Buckner v. Buckner

Urner, J., delivered the opinion of the Court. The appellant and appellee were married on April 17, 1910. After living together about four months the wife left the husband against his protest and has refused his repeated requests for her return. In January, 1911, a hill for divorce a mensa e thoro was filed by the appellant against the appellee upon the ground of abandonment and desertion.

An order of publication was issued against the defendant, who was living with her relatives in New York, and in default of her appearance a decree pro confesso was entered and testimony taken ex parte. The defendant subsequently appeared by counsel and filed a petition stating that she had no knowledge of the pendency of the suit until she was notified of the fact by the examiner who took the depositions, and asking that the interlocutory decree be rescinded and leave be granted her to file an answer. An order was passed in compliance with this request, and the defendant immediately filed her answer denying that she had abandoned ¹⁰³ the plaintiff without just cause and averring that by reason of the plaintiff’s conduct she was driven from his home. At the same time she filed a cross-hill for divorce a mensa e thoro from the plaintiff upon the ground that he had: constructively abandoned and deserted her by permitting the existence of conditions which compelled the separation.

It was charged that at the time of the defendant’s marriage to the plaintiff she knew him to be a widower with three adult daughters, one of whom was married, and three sons, who were infants in law; that he maintained a comfortable home in Baltimore for himself and his five unmarried children; that he represented himself to he a man of large financial means and well able to takempon himself the additional obligations incident to the marriage upon which he was about to enter; that immediately after the marriage she was brought by the plaintiff to his home, where from the first she was subjected to indignities and insults by her husband’s children, to such an extent as to impair her health and render it impossible for her to remain a member of the household; that the conduct of which she complains was permitted hv the plaintiff without any interference on his part; and that her separation from him was thus made necessary and was not voluntary. The cross-hill prayed for alimony and counsel fees as well as for a partial divorce. In his answer to the cross-bill the husband denies that his wife was forced to suffer any indignities or insults in his home, and' alleges that her departure was without just or reasonable cause, and that he has since urged her repeatedly to return, hut she has steadily refused. An application was made by the wife for alimony pendente lite.

This was not granted, hut a counsel fee was allowed to the amount of one hundred dollars. Evidence was adduced orally before the Court below, and it decreed that the husband’s bill of complaint be dismissed, and that the relief sought by the wife’s cross-bill be granted only to the extent of an allowance of alimony at the rate of ten dollars per week, to date from the hearing, and an addi ¹⁰⁴ tional counsel fee of two- hundred and fifty dollars. Both parties have appealed. The husband seeks to have the deoree reviewed in its entirety, while the wife’s objection is that the amounts provided for alimony and counsel fee are inadequate.

The primary question is whether the wife was legally justified in leaving and remaining away from her husband and is thus in a position to successfully meet his charge of abandonment and assert a valid claim for alimony. At the time of their engagement the plaintiff had been a widower for ten months, and the defendant a widow for seventeen years. She was then living with her relatives in the City of New York, but had several years previously spent some time in the home of the plaintiff’s married daughter in Baltimore, when she had become well acquainted with him and his family. The plaintiff firs! called on the defendant in New York on Eebruary 2nd, 1910, and at once proposed marriage.

In referring to this event, the defendant testified: “When he .asked me to be his wife I knew his wife had only been dead about ten months, and I told him it was only a short time, and I wanted to be sure his daughters and all his children were perfectly satisfied with that step. It was very important with me, because I knew what that feeling must be with the daughters. * * * Well, he said, it seemed like ten years his wife was dead, and he was very lonesome, but the children were very fond of me during the time they had met me, they liked me very much and he felt I would make a suitable wife and a good mother to his children. I told him I could not decide until I heard personally from the children.” At his suggestion she wrote to them, and all except Lydia, one of the unmarried daughters, answered stating that their father’s interest was their own, and indicating that they were satisfied with the projected marriage. The engagement followed within a few days.

About a week later the defendant wrote the plaintiff that she had received -a letter from Rose, the other unmarried daughter, and that while it was very respectful it showed “between ithe lines that she and all the children are quite ¹⁰⁵ unsettled and very sad over our affairs.” The defendant’s letter proposed that the plaintiff provide a separate home in which they should live with the younger hoys, apart from the daughters. This suggestion was not accepted. The wedding occurred in Hew York after the parties had executed au aute-nuptial agreement providing for the payment of seventy-five dollars a month to- the wife during her life or widowhood, in case she survived her husband, in lieu of any other marital interest in his estate-. About a week later they arrived at the plaintiff’s home in Baltimore.

