Hilbert v. Hilbert

Shehan, J., delivered the opinion of the Court. This is an appeal from a decree of Circuit Court No. 2 of Baltimore City, granting unto Edna Gernand Hilbert, the appellee, a divorce a mensa et thoro from her husband, George Albert Hilbert. On February 5th, 1934, a bill of complaint was filed by the appellee praying for a divorce a mensa et thoro, and ³⁶⁶ for permanent alimony, alimony pendente lite, and counsel fees, and for an accounting for such personal property, belonging to her, as the defendant has in his actual or constructive possession, and for general relief. Edna Gernand Hilbert and George Albert Hilbert were married October 27th, 1925.

They lived together in Baltimore City until July 15th, 1933, when the complainant left her husband because of alleged cruelties. There were no children born to them, but Mr. Hilbert had a son by a previous marriage, about seventeen years of age, who resided with them. Mrs. Hilbert had been previously married. In her bill of complaint, in substance, the plaintiff alleges that her conduct towards the plaintiff has always been faithful, affectionate, and chaste, and that her entire behavior has been above reproach; that the defendant, with the intention of breaking their marital relations, had, for a long time prior to July 15th, 1933, conducted himself towards the plaintiff in such a manner that she, through fear of bodily harm and physical violence, was forced to leave him, and that this separation occurred on or about July 15th, 1933; and “that among other things the conduct of the defendant towards the pláintiff consisted of threatening and abusive language, threats of physical violence and actual physical violence, to such an extent as to cause the plaintiff to be fearful and apprehensive of her own safety.” She further alleges that the conduct of the defendant towards her constitutes an abandonment and desertion of her by the defendant and is deliberate and final, and the separation of the parties is beyond any reasonable expectation of reconciliation.

There are other allegations in the bill concerning property rights, and a statement of the financial ability of the defendant. In his answer the defendant specifically denies acts of cruelty, undertakes to explain his ownership of the property, and his income; alleges that the plaintiff left him without just cause or provocation. He charges that he has invited his wife to return to him and that she has refused to do so, and on the 17th day of October, 1927, and ³⁶⁷ prior to their marriage, the parties entered into an agreement with respect to their property, providing “that if unhappy differences should arise between the parties resulting in a separation, no claim or demand shall be asserted or attempted to be asserted by either against the other for alimony, counsel fees or the like.” Testimony in the case was taken in open court. On the 24th of September, 1934, a decree was passed granting a divorce a mensa et thoro to Edna Gernand Hilbert from her husband and ordering the defendant to pay her twenty-five dollars per week as alimony.

The property rights and counsel fees were held for further consideration. From said decree, this appeal was taken. The marriage of the parties did not prove to be happy. After the first six or twelve months, serious differences arose between them, and for a number of years these differences became more frequent, culminating into tirades of abuse, and then into acts of cruelty and oppression, in which numerous assaults were made by the defendant upon the plaintiff, extending over a long period, all of which is charged by the complainant and all of which is substantially and satisfactorily corroborated by a number of witnesses.

To review in detail that part of the testimony relating to these numerous assaults, tirades of abuse, and serious difficulties which extended down to the time of a trip to Florida, and after Mr. Hilbert’s return from Florida and Chicago to the time of the actual separation, would serve no good purpose. The facts in this case divide themselves into two classes, those which occurred prior to and during a trip to Florida and to the Century of Progress at Chicago, and those that occurred after Mr. Hilbert’s return to Baltimore from these trips, and down to the time of their separation. There is no testimony in the case as to the actual striking or beating of the complainant between the time of Mr. Hilbert’s return to their home and the time she left him, although there is testimony with corroboration as to his ³⁶⁸ tirades of abuse, violence of conduct, and threats during this period. There is no doubt that the treatment received by Mrs. Hilbert prior to his starting upon his trip to Florida, which lasted some three and a half months, would have justified her in leaving their home and seeking a divorce.

The important questions in this case, which require consideration, arose while Mr. Hilbert was on his trip to Florida and Chicago, and after he had returned home, and before the separation. In this connection there are two questions of importance: First. The effect upon this litigation of the numerous letters of encouragement, hope, and affection written by the complainant to the defendant during his absence in Florida and elsewhere. Second.

