Howell v. Howell

Adkins, J., delivered the opinion of the Court. The bill of complaint filed in this case by appellee on April 20th, 1933, alleged the marriage of the plaintiff and defendant on January 18th, 1930, in Richmond, Virginia; that the parties are residents of Baltimore; that they have one child; that the conduct of plaintiff has been proper; that the defendant on or about March étk, 1933, deserted and abandoned the plaintiff without just cause; and has since refused to live with her or to' permit her and their infant child to live with him; that the plaintiff is without means of support for herself and child; and that the defendant has an income of about fifty-three dollars per week. The prayer of the bill is (a) for permanent alimony; (b) for alimony pendente lite, counsel fees and expenses of suit. The answer admits the'marriage and residence; denies that defendant is the father of the child; avers that the child was born out of wedlock, and conceived at a time when it was impossible for defendant to have had access to the plaintiff; that, at the time of the conception of said child, the plaintiff was the wife of another man; that plaintiff falsely represented herself to defendant as a single woman, and stated in her application for the marriage license that she was a single woman, and not a divorced woman; that defendant has only recently learned that plaintiff was married to another man ⁵³³ at the time of the conception of said child, by whom she had another child, now dead, and from whom, defendant is advised, plaintiff was divorced prior to her marriage to defendant; defendant denies that plaintiff was always kind and faithful to him or that he abandoned her without canse and refused to live with her and the child, hut asserts that she abandoned and deserted him; defendant further avers that he has for some time been employed by the Consolidated Gas, Electric Light & Power Company of Baltimore; that in August, 1930, while in the performance of his duty as such' employee, he met with an accident, -with the result that he lost his right arm and left leg; that since that time he has required the assistance of his wife in dressing and in eating; that he purchased and furnished a house in Baltimore as a home for himself and family; that in January, 1933, the plaintiff, while on a trip to Richmond with defendant, without any reason whatsoever, fired five shots from a revolver at- defendant, declaring her intention of killing him, and thereafter willfully deserted him, taking with her said child,, and going to the State of North Carolina, where she remained for six weeks, and then returned to Baltimore with the-avowed purpose of obtaining defendant’s money, and, failing, had him summoned to the Criminal Court of Baltimore City; that after said desertion by his wife he returned to- his home, and continued to live alone in his helpless condition until he was couvincod that plaintiff would not- return, when he disposed of said house, stored his furniture, and went to a hoarding house to live where lie could secure the assistance he needed; that since plaintiff’s- return to Baltimore-defendant has invited her to come hack and live with him,, which she refused to do> unless he would purchase new furniture and household furnishings in place of those in storage;, that throughout the period of separation defendant has each week sent plaintiff five dollars for the support and maintenance of her child.

He admits that he has an income- of fifty-three dollars per week, which includes eighteen dollars, a week compensation for his injury, but avers that because of ⁵³⁴ Ms helpless condition it is necessary for him to pay for assistance rendered him in addition to the amount'he pays for board and lodging. On May 23rd, 1933, defendant filed a cross-bill alleging that his- wife was guilty of adultery with one Vincent Ohiaramonte, “and with divers other persons whose names to your orator are at this time unknown,” and prays for an absolute divorce. On May 25th, 1933, plaintiff answered denying the charge of adultery; admitting that no children were born after her marriage, but averring that one child was bom to them prior,to their marriage, the parenthood of which he has never before denied, and which child he has always acknowledged as his own. The answer further avers that while the crossrplaintiff has refused to live with her since she returned from her home in North Carolina in March, he has on various occasions cohabited with her.

The abandonment of the wife (the plaintiff), by her husr band, we think is satisfactorily established. Whoever may have been in fault in the separation from January 14th, 1933, to March 4th, 1933, during which time she was at the home of her father in North Carolina, we think it is abundantly proved that, on her return to Baltimore, she sought reconciliation with her husband and was anxious to return to> Mm, and that he persistently declined to reconsider, although it seems to be reasonably clear from the testimony that he had sexual intercourse with her on several occasions while they were living apart. The defendant contends that her offer to return was conditional upon his buying new furniture, but this is denied by the wife, who testified she would be glad to live with him if he would treat her right. Several other witnesses testified to> her efforts at reconciliation, including the general manager of the gas and electric company, defendant’s employer.

