was out, her husband had come home and collected his clothes and those of his mother, and with these both of them had left the house.

Upon learning these facts, the wife attempted to communicate with her husband over the telephone at his office. As stated by her: “I started to talk to him but he hung right up. lie would not let me say a word. * * * As soon as he heard my voice, he hung right up oil me.” ³⁹⁰ The husband, refused to pay for certain rugs and other articles purchased from “Stewart’s,” which were to be paid for by him. As a result thereof, these articles were removed from the house by means of legal proceedings instituted by that company. The defendant had also provided an automobile for the use of his wife, which was kept in a garage near the apartment occupied by them.

This he took from the garage, thereby depriving her of its use. On the third of November, the bill in this case was filed. In it the wife alleged the abandonment and desertion of her by her husband, and her inability to support herself and infant child; also that she was without means with which to pay her attorney dr defray the expenses for prosecuting the suit. It is shown from the evidence that the husband was unusually successful in business, and had, up to the time of the separation, provided well for his wife and child.

She spent the summers at Atlantic City,’ and, while there, her husband was generous in providing the necessary money for her enjoyment. Up to the time of the mother’s visit, it may be said that, with the exception of an occasional difference between them, they were kind and affectionate to each other. The husband, in an effort to justify his conduct in leaving his wife, testified that there were dissensions in the home from the moment his mother arrived. He readily understood that his wife did not want her, and she would say that his mother was not really sick but was lying, and that she did not want her there, and “if I did not like that I could get out with her.” This was said to him the evening preceding the day he left, and on the following morning she repeated what she had said the evening before, stating it even more forcibly.

The husband also charged his wife with not letting his mother eat at the table with them. As he testified, the cause of his separation was the ill treatment of his mother, and the fact that his wife had ordered him out of the house. Upon cross-examination, the defendant said that his wife told him, prior to the mother’s visit, that she did not want him to bring his mother to the house. He, nevertheless, ³⁹¹ permitted her to come.

The mother at one time had lived wit!) a brother of the defendant, but as there was some unpleasantness there in connection with her, the mother moved away. The defendant testified that his troubles with the plaintiff commenced from the day when they became engaged, and these troubles more or less continued, though when asked if his wife was always the cause of the trouble, he said no, that at times it was his fault. When further pressed he admitted that he caused such dissensions as often as she, or, as expressed in the record: “It was about fifty-fifty.” A letter from the defendant to his wife written in August, two or three months, before the separation, was offered in evidence. In this letter he addressed her as “Dear Sweetheart” and started off by saying: “Just arrived at the office, and rushed for the typewriter, so that I could get started at once, to write you a long letter, as I promised over the phone.

Sweetheart, staying away from you, for a period of two weeks, is quite a punishment, and I am looking forward to this coming Saturday, so that- I can jump behind the wheel, and drive to you and Sonny, as I miss the both of you, more than words can describe.” He closed the letter with these words: “With best love from a husband, who is still deeply in love with his pretty wife.” The defendant further testified that, on the day of the separation, he left his home about 8.30 in the morning. Around noon he received a telephone call from his mother, who said she was ordered out. The defendant was then asked if he intended leaving his wife when he left the house in the morning. His answer was: “I intended leaving all these years.

Q. All the seven years you had been intending leaving? A. Tes. Q. And that morning when you left to go to the office at eight or half past. * * * A. I had the same consideration for our arguments as I always had in the past, with no intentions at all of leaving. I left with the same old story ringing in my ears.

When I went to the office I forgot all about it until I heard my mother’s voice * * * and ³⁹² I understood then and there she ordered her out of the house and that was more or less the breaking point.” After he got the telephone message, the defendant went to his home and packed his mother’s things, and in his testimony he said: “Knowing my wife did not want me around, I thought the best thing for me to do was to pack up too. Q. Did you leave any word you were leaving? A. Yes, sir. Q. Who with?

A. With the maid. Q. And when you left you never intended to return any more, did you? A. That was my feeling at that time. Q. And it is now, isn’t it?

A. Well, that is to some degree. Q. To what degree? A. Well, I hadn’t had any chance, I am not in a position right now until I think matters over.” As already stated, the plaintiff called her husband over the phone on the day of the separation after learning from the maid that he had left, but he refused to talk with her. She called him again on the second night after the separation.

This, as it would seem from the record, was before the suit was instituted. He still refused to talk with her, and he explained by saying: “I felt she ordered me out and there was nothing else to do.” The plaintiff then offered to prove that, after the institution of the proceedings, she again endeavored to get him to return to her and his son, but this evidence was ruled out by the court below. The defendant’s refusal to talk with his wife on the second occasion before the institution of the suit was based, in part at least, upon the fact that she had sought to obtain credit in his name for goods she bought, or attempted to buy, after the separation. The merchants were notified by him not to extend credit in his name and the goods were not delivered.

Hot only, was credit denied her, but he went so far as to permit “Stewart’s” to replevy the rugs that were purchased with his knowledge, and which he admitted had been on the floors of their apartment for three weeks prior to the separation. The defendant testified that he could not say that he and his wife lived happily together, neither could he say they ' lived unhappily. He stated that she was a “saving sort of woman.” and. when asked if his wife’s treatment or alleged ³⁹³ treatment of Ms mother was not the only complaint he had to make against his wife, his answer was: “Well, no, that isn’t the only reason, no. Q. Well, tell us what other reason you have for not living with your wife ?

A.. The fact I was ordered out of my own home and there was nothing else for me to do. When the breaking point came I had to go.” Florence Mitchell, the colored maid above referred to, who lived with the parties to this suit at the time of their separation, and who had lived with them before they moved, on October 1st, 1931, to the apartment where the separation occurred, when called by the plaintiff, testified that the parties when living in their former home seemed happy and contented, and “got along all right; once in a while they would have an argument about the child. He corrected it and she would object.” Mrs. Ayares, the husband’s mother, did not come with them until after they had moved.

The husband and wife were all right to that time. The wife treated her husband “all right until his mother came, she did not want his mother there. * * * It was at that time that the unpleasantness started in the apartment.” On the morning of the separation Mrs. Ayares “quarreled with Mr. Ayares about his mother,” and she ordered him to “get out and take his mother with him”; and when Mrs.