Whether the demeanor and actions of the defendant towards the complainant, after he had returned home, taken in connection with all the facts in the case, justified the complainant in leaving him, and bringing this suit. Considering these questions in their order, the record shows that, during Mr. Hilbert’s absence of approximately four months Mrs. Hilbert wrote about thirty-six letters to him. Three and a half months were spent in Florida and about two weeks in Chicago and elsewhere. All of these letters contained many expressions of endearment, hope for their future happiness and welfare together, assurances of helpfulness, and a willingness to make sacrifices upon her part.

In general terms, this describes the character of the numerous and lengthy letters sent to him while he was away from home. The contention is made that such letters are inconsistent with the facts as testified to by Mrs. Hilbert. It is contended by the defendant that no person who had received at the hands of another such brutal and cruel treatment as she claims she had experienced could possibly entertain such feelings of devotion, and give expression to such sentiments, as were contained in her letters, and that the conclusion is that no such cruelties had in fact ever been inflicted upon her. ³⁶⁹ Mrs. Hilbert’s answer to this contention is that she was doing everything in her power to bring about a satisfactory state of affairs in their home when he returned, and to give him all possible encouragement and help to accomplish this. Such was the purport of her testimony.

A question by counsel, and an answer by Mrs. Hilbert, describes this situation fairly and comprehensively: “Q. If Mr. Hilbert treated you in the manner you have described prior to his leaving for Florida why did you write him such perfectly splendid letters as these letters are? A. Before Mr. Hilbert left, for several days he was very, very sweet and kind to me. He begged and pleaded with me to forget, to excuse all the different things he had done; said he would go to Florida and take care of himself, he would not drink; that while he was gone I could look for a little house in the country that I had always wanted; he was going to come back and our lives would be—were going to be what I hoped it would be. So when he left for Florida, I gave him every bit of encouragement that I could possibly give him, and Mr. Sherwood, you yourself know I wanted to take my own money to pay the bills that were outstanding, so he would come back and there would be nothing in the world to upset him.” Corroborating, explaining, and amplifying this testimony, it appears that, shortly before Mr. Hilbert went to Florida, there was a conference held, at which were present Mr. Carman, Mrs. Hilbert’s attorney, Mr. Sherwood, Mr. Hilbert’s attorney, and Mr. and Mrs. Hilbert.

At that conference the situation of the parties, both as to property and as to their domestic relations, was discussed and considered. Mr. Hilbert’s testimony as to the subjects covered at this meeting was at variance to that of Mrs. Hilbert, but he finally admitted, when closely questioned by the chancellor, that their marital relations were considered. Mrs. Hilbert testified that they were discussed, and Mr. Hilbert admitted at that time that he had struck her. This statement upon the part of Mrs. Hilbert was not denied by any one.

Mrs. Hilbert testi ³⁷⁰ fied, “After that conference it was decided on a divorce.” Then Mr. Hilbert begged and pleaded with her not to do this, and he decided to go to Florida, for a rest and vacation. He toid her he would take care of himself and come back and things would be entirely different. To this she seems to have assented, and to aid and encourage him she declares she wrote the letters and hopefully awaited his return, and the fulfillment of his promises. Her conduct seems to have been impelled by a . sincere desire to re-establish their home upon a less pretentious plan, with the renewed purpose of going forward in life in á better and happier course.

This explanation, we. think, is a sufficient answer to the contention of the. defendant, that no person who had been treated so cruelly as Mrs. Hilbert claims to have been treated could have written such letters to the person charged with such cruelty. In the failure of the Park Bank, of which Mr. Hilbert was a director, he had passed through a most severe strain. Mrs. Hilbert recognized this and the letters show a desire to encourage and to be helpful to him, and in that behalf her attitude was commendable, and indicates her desire to live with him and not to be separated from him, and her leaving the home must have been actuated by serious and compelling causes. The law favors condonation and forgiveness, because these are the means by which people may be reunited or deterred from separation and resorting to the courts in cases such as this, and Mrs. Hilbert should not be penalized for doing that which is favored by the law, and the presumption of good faith should be accorded to her.

Fisher v. Fisher, 93 Md. 298, 303 , 48 A. 833 , and cases cited. The second matter, as above indicated, which should have special consideration in this case is the question: Did the conduct of Mr. Hilbert, after his return from Florida and the Century of Progress, justify her in