Barclay v. Barclay

Pearce, J., delivered the opinion of the Court. This is a bill filed by the appellee against her husband, the appellant, for a divorce a mensa et thoro on the ground of desertion, and the appeal is from a decree of the Circuit Court of Baltimore City, granting the divorce, and awarding to the appellee byway of permanent alimony, a monthly allowance of $50.00 out of the husband’s estate and earnings. The parties were married in Baltimore City on May 9th, 1883, and lived together until January 8th, 1895, when it is alleged the appellant abandoned his wife, leaving in her care ³⁶⁷ and custody their only child, then a boy of eleven years. It appears from a certain petition in the case that an answer to the bill was filed by the appellant, but it is not embraced in the record.

In his testimony given in the cause, he denies that he abandoned her, and alleges that she refused to live with him in a house of his own, or elsewhere than under her parents’ roof, where they had always lived. She denies that she refused to live with him in a house of their own, or that she was ever requested by him so to do, and she alleges that he left her in consequence of a quarrel between them caused by his acknowledgment to her a few days before he left her, that he was keeping a woman in Baltimore, and his refusal to give her up. That he did originally and before the execution of the articles of separation hereafter mentioned abandon her, whatever may have been the cause, is beyond question from a letter written by him to her January ioth, 1895, in which he said, “I have made up my mind you and I cannot get along. I could never be happy if I lived with you, so don’t try to have me do it, for I am determined to try and get along alone.

Blame no one for this. I have done it all, and as for the lady I told you about, we are two; I will never go near her. ” It is proper to add however that in his testimony he emphatically denied that he ever told his wife he kept a woman, and that he never did keep the woman his wife named as such. They never met after the date of this letter, except casually on one occasion at his mother’s house about six weeks thereafter, and on March 7th, 1895, the following articles of separation were executed between them: Defendant’s Exhibit No. 1. (Filed with the Examiner.) This agreement, made this seventh day of March, 1895, by and between John T. Barclay and Florence B. Barclay, his wife, of the city of Baltimore, Maryland.

Witnesseth that the parties hereto agree that they will live separate and apart from each other; that the said Florence shall not pledge the credit of said John T. Barclay in any manner or to any extent whatever, nor shall she contract any bills or obligations of any sort in his name; that said Florence shall have the custody of their son, Joseph T. Barclay and ³⁶⁸ shall provide for his maintenance and education out of'the money hereinafter mentioned to be received by her; that once in every two weeks the said Florence shall upon request of said John T. Barclay, send said Joseph to the residence of Mrs. Isabel Barclay so that said John may see said Joseph fir a reasonable time, said boy not, however, to be taken away from said residence by said John T. Barclay; that said John hereby authorizes and directs the Secretary of the Maryland Pilots’ Association to retain, in each month out of any monies that may be coming to him, said Barclay, the sum of fifty-seven dollars to be paid to said Florence, or her agent, on the last day of each month hereafter beginning with the last day of March, 1895, said payments to continue until revoked by mutual consent of the parties hereto; that the certificate of membership of sáid John in the Royal Arcanum shall remain payable as at present, the certificates in the Ancient Order of United Workmen and the Loyal Additional Beneficial Association to be made payable to said Joseph T. Barclay and the dues and assessments upon all three of said certificates shall be paid by said Florence, to whom the notices shall be sent, out of the monies to be received by her as aforesaid and that the articles of furniture belonging to said John T. Barclay now on the premises No. 1528 N. Caroline street, shall be and become the property of said Florence, but she shall not part with any of said furniture except by mutual consent. Florence B. Barclay. John T. Barclay. Witness as to both: James B. Guyton.

