Chabeaux v. Chabeaux

Offutt, J., delivered tbe opinion of tbe Court. Tbe parties to this appeal were married at Staten Island, U. Y., June 15th, 1905, and lived there about six or seven years. They then moved to Washington, D. C., where Claude Albert Cbabeaux, tbe appellant, obtained employment as a .stereotyper in tbe United States Government Printing Office, and lived in that city together as husband and wife until tbe latter part of May, 1921, when Butb Cbabeaux, tbe appellee, went to live witb ber mother at 252 Westervelt Avenue, Staten Island, and ber husband went to board witb Edward A. Kerr, an assistant superintendent in tbe office where Cbabeaux was employed. After that separation Cbabeaux at more or less regular intervals sent money to bis wife for ber support until .July, 1923, when tbe payments ceased.

On ÜSTovember 18th, 1929, Cbabeaux, who bad established a residence in Anne Arundel County, Md., filed in tbe Circuit Court for that ■county a bill of complaint against bis wife as a non-resident, in which be alleged that tbe defendant bad deserted him, that tbe desertion bad continued for tbe statutory period, bad been •continuous, and was final and beyond hope of reconciliation, and be prayed that be be divorced a vvnculo matrimonii from tbe defendant, and that tbe defendant be notified by publication of tbe substance and object of tbe bill. An order of publication was passed, a decree pro confesso entered in •ordinary course, testimony was taken, and on May 9th, 1930, ³⁷² a final decree was passed granting the plaintiff an absolute divorce from the defendant. On November 14th, 1930, Mrs. Chabeaux filed in the case a petition to vacate that decree on the ground that it had been procured through the fraud of Chabeaux, and that Chabeaux was not a bona fide resident of Anne Arundel County. Chabeaux answered the petition and denied the alleged fraud, and on the first of the following April the court, after a hearing, struck out the decree with leave to the defendant to answer within fifteen days.

She did answer,' and in her answer alleged that she and the plaintiff had separated by common consent, and that she had not deserted him. She then filed a cross-bill, in which she alleged that Chabeaux had deserted her, that the desertion had been continuous for more than three years, and she asked that she be divorced a vinculo from the cross-defendant and awarded suit money, alimony pendente lite, and permanent alimony. Chabeaux in turn denied the allegation that he deserted the cross-plaintiff, and further alleged that “as the defendant, Ruth Chabeaux, has denied that he is a resident of Anne Arundel County, State of Maryland, which denial raises the question of jurisdiction,-he is advised that if this court has no jurisdiction in this matter, that he should not be required by an order or decree of this court to pay her alimony and counsel fees before the jurisdiction of .this court is established.” The case was tried upon those issues, and after evidence and a hearing the court, on June 20th, 1932, granted the relief prayed in the cross-bill, divorced the cross-plaintiff from the cross-defendant, and awarded her as permanent alimony thirty-eight dollars per month. This appeal is from that decree.

The theory upon which the respective parties rely for affirmative relief is not wholly clear from the record. Chabeaux under the decree pro confesso gave this testimony: “9. Q. When did you and your wife part, and who left the home? A. My wife left on May 28th, 1921. . 10.

Q. Where were you living when she left you ? A. At 231 Rhode Island Avenue N. W., Washington. 11. Q. Why did your wife leave ³⁷³ you. ? A. At the time my wife left me we were living at the address stated above, and we were looking for a new home.

In the meantime my wife left me and went to her home in Staten Island, and she has never come back. 12. Q. Can you state to the court why she did not come back ? A. She claims. I did not have a satisfactory home. 13.

Q. Were you supporting her to the best of your ability at that time ? A. I was.

II

Q. Have you seen or heard of your wife since then ? A. I have not heard from her directly, but I have heard in an offhand way. 15. Q. And as I understand you, Mr. Chabeaux, the reason for her not coming back was that she was dissatisfied with her mode of living at the time you were living together in Washington, is that right? A. Yes, sir. 16.

Q. Any other reason? A. Hot that I know of.” But it appeared not only from the testimony of Mrs. Chabeaux, but from his testimony taken at a later stage in the proceedings, that the testimony quoted was, to say the least, misleading. The distinct impression left by what he said is-that Mrs. Chabeaux left him voluntarily while they “were looking for a home,” and did not come back because she was dissatisfied “with her mode of living” at the time they were living together in Washington. Mrs. Chabeaux, referring te the separation in 1921, said: “At our residence, the owner of the house wanted to occupy the house and he told us he would like to come in on May 1st, he gave us notice on April 1st,. 1921.

