Graham v. Graham

Grason, J., delivered the opinion of the court. On April 2, 1946, the chancellor (Judge Murray) granted a divorce a vinculo matrimonii, on the grounds of abandonment and desertion, to Jack Hampton Graham ⁴³⁷ (appellee) from his wife, Alice Graham (appellant). The wife was proceeded against as a nonresident, and, as she failed to appear as directed by the order of publication passed in the case, a decree pro confesso was taken against her and the papers referred to an examiner to take testimony. Two witnesses testified before the examiner, one, the appellee, and the other, Lelia Belle Graham, the mother of the appellee.

The solicitor for appellee made a statement to the examiner, in which he stated that on January 10, 1946, he mailed a copy of the bill of complaint in the case to the appellant at 20 Park Terrace Drive, Binghampton, New York, the address of the mother of appellant, and the appellant’s last known address. After the decree for divorce was signed, the case was heard by Judge Gontrum. On December 2, 1946, the appellant filed a petition in which she prayed the chancellor to strike out the decree. The chancellor sustained a demurrer to this petition.

On February 3, 1947, the appellant filed a first amended petition, under oath, in which she prayed the chancellor to pass an order annulling and setting aside: (1) The enrollment of the decree; (2) the decree; (3) the decree pro confesso; and (4) to reopen the case and permit the appellant to answer the bill of complaint and be heard in the premises. In her first amended petition the appellant averred that she did not abandon and desert appellee; that on the 16th day of April, 1944, she was driven by her husband and his mother, Lelia Belle Graham, from their home; that thereafter appellee visited her at various places and had marital relations with her until the latter part of December, 1944; that during this timé appellee promised to establish a home for her and their baby. On January 12, 1946, she received a letter from Kenneth C. Proctor, solicitor for appellee, which stated: “I have this date filed on behalf of your husband a bill for absolute divorce on the ground of desertion. Within a few days you will receive from ⁴³⁸ the Clerk of the Circuit Court of Baltimore County a copy of the Order of Publication which has been issued in this case.

You will note from a reading of said Order and of the Bill of Complaint that Mr. Graham does not propose to make any claim for the care and custody of your son, James Lewis Graham”; that this letter was referred to Ralph L. Emmons, United States District Attorney at Binghamton, New York, who advised her to do nothing until she received the papers referred to in Mr. Proctor’s letter; that “Petitioner (appellant) only recently learned that a decree of divorce had been granted and that she never received a copy of the Bill of Complaint or the Order of Publication” referred to in Mr. Proctor’s letter to her; that the decree does not provide for alimony for appellant nor for the custody of their infant son, nor does it provide for his support and maintenance; that the decree was obtained by deliberate fraud, perjury, deceit and imposition perpetrated and practiced upon the court and your petitioner (appellant) and her infant son; that the “case was not heard upon its merits and that your Petitioner has a good and meritorious defense if only given an opportunity to be heard”. The appellee answered this petition, testimony was taken in open court, counsel heard, an opinion of the chancellor filed, and on May 26, 1947, the chancellor ordered: “that the First Amended Petition of Alice Graham be and it hereby is dismissed; and it is FURTHER ORDERED that the said Alice Graham pay the costs of this proceeding”. From this decretal order the case comes here on appeal. Upon the hearing of appellant’s petition she was cross examined at length concerning her conduct while she lived with her husband at the home of his parents at Middle River, Baltimore County, Maryland, and before and after that short period.

This cross examination was chiefly based upon the testimony of the husband and his mother which was taken before the examiner. In considering the case, therefore, we will consider not only the ⁴³⁹ testimony taken before the chancellor on appellant’s petition, but also the testimony taken before the examiner. Stated in narrative form, the facts of this case are as follows: At the time appellant came to Baltimore, she was twenty-one years old. Prior thereto she lived with her mother at 20 Park Terrace Place, Binghamton, New York.

When she came to Baltimore she obtained employment with the Glenn L. Martin Company, at Middle River, Baltimore County. There she met the appellee, who also worked at that plant. They became friends and on the 4th day of May, 1943, Mrs. Helen Dunham, appellee’s mother, discovered her daughter was pregnant. The following day Mrs. Dunham came to Baltimore, saw appellee, and he admitted to her that he was responsible for her daughter’s condition.

On July 2, 1943, these parties were married in New York City. The uncontradicted testimony is that the appellee had previously refused to marry the appellant. After the marriage the appellant went to her mother’s home in Binghamton and the appellee returned to Middle River. On July 5, 1943, in a hospital in Binghamton, New York, a son was born to these parties.

Ten days thereafter the appellant returned to the home of her mother, in that city, and remained there until January, 1944. During that period her husband visited her at her mother’s home, at 20 Park Terrace Place, and in the fall of 1943 he wrote her several letters, which were addressed to her at 20 Park Terrace Place, Binghamton, New York. In January, 1944, the husband and his mother invited the wife to bring the baby to the home of the husband’s parents, at Middle River, Baltimore County, Maryland, to live with her husband. She said that this arrangement was to be temporary, as her husband promised her that he would get a house of their own as soon as he could.

The husband testified before the examiner: “After we were married she went back to New York with her people and the baby was born there. She stayed with her people until the following January, 1944. In the meantime I had gone up ⁴⁴⁰ once to see her. In January, 1944, I asked her to come back to live with me in Middle River, which she did, but she only lived with me until April. “Q. Was your child with you at that time?