This witness, Kenneth M. Jones, testified that while plaintiff was in North Carolina a telegram came to the office from her addressed to defendant, which witness read by mistake; in which she was appealing to her husband to send her money to' bring the baby back home. “I went to ⁵³⁵ see him and I told him I thought he was treating his wife a little hit shady and he should support the child and send her' the money to come hack here on”; that some days later she came to the office. “She said, ‘Mr. Jones, my husband would not send me money to come home on and my father has given me the money and 1 want you to see if yon can’t persuade him to take care of me and the child.’ She said ‘Don't do anything that would cause him to lose his job.’ * * * I arranged with Mr. Howell and Mrs. Howell to come to the office, and 1 told Howell to' go hack with his wife, and he said, ‘Ho, under no conditions would he live with her.’ He said, ‘No, you go to North Carolina and I will send you about five dollars a week.’ This happened two months ago.” The testimony of defendant and his brother Clyde, as to the firing of a revolver by the plaintiff on the visit to Richmond just before she went to North Carolina, is not convincing. Plaintiff denies that any shots were .fired. Her ■version of the occurrence is that she “was so upset because he (her husband) bad told her he was going to send me away and he did not want to live with me any more, and I really loved him and J still love him, and I knew he had a gun in the machine, so I said, ‘all right, if you don’t want me, I will end it all,’ and I just wanted to set;- if he really cared for me and wanted to take mo back.” “Q. You made believe you were going to shoot yourself. A. Yes, sir; I didn’t say anything about shooting him.

Q. Did he take the gun away. A. No, lie did not take the gun away, he said, ‘well, give me the gun,’ so I handed him the gun.” Another witness testified as to a conversation she had with defendant two weeks after the incident. “He came to my house and was talking about having such trouble getting rid of her, and he said in his brother’s home in Richmond she came in the house with a gun. I says, ‘Did she shoot at you’. He said, ‘Hell, no, I and Clyde threw lier down and taken the gun away from her’, * * * he did not say she threatened him.

He just said she went out and came in with the gun.” ⁵³⁶ It does not appear from the record that in the conversation with Mr. Jones, in which defendant said he would not live with his wife, this alleged shooting incident was mentioned, or any fear of her intimated. And defendant’s testimony that “I am scared to' live with her,” is not consistent with his testimony that he wanted her to return to him. Indeed his testimony as to this incident sounds unreal. Nothing like that ever occurred before, and there is no evidence that she had ever been violent or ill tempered, and according to his story there was nothing to incite her to anger on that occasion.

He drove her and the baby to Eichmond to visit his mother, who' lives with his brother. They arrived there about 8 p’. m. and called up his brother. “He asked me to go to the plant, I said, ‘I will go with you for an hour or so’, or something like that. She told me, she said, ‘you aren’t leaving this house tonight,’ I said, ‘I am leaving here, I am going to the plant with my brother.’ She said, ‘If you leave here tonight I will kill you’. I thought she was joking.

I said, ‘I am going to the plant with him tonight.’ So hesand I started to get our coats and hats to gu out. I was in the living room, and I told my brother to go right out, and I did not pay any attention, but she went out the door. She went to' the car and my brother went to the door. * * * She ■came in the door and just as she came in the door, she said, ‘You-, I am going to kill you,’ and she started shooting at me.” He further testified that his brother took the pistol away from her; that she said she was going home to stay; that he gave her money to pay her fare on the next train to her father’s home in North Carolina. He does, not give the slightest hint of anything occurring in the course of the' drive to stir up such an outburst.

The wife’s story is much more consistent with all that preceded and followed the occurrence. If the wife was at fault in leaving her husband for so long a time, yet if she repented and offered in good faith to return, and her offer was refused, this constituted desertion by the husband. McClees v. McClees, 162 Md. 70 , 158 A. 349 , and authorities there cited. ⁵³⁷ We think the weight of the evidence is in her favor and that she is entitled to separate maintenance, unless she has been guilty of adultery, as charged in the cross-bill. To sustain this charge the defendant produced four witnesses, all of whom swore they had had sexual intercourse with the plaintiff.

Two of them had been convicted of burglary. The co-respondent named in the cross-bill, Vincent Ohiaramonte, was summoned to testify for defendant, and was said by defendant to have been in the court all the morning, but to have disappeared before he was called to testify. Apparently no one was able to find him, although an attachment was issued for him by the chancellor. Asked what he knew about anybody committing adultery with his wife, the defendant said: “Well a friend of mine — we were down in a saloon by the Belair Market, and he and I were drinking some beer, and this fellow was