Then I looked around for an apartment and we could not decide, Mr. Chabeaux did not want this one and that one,, and then I had the time extended to the first of June, and we did not find an apartment to suit him, and I asked him if he wanted to go light housekeeping, and he said, ‘Ho/' and he said, ‘Suppose you put the things in storage and go to. your mother’s and I will look around until I find a place,’ and so we put the things in storage and I went to my mother’s,, that was the end of May, 1921.” And Chabeaux, examined at the final hearing gave this testimony: “Your wife has filed in this proceeding a bill known as a cross-bill she asking for relief instead of the court giving it to you, and now you are answering it. When your wife went to Hew York about. ³⁷⁴ 1921 was that by a mutual agreement? A. Well, in some ways it was and some ways it was not. I asked her to look up a place, a room or rooms before she left. 2.

When she went to Hew York was that by mutual agreement. A. Yes, because we could not find any place. 3. As I understand by your wife’s and yourself, in your testimony, according to the testimony you were renting from some one in Washington? A. Yes. 4.

And they wanted their property? A. Yes. 5. That was the cause of your being in the position you were as to no home? A. Yes. 6.

Was it your understanding your wife was to come back from Hew York and live in Washington with you ? A. Yes.” And when cross-examined on his testimony taken under the decree pro confesso he said: “You answered in your testimony in this case, in answer to the question, ‘When did you and your wife part, and who left the home,’ you said ‘my wife left on May 28th, 1921,’ you meant she went to her mother’s after you and she had talked it over? A. Yes. 2. You did not say that here.

In answer to question, ‘Why did your wife leave ?’ you said, ‘At the time my wife left, we were living at this address, and we were looking for a new home, and in the meantime my wife left and went home to Staten Island and has never come back.’ As a matter of fact she had come back? A. Hot to live. 3. You gave the"court the impression by that answer that she never came back ? A. I did not understand it that way. 4.

You were then asked why she did not come back, and you said ‘She claims I did not have a satisfactory home’ ? 5. That is all modified by the testimony given? A. Yes.” It is manifest from that testimony that when the parties separated in 1921, neither of' them intended by the separation to terminate the marital relation. So much at least is clear, but from that point on, the evidence is in part conflicting and entirely too vague, indefinite, and confused to afford a sufficient basis for affirmative relief of any kind to either party.

Chabeaux in his later testimony attempted to fix the date of the supposed desertion in the spring or summer of 1924, ³⁷⁵ •when, he said, his wife refused to live with him in an apartment which he had leased and occupied, but his statements are far from convincing. From the time of the separation until July, 1923, Chabeaux contributed forty dollars a month to his wife’s support while she was living with her mother at Staten Island, and he visited her there, at least twice, once in 1921 and once in July, 1923. On the latter occasion, he said that he went “to take her home with me and she refused to come,” but he admitted that at that time he had no “home”' to which to take her, and that he did not expect her to “leave right away” if she had consented to come. And while he said that the “home” he meant was his “place” in New Jersey, he said that he did not intend to stay there but that he expected to take his wife from there to Washington.

He further testified that after that visit he made m> further contribution to her support, and neither saw nor communicated with her until the following spring- or summer. In the meantime, however, Mrs. Chabeaux had employed counsel to compel her husband to; contribute to her support and he wrote Chabeaux on her behalf. Chabeaux at once took the matter up with a friend of his, an attorney in Washington, and on his advice leased an apartment at 1718 First Street N. W., Washington, for a term of eleven months beginning November 1st, 1923, and he testified that his attorney notified Mrs. Chabeaux of what he had done. The record does not disclose what that’ notice was, but it may be fairly inferred that Chabeaux did not invite his wife to occupy the apartment, until 1924, when she saw him in Washington.

Chabeaux said that on that occasion: “She called me up and wanted to have an interview with me, and I drove up- to Mrs. Boyer’s and I offered her the keys and all she said was, she refused the keys, and said she was not satisfied with that, and all she wanted was her freedom, and she told me then I was not man enough to give her her freedom, and I told her I could not do that in Washington — she knew of the charges * * And he further testified that she said that she would not live with him anywhere under any circumstances. But she gave a different account of the interview. She said: “I called ³⁷⁶ Mr. Chabeaux up and he said he would have to consult his lawyer before he could see me, and he called back