Heinmuller v. Heinmuller

Burke, J., delivered the opinion of the Court. On the 6th day of October, 1917, Helen P. Heinmuller, the appellefe, filed a bill of complaint against her husband, Carl Heinmuller, in which she prayed: “(a) That your oratrix may be awarded the care, custody and guardianship of the two infant children, Carl and Louise M. Heinmuller; “(b) That your oratrix may be declared to be entitled to receive by way of permanent alimony' such an allowance of her husband’s estate as may be proportionate to his earnings and station in life; “(c) That in the meantime the said Carl Heinmuller, her husband, may be required to pay unto your oratrix a reasonable sum for her support and maintenance and for the support and maintenance of the two infant children during the pendency of this suit, and any sum or sums of money as may enable your oratrix to employ counsel to prosecute this suit and to defray the necesary costs and expenses thereof; “(d) That your oratrix may have such other, and further relief as her case may require.” The grounds upon which this' relief was asked were abuse, ill-treatment and abandonment of her by her husband. The defendant answered the bill and denied all the material alie ⁴⁹³ gations as to the grounds of relief therein contained. On the 19th of Hovember, 1917, the husband filed a cross-bill against his wife in which he charged that his wife had abandoned him, and prayed for a divorce a vinculo matrimonii, and the custody and guardianship of said minor children.

The wife answered the cross-bill, and alleged that the separation, of the parties was caused by no fault or misconduct on her part, but that her husband, without just cause, had abandoned her. In both bills the abandonment is. alleged to have occurred on October 4, 1914. The testimony upon both bills was taken in open Court, and the Court on April 16, 1918, passed a decree dismissing the crossr-bill, and further decreed: “(a) That the plaintiff in the original bill, Helen P. Heinmuller, be and she is hereby awarded the sum of fifteen ($15) dollars per week as permanent alimony, said sum to be subject to the further order of this court. “(h) That the infant children mentioned in these proceedings, viz, Carl Heinmuller and Louise Heinmuller, be and they are hereby awarded to the custody of the mother, Helen P. Heinmuller, subject to the further order of this court-. “(c) That Carl Heinmuller pay the sum of fifty ($50) dollars to the solicitor for the plaintiff in the original bill, and to pay unto Helen P. Heinmuller, the plaintiff in the original bill of compláint, the sum of one hundred and thirty-seven dollars and fifty cents ($137.50), being the amount of alimony now in arrears upon the order heretofore passed in these proceedings.”’ It was further ordered that Carl Heinmuller pay the costs of the proceedings. This appeal was taken from that decree.' The evidence fails to show cruelty on the part of the hus-band, and that charge is not pressed in this Court.

Before stating our finding' upon the material and controlling facts, it is well to state the principles of law involved in the ease. ’ The bill of the wife asks for permanent alimony, and this' was awarded her by the decree. ⁴⁹⁴ First. In order to sustain a bill for permanent alimony it Was incumbent upon the plaintiff to allege and prove a state of facts which constitutes a cause of divorce either a vinculo or a mensa. This is the settled law of this State. Outlaw v. Outlaw, 118 Md. 498 ; Polley v. Polley, 128 Md. 60 .

Second. The ground relied on here is abandonment, which we said in Twigg v. Twigg, 107 Md. 676 , “must be the deliberate act of the party complained of, done with the intent that the marriage relations should no longer exist,” and in Matthews v. Matthews, 112 Md. 582 , it was said: “In Gill v. Gill, 93 Md. 654 , this Court re-affirmed the rule laid down in Lynch v. Lynch, 33 Md. 328 , to the effect that abandonment, to constitute ground for a final divorce, must be the deliberate act of the party complained of, done with the intent that the marriage relation should no longer exist, and we there said, and this is in full accord with the best considered cases elsewhere.’ Lynch v. Lynch, 33 Md. 328 ; Gill v. Gill, 93 Md. 654 ; Gregory v. Pierce, 4 Metcalf, 479; Bennett v. Bennett, 43 Conn. 313 .” Mr. Bishop