The appellee admits that these articles were prepared by her counsel, at her suggestion; that they were first signed by her, and were then sent to her husband through her counsel, and were then signed by him “all agreeing to this instead of taking it to Court,” and that under this agreement she was regularly paid $57.00 per month from March, 1895, up to February, 1902. On March 6th, 1902, the appellant assigned to George S. Colton, for the use of Charles Scarf, his interest in all monies then due him from the Maryland Pilots’ Association, and in his stock certificate of membership therein, until a note of $1500 due from him to said Scarf and dated December 10th, 1901, payable 60 days after date, should be fully paid, and since said assignment no payments have been made ³⁶⁹ to the appellee under the agreement, but that at the time the testimony of Colton was taken, $808.85 had been paid under said assignment and had been credited on the note. Colton was made a party defendant to the cause and the bill prayed that the assignment be annulled, and that the appellant be enjoined from disposing of his interest as a member of the Maryland Pilots Association. A preliminary injunction was granted, and the decree dismissed the bill as to Colton, but it does not appear, either from the docket entries, or from anything in the record, that the injunction was ever expressly dissolved, or made permanent.

The question upon which the decision of this appeal must turn is the effect of the articles of separation upon the complainant’s right to the divorce she seeks. In J. G. v. H. G., 33 Md. 406 , Bartol., C. J., said that since in such cases the Court sits, not in the exercise of its general and ordinary equitable jurisdiction, but as a Divorce Court, and our Code is silent as to the principles by which it is to be governed, “it has always been considered that the decisions of the English Ecclesiastical Courts, in similar cases, may properly be referred to as precedents; and they have uniformly been cited and relied- on as safe and authoritative guides for the Courts of this State in disposing of cases of this kind.” And in Schwab v. Schwab, 96 Md. 596 , while holding that in mere “matters ot procedure in such cases we are at liberty to depart in so far from the methods formerly prevailing in those Courts which have now passed out of existence, as to make our practice conform to the weight of modern authority,” this Court repeated the language of Judge Bartol as to the authority of the principles established by the Pfnglish decisions. Turning then to these precedents, it may be regarded as settled by them that a voluntary deed of settlement is not,per se, a bar to a suit in the Ecclesiastical Court for a divorce. Durant v. Durant, 1 Hagg. 733; Speering v. Speering, 3 Swabey & Tristram, 211; Matthews v. Matthews, 1 Sw. & Tr. 499; Crabbe v. Crabbe, E. R., 1 P. & D. 601, and other authorities cited in 1 Bishop on Marriage and Divorce, sec. 634.

It was ³⁷⁰ so held in this State in J G. v. H. G., supra, and in Kremelberg v. Kremelberg, 52 Md. 557 . But the English cases maybe said to be very nearly uniform in also holding that a voluntary deed of separation between the parties, in connection with lapse of time, and other circumstances, may be sufficient to show that the application was not made bona fide, but for some collateral purpose, and in such cases the application has bepn denied. Such was the case of Matthews v. Matthews, 1 Sw. & Tr. 499, where a deed of separation was made in 1853, reciting differences between the parties, and in 1859 the wife petitioned for a divorce on the ground of cruelty. The lapse of time alone was held not to be an absolute bar, but taken in connection with the deed of separation was held to show that the application, was not bona fide for the wife’s protection, but for some collateral purpose, and the petition was dismissed.

So in Thomas v. Thomas, 2 Sw. & Tr. 113, where husband and wife executed a deed of separation in 1854, setting forth that’ the husband had been living for some months with a Miss H. and referring to certain articles of agreement concerning trust moneys and other property, to which Miss H. and the husband and wife were all parties. In 1860 the wife petitioned for a judicial separation on the ground of the husband’s adultery with Miss H. in 1858 and 1859, and it was held that the execution of the deed of separation, knowing the husband was co-habiting with Miss H. was virtually a consent to its continuance, and that the petition must be dismissed. In Crabbe v. Crabbe, L. R., 1 P. & D. 601, after a deed of separation \yith an allowance to the wife, she petitioned for a divorce on the ground of adultery and desertion. Two quarters of the allowance had been paid, after which further payments were.refused by the husband.

The Court dismissed the petition, saying, “The broad question is whether a woman who has quitted her husband’s home under a bargain to do so, made by a deed of separation, can be said to have been deserted without cause by him. This hardly bears stating, unless the consent of the complaining party is unimportant.” In Parkinson v. Parkinson, L. R., 2 P. & D. 25, which is ob ³⁷¹ served upon in J. G. v. H. G., the wife had been deserted, and two years later, a deed of separation had been made with an allowance to her, but none had been paid. She petitioned for a divorce for