Herring v. Herring

Marbury, J., delivered the opinion of the Court. The appellant, Donald D. Herring, and the appellee, Margaret Herring, were married on July 25, 1959, in Cheshire, Connecticut, and have one minor child, Donna Herring. The ⁵¹⁷ wife is also the mother of another child, Deborah Fulton, born of a former marriage. On March 15, 1967, the appellee filed a bill of complaint in the Circuit Court for Montgomery County seeking a divorce a mensa et thoro based on the ground of desertion, for alimony, and custody of and support for their child.

The appellant filed an answer on May 11, 1967, denying the alleged desertion and counterclaiming for custody of their minor child, Donna, but not seeking any affirmative relief with respect to the marital union. On April 28, 1967, after holding a hearing at which both parties were present, the lower court ordered the appellant to pay $75.00 per week for the support and maintenance of his wife and child pendente lite. By order dated December 5, 1967, the lower court found that appellant was in arrears in the sum of $1,350.00, adjudged him in contempt, and issued a bench warrant for his arrest. On December 14, 1967, a trial was held on the merits at which appellant was not present, but was represented by his counsel.

In its decree, the lower court granted the appellee a divorce a mensa et thoro; awarded custody of the parties’ child, Donna, to the appellee (with reasonable rights of visitation) ; dismissed appellant’s counterclaim; ordered him to pay appellee $85.00 per week for alimony and support of the minor child, required him to pay a fee of $300.00 to appellee’s counsel; granted appellee a judgment in the amount of $1,350.00; and continued the order of December 5, 1967, adjudging the appellant in contempt of court. This appeal followed. The appellant presents three questions: (1) were the judgments obtained by the appellee pendente lite and finally tainted by misrepresentation of fact such that they are void or voidable; (2) did the lower court abuse its discretion in refusing a continuance of the trial on the merits; and (3) were the support, alimony, and contempt decrees equitable and in conformity with the case law emanating from this Court. In his brief, the appellant urged that “a careful scrutiny of the Bill of Complaint, the pleadings, and other portions of the record reveal a meticulous plan on the part of the Appellee to create a distorted picture of wilful desertion by Appellant, while Appellee and the children were in dire destitute and necessitous circumstances.” Unable to discover such a “plan,” ⁵¹⁸ the lower court granted Mrs. Herring a divorce based upon her testimony which was corroborated by her daughter, Deborah, who resided with the parties at the time of the alleged desertion.

After a “careful scrutiny” of the record we are unable to say that the lower court erred. Appellant maintained that at the time of the April 28, 1967, hearing for pendente lite relief the court was not completely apprised of the true financial status of the appellee and therefore could not issue an equitable monetary order. At this hearing, the appellant testified that his wife had joint bank accounts with her children and that she had funds available upon her own signature of “somewhere between fifteen and twenty thousand [dollars].” However, on cross-examination, Mrs. Herring denied the existence of any such monies, except an educational fund for her daughter Deborah. She listed her assets at approximately $500.00 worth of furniture and an automobile upon which there was a lien.

The chancellor