Coleman v. Coleman

Markell, J., delivered the opinion of the Court. On February 27, 1946 the husband (appellee) filed a bill for divorce a mensa, alleging desertion by the wife (appellant) on January 19, 1946. The wife answered and on March 15, 1946 filed a cross-bill for divorce a mensa, custody of their (then) nine year old child and alimony, alleging desertion (by the husband by compelling her to leave him) on January 19, 1946. Later the wife struck out her prayer for divorce.

On September 25, 1946, after hearing, the cross-bill was dismissed, the husband was divorced a mensa, and the custody of the child was given to the wife. From the decree of September 25, 1946 the wife has appealed. In deciding this case the trial court said: “The testimony is not very complete on either side, but I must judge between the husband’s story and the wife’s story. I am certain of only one thing, and that is that the wife left the husband.

That she admits and he asserts. It seems to me that she has not proved any grounds sufficient to justify that. * * * I just believe what he says and do not believe what she says. If you want to know the basis of the decision, that is it. I think his testimony is more persuasive than hers.” We agree that the ²⁰⁵ testimony is meagre; it is principally the testimony of the parties, largely contradictory.

If this case is to be decided on the question, of veracity of the parties, it is pre-eminently one in which we ought not lightly to depart from the conclusion of the trial judge, who saw and heard the witnesses. We must, however, in any event consider whether the husband’s story of the wife’s departure on January 19th, if believed, is controlling in view of undisputed facts before and after that date. In such consideration of the case we cannot wholly ignore the fact that the husband’s story is contradicted by the wife in important respects. The parties were married on September 19,1935.

They have one child, a girl ten years old. They lived on Wolfe Street on the first floor of a rented three-story house. The husband’s mother, his sister and her husband live on the third floor. The second floor is “rented out” for $6 a week.

The wife is under care of a physician, whom she sees every week or two, and takes medicine regularly. The husband says, “As Johns Hopkins reports, my wife has been there since 1929 with a nervous heart, not a weak heart.” The husband says she “left” him twice before 194(£ to visit her mother and family in Virginia in 1941 and 1944, and “has stayed down there as high as a month.” He says, and she denies, that she “left” without telling him she was going. The husband has worked as a rigger, for Bethlehem Steel, at Sparrows Point, for twelve years. He says (testifying in September, 1946), “lots of times my take home pay drops as low as $33 or $34 a week.” “Maybe $35 or $37 is the best that I take home.” On June 10, 1945, he made $76.05, less deductions leaving cash received, $57.67 for the week.

In July, and again in August, 1945, his wife took him to the State’s Attorney’s office for non-support, and he was ordered, or agreed, to pay her, first $10 a week, then $7 plus $6 collected as rent for the second floor. ²⁰⁶ The first floor, where they lived, had heat from a gas range, a coal range, and, he says, “a coal oil stove part time.” She says, she was “without heat for two weeks or more” before January 19, 1946, she “had only one bushel of coal since Christmas,” she “had to burn the gas range, and when he got ready to take a bath he would cut that off, and light the hot water heater' and go upstairs and sit down” in his mother’s apartment. She says, he told her to get out, “to go where it was warm.” He denies her story and says he bought coal arid oil for her and she was “too lazy to go to the store and get her own oil” that he had bought for her. Each says" the. other had told him or her “to get out of the house.” The trial judge says, “The conflict of testimony about the heating of the house is not conclusive.” Marital cohabitation last occurred in December, 1945, before Christmas. On January 19, 1946, while the husband was at work, thé wife left the house and went to her sister’s,' taking with her the child, a large single, or “three-quarter, ’ ’ bed, some cooking utensils, a small radio, a small table, the washing machine and some of her clothes.

She says he sold her sewing machine. Three or four days after she left, and several times, she came back for medicine arid different things, and.he gave her what she wanted, except a wash tub. Three or four days (she says) or thrée or four weeks (he says) after January 19th, he changed the locks so that she could not get into the house in his absence. After she left, he took his cousin in to sleep with him and pay part of the rent.

On February.27th (she says) or in March (he says) she came back with the child and told him, “I came back home to stay.” He said, “You came back home to stay? I don’t see where you