A. He was. In that short time we lived together she was continuously complaining and said she only married me to give the baby a name; that she didn’t like it here, didn’t really love me, and that she was going back to New York.” “Q. From what locality did you last hear from your wife? A. 20 Park Terrace Drive, Binghamton, New York.” He testified that he had not lived or cohabited with his wife since she abandoned him in April, 1944, and she told him “she was not going to live with me. When she left she said she was through with me and I know there is no chance of our becoming reconciled.” Lelia Belle Graham, the mother of the appellee, testified before the examiner that she did not know the appellant “until my son brought her to our home in January of 1944”.

She testified: “He (appellee) was kind and affectionate to her (appellant). He paid her board and gave her ten dollars a week spending money”. She testified that the appellant was very indifferent to her husband and was always finding fault and complaining for no reason at all. “Q. You say that Mrs. Graham lived with her husband at your home until April of 1944. What happened at that time?

A. She said that she was going back to her people in New York; that she only married her husband to give the baby a name and it was only a marriage of convenience; that she didn’t like it here and didn’t intend to stay. She said in my presence that she not only didn’t love him but didn’t even respect him. Q. Where is Mrs. Graham living at the present time? A. The last I heard about her she was with her Mother in Binghamton, New York.” This was the testimony before the examiner, upon which the chancellor granted the decree.

The testimony of the appellant and her mother before the chancellor is, in substance, as follows: The appellant ⁴⁴¹ testified that from the time she arrived at the Middle River home it was apparent that she was not wanted. Her mother-in-law was cold and distant to her, rarely-speaking to her, did not introduce her to people who came to the house, and when she, in her embarrassment, left the room she could hear her mother-in-law whispering to the guests. She offered to help her mother-in-law with the household duties, but was not permitted to do so. She saw very little of her husband, as he did not come home until ten o’clock at night.

She went nowhere. She endured this treatment for awhile and then complained to her husband. She wanted him to establish a home for her and their child elsewhere, which her husband promised her he would do, but never did. She stated that her mother-in-law told her that she and her husband and her son (appellee) were going to move back to West Virginia in April, and that she would have to leave.

The mother-in-law scanned the newspapers for a place for appellant to go. She found a place and told her to move. She was practically put out of the house by her husband and his mother. After she left the Middle River home her husband came to see her and promised her that he would get a place and come to live with her and their child.

In September, 1944, she returned, with her baby, to the home of her mother, in Binghamton, New York, and remained there until December, 1944, when she returned to Baltimore. She left her baby with her mother. She again returned to Binghamton in December, 1944, and stayed there until August, 1945, and then came back to Baltimore. She remained in Baltimore from August, 1945, for a year and five months, or until January, 1947.

She said she returned to Baltimore because she could get lighter work here. She testified, in answer to the chancellor, that she had an apartment upstairs in the house of Sam Kornberg, at 2701 Alameda Avenue, on the 10th day of January, 1946; that she moved there around Thanksgiving and that she lived there until January, 1947. She afterward testified that ⁴⁴² this was in error, that she was living at 1700 Montpelier Street when the bill of complaint was filed. Prior thereto she lived at 1700 Montpelier Street, Baltimore City, and her landlady was Mrs. Gertrude Graham, and that she lived there for almost a year.

She stated that she was living at 1700 Montpelier Street at the time the bill for divorce was filed. She further stated that on January 10, 1946, she was living in Baltimore and had lived there continuously since August, 1945, and that she at that time intended to make Baltimore her permanent home, and did live in Baltimore City until January, 1947. She stated that she started to work for the Maryland State Unemployment Compensation Board, as senior clerk, on August 20, 1945, and worked for that Commission until November, 1946, and that her hours were from about eight until four. After her day’s work at this position, she worked for Sears, Roebuck and Company from five until ten P.M. She continued to work at Sears, Roebuck and Company until January, 1947.

In December, 1944, the appellee telephoned his mother-in-law, Mrs. Dunham, at Binghamton, and said that he wanted to see his wife, and she told him where she was. Mrs. Dunham learned of the separation in June, 1944. In February, 1945, she went to Middle River to see the Grahams. She stated that the mother of the appellee told her “that they should never have been married in the beginning and she said you know that they should never have been married, and I told her he should never have married her, that they should never have been married for the baby or anyone else, and I told her so in the beginning.” “I asked Mrs. Graham why she put Alice and the baby out and she said she could not stand Jack’s drinking and after the father came I asked him what had happened after Alice and the baby came home, had it caused him to drink, and he said absolutely no, and I said What was the trouble while she was there, and he said Well, it was his way of showing he didn’t like having her there the way things were going and the mother ⁴⁴³ said, I could not stand his drinking and that was the reason Alice had to go and when she came home crying, he was upset and his mother had said she had put Alice out because she could not stand Jack’s drinking.” From April, 1944, until about January 1, 1946, the defendant contributed nothing to the support of either his wife or child.

In December, 1945, the appellant went to Binghamton. While she was there her mother came to Baltimore County and instituted a criminal proceeding against the appellant for nonsupport of his infant child, as the result of which he was required to pay $8.00 per week to his mother-in-law for the support of his child. Mr. Wickes, the Probation Officer of the court, took the name and address of Mrs. Dunham. While he was getting this data, in the courtroom, Mr. Proctor inquired of Mrs. Dunham the address of the appellant in Baltimore.

She refused to give this information, because her daughter did not want her husband to know her address. The appellee contends that Mrs. Dunham told the solicitor for the appellant