The defendant testified that during the four months of her residence there she was treated wiith great discourtesy by the two daughters of the plaintiff, who were living at home, and that he made no effort to control their conduct. In her testimony she makes some complaint of the- hoys also, hut as she expressed her willingness- to have them remain in the household and evidently did not leave on their account, her allusions to them need not be considered. The record leaves no doubt in our minds that the relations between the defendant and her stepdaughters were not as agreeable as they should have been, but the evidence is in conflict as to the extent of t-he unpleasantness and the responsibility for its existence. While Mrs. Buckner asserts generally that she was subjected to almost daily indignities, she has actually specified only a few instances, and these are relieved o-f the serious aspect she gives (them by the daughters’ explanations.

A careful consideration of the testimony has convinced us that the step-mother did not meet the situation in the spirit of cordiality and conciliation which it obviously demanded. From the time of her entrance into the family she appears to have maintained an attitude of sensitive concern for her position as mistress of the household that could hardly fail under the circumstances to- produce some unpleasant developments. The first act- of disrespect to which she refers occurred on the evening of her arrival. This was immediately preceding the Jewish Passover, and as the dining-room had been pre ¹⁰⁶ pared, and was to be left undisturbed, for that ceremony, according to the Jewish law .and custom which the family observed, it happened that the first meal provided for the new wife was served in the kitchen.

To this she. promptly took exception, complaining to her husband when they retired that it was “a very funny reception for a bridal couple.” The next “rumpus”, as she termed it, occurred when her husband handed her a sum of money for table expenses in pursuance of an arrangement they had previously made as to a. weekly allowance for that purpose. One of the girls objected to this on the ground that their mother had not received such an allowance, and that their father had told them there would not be any change in the home, “just a different face.” Mr. Buckner then asked his wife not to insist on the arrangement, but she testifies that she said: “Why not; I am your wife; I have' a right to it. He said: 'You have a right to it, but the children do not like it; ¡they do not approve of it, and for peace sake, give it up.” I says: 'For peace sake; you will tell the children to give it up; they have- nothing to do with this; you tell them our compact was made, and you made this promise to me, and they have no right to interfere.” When they were alone she told him that if he did not decide in her favor, she would take no interest in his home at all and would be there just as a boarder. He said: “Don’t be so sensitive, the children will be married soon, and then you can have everything your own way.” Mrs. Buckner testified that nearly every evening she had “this argument” with her husband, and that she gave up her interest in the home and lived mostly in her room.

Another complaint was that if her husband would just put his hand on hers at the table the children would make some insulting remark, but the only such utterance specified was attributed to the married daughter, who was there simply as a transient visitor and by whom it was explicitly denied. Once at the table Lydia got into a quarrel with her little brother and threw some water at him, part of which fell ¹⁰⁷ on Mrs. Buckner’s dress. She was greatly shocked and demanded of , Mr, Buckner to know whether this was what he called a happy home. On another occasion the girls “started right in to slander unmercifully” some friends of Mrs. Buckner, who had telephoned that they were coming to call.

In the evening when she wanted to go into the parlor she found the door locked. Mr. Buckner was with her, and called Lydia, to know why she had locked the door, and she replied that it was because the parlor had been cleaned that day and said “when her company comes she can take them out on the street.” Mr. Buckner said he would get the key and open the door. Mrs. Buckner, said “that is all right, but are you going to allow her to insult me like this.” He said, “She did not mean it that way.” In July Mrs. Buckner told her husband she would like to go homo to visit her people. He made no. objection and gave her money for her car-fare.

This was not used', but was left by Mrs. Buckner enclosed in a note to her husband in which she said: “You do not know or. understand how very homesick I have been and how great a change I have made in my life here with you, huh if yon will try to forgive all the unpleasantness we have had together, I believe I will be much happier after I have seen my folks again. I know you meant everything for the best, but you did not know all my habits and what I have been accustomed to, but '1 have promised to be your wife and I solemnly mean to be a faithful one, if yon will just make allowance for the difference in our habits.” When Mrs. Buckner returned 1o Baltimore, on August 17tli, Lydia had taken a position with the Educational Alliance1 of Homes for Girls which kept her absent from home the greater part of each day for some weeks, and during this period the stepmother and Rose looked after the household affairs together quite amicably. After Lydia gave up her position “she started right in,” said Mrs. Buckner, “finding fault with my work.” “I remember,” said she, “once she was getting up a dinner for someone, and I wanted to help ¹⁰⁸ her, and I asked her if there was anything I could make for the, supper. She said, “Ho, I shall not need your help.” I went out of the kitchen and I