Hoffhines v. Hoffhines

³⁵¹ Digges, J., delivered the opinion of the Court. The appellant and appellee in this case are husband and wife. They were married September 23, 1922, in the eity of Baltimore. After the marriage they went to live with the husband’s parents at 109 Beechwood Avenue, Catons-ville, Md., .and remained there for about two months, until the latter part of November, 1922.

On November 28th, 1922, they moved to and occupied a small three-room apartment at- No. 811 North Charles Street, Baltimore, Md., said apartment having been leased for four months. On April 5, 1923, the appellee left the Charles Street apartment and went to live at her mother’s home, No. 3118 Baker Street, Baltimore, and since that time they have not lived together as man and wife. On August 2nd, 1923, the appellee filed in Circuit Court No. 2 of Baltimore City her bill of complaint against her husband alleging abandonment and desertion, and praying for alimony, both pendente Hie and permanent, counsel fees and costs. Appellant answered the bill of complaint by denying its allegations as to desertion and abandonment and, on the same day, August 20th, 1923, filed his cross-bill, in which the cause of complaint is stated to be that the appellee without just cause, reason, or provocation therefor, abandoned and deserted him; and the prayer of the cross-bill is for a decree of divorce a mensa et thoro on that ground.

By her answer the appellee denied the material averments of the crossr-bill and asserted that the conduct of the appellant was the cause of their separation and their ceasing to. live together. Testimony was taken on behalf of the parties in support of their respective contentions, in open court. On November 2, 1923, the chancellor passed the following decree: “This cause, standing for hearing and having been submitted, the counsel for the parties were heard and the proceedings read and considered: “It is thereupon, this 2nd day of November, 1923, by the Circuit Court No. 2 of Baltimore City, adjudged, ordered ³⁵² and decreed, that the bill of complaint of Katherine S. Hoff-hines, for alimony, is sustained; and that the defendant, Arthur R Hoffhines, shall pay to the complainant, Katherine S. Hoffhines, as alimony, the sum of forty dollar’s ($40.00) for the period from October 3, 1923, to November 3, 1923; and the further sum of seven dollars ($7.00) per week beginning November 3, 1923, and until the further order of this court. “And it is further adjudged, ordered and decreed, that the cross-bill of Arthur K. Hoffhines vs. Katherine S. Hoff-hines, for a divorce a mema, et thoro, be and the same is hereby dismissed. “And it is further adjudged, ordered and decreed, that the defendant, Arthur K. Hoffhines, shall pay to the complainant, Katherine S. Hoffhines, the sum of. twenty-five dollars ($25.00) as a counsel fee for services of counsel in defending the proceedings in this court on the moss-bill filed herein by the said defendant. “And it is further adjudged, ordered and decreed, that the defendant, Arthur K. Hoffhines, shall pay the court costs in this proceeding.” From this decree the husband, Arthur R Hoffhines, has appealed. To entitle a wife to a decree of permanent alimony, such facts must be alleged and .proved as would entitle her to a decree of divorce either a vinculo matrimonii or a mensa et thoro.

Wallingsford v. Wallingsford, 6 H. & J. 485 ; Dumnock v. Dumnock, 3 Md. Ch. 146 ; Outlaw v. Outlaw, 118 Md. 503 ; Polley v. Polley, 128 Md. 62 . In this case the alleged cause for divorce is the abandonment and desertion of the appellee by her husband, as stated in her bill of complaint. It is admitted that the physical separation was the .act of the wife, but it is contended that the conduct of the husband toward the wife, and his treatment of her, constituted legal justification for the appellee’s ceasing to live with him, and therefore the acts of legal abandonment and desertion were those of the appellant. ³⁵³ It requires no citation of authority to support the legal proposition that it is abandonment and desertion by the husband for him, without just cause, to treat his wife in such manner as to compel her to leave him. Harding v. Harding, 22 Md. 337 ; Levering v. Levering, 16 Md. 213 ; Taylor v. Taylor, 108 Md. 129 ; Polley v. Polley, supra.

The evidence in this case, while in some instances conflicting, is in the main uncontradicted, .and shows that the parties had known each other for several years before their marriage, both being employed by the Standard Oil Company at its Baltimore brando; that immediately after the marriage they had lived at the home of the husband’s parents, the understanding apparently being that they would try this arrangement, and if found satisfactory, they would remain, and if not, they would secure a home for themselves at some place in the City of Baltimore; that almost from the beginning of their residence with the husband’s family there was evident friction, the wife telling her husband that while they were supposed to be boarding at his parents’ home, she was, in fact, compelled to help with all the work of the household, including' the washing and ironing; that she could do her own work but did not feel that she should have to assist in the work of the family, that she had no freedom of action, could not go .anywhere, but had to clo> just as his people said; her husband agreed it would be better for them both to move in town and live by themselves; that they moved into the Charles Street apartment on November 28, 1922, they both having decided upon that location; that the lease of the apartment was for a period of four months and that the rent- was $32.50 per month; that the husband was earning $125 per month, from the date of their marriage to the time of separation ; $25 each month was allowed to be retained by the company by which he was employed, in accordance with a stock-purchasing plan which that company then had with its employees; that during the period they lived together, in addition to the cooking and general housework incident to the family, the wife had temporary employment, and from ³⁵⁴ November, 1922, to April, 1923, sbe earned the sum of $300, $200 of which was expended in the maintenance of the home; that the husband had a life insurance policy at the time of the marriage, by the terms of which his mother was the beneficiary; that some time in December, 1922, he was requested by his wife, the appellee, to change this policy so as to make her the beneficiary in place of his mother, which request was refused; that shortly before the expiration of the lease on the Charles Street apartment the appellant told his wife that he was not going to' renew the lease because he could not afford it, and that they would have to return to Ms mother’s to' live, and told the landlady that he had given up the apartment and that she could show any prospective tenants to the apartment for the purpose of renting it to other parties; that during the period the appellee was employed her husband furnished very little for the support of the family; that the appellant repeatedly told his wife that they would have to return to his mother’s to live and this conversation on one occasion occurred in the presence of the appellee’s mother; that the appellee in reply told her husband that she was perfectly willing to live in one room by themselves but Would not return to his parents’ home. With these conditions existing, the appellee, on April 5th, 1923, while her husband was at the office of his employer, left .the Charles Street apartment, taking with her the articles of furniture belonging; to herself, and removed to the home of her mother on Baker Street; that upon the husband’s return to the apartment on the evening of April 5, 1923, and finding his wife away, he made no effort to inquire as to her whereabouts but went to the home of his parents and remained there after that date, never making any effort to see his wife or induce her to return; that on April 19th, 1923, the appellee wrote her husband the following letter: “3118 Baker St., Balto., Md. “April 19, 1923. “Dear Arthur: As I repeatedly stated to you, I was and am perfectly willing to live with you as we should, ³⁵⁵ as man and wife, provided you provide a suitable place for me to live and trust me properly as your wife. “I am willing to live with you any place that you provide, no matter how humble it be, but positively will not live with you at the home of your parents, as you know that was objectionable when we lived there when first married, and I am sure that conditions have not improved. If you do not provide a home for me as you should, then you must, as my husband, provide for me and send me an allowance each and every week. “I expect to hear from you at once as to just what you propose doing, either a home where we can live as we should as man and wife, or assistance in the way of support to me, as your wife. “Your wife, “Katherine Sanford Hoffhines.” On April 20, 1923, the appellant replied to this letter as follows: “109 Beechwood Ave., Catonsville, Md., “April 20, 1923. “Hear Katherine: I am in receipt of your letter of the 19th inst., and have carefully noted your proposition contained therein, i. your willingness to live any place, no matter how humble. “It is utterly impossible at the present time for me to provide any place other than at my home. My mother joins me in this invitation. “Yours very truly, “A. K. Hoffhines.” This letter of the husband’s was immediately replied to by the appellee as follows: “31.18 Baker St., Balto., Md. April 21, 1923. “Dear Arthur: Your letter of the 20th inst. in reply to mine of the 19th received.

You should have known before you asked me to marry you whether or not you could support me. ³⁵⁶ “As I stated in my letter, I will not live at your mother’s borne, because that is most objectionable, and is not our borne. As you continue to fail to provide a borne for me, I understand that you must, provide me with the necessities of life as your wife, and I shall expect you to send me a sufficient amount to live and clothe myself on at once, and regularly each week hereafter. “Should I not have a favorable reply to this letter, then I will know that I must