Hubbard v. Hubbard

Dissenting opinion of Pattison and Urner, JJ.: As we understand the testimony in this case, it shows that the appellee’s conduct was directly responsible for the separation which is the ground of his wife’s suit for alimony. It is proven that he deliberately left the appellant because he was unwilling to comply with the condition she imposed that he dismiss from his service the bookkeeper, Miss Mitqhell, ⁶²³ whose association with him had been the long-existing cause of the marital infelicity which the record discloses. While we concur in the view, expressed in the Court’s opinion, that the charge of adultery was not sustained by the evidence, yet we think the proof reveals a degree of familiarity in the relations between the appellee and Miss Mitchell which might well excite the wife’s distrust. On a previous occasion, in December, 1913, the appellant left her husband and filed a bill for divorce on the ground of his alleged adultery with the person just named.

In the following April the parties became reconciled and reunited upon the distinct and positive promise by the appellee that he would within a few weeks permanently dismiss from his employment the woman whose retention had caused his wife so much unhappiness. When the reunion had continued about a week, the appellee informed his wife that he intended to employ Miss Mitchell as his bookkeeper for another year. According to the testimony of a disinterested witness, who was present at the interview, the appellee, in reply to his wife’s protest against the violation of his agreement not to keep Miss Mitchell in his service, said, in substance, that he had only come back to live with the appellant for a time in order to destroy her case under the bill she had filed against him, adding, with an oath, that now she would not get a cent, and stating that he would take his clothes and go to his mother’s. This was followed by the separation which is the occasion of the present suit.

The appellant has testified to her willingness to have her husband return to her at any time if he will sever his relations with Miss Mitchell, but with that condition he absolutely refuses to comply. The very persistency with which he continues such an association, in preference to the marital reunion to which it is the only obstacle, tends strongly to confirm his wife’s suspicions and to justify her attitude. In our judgment she is entitled to alimony under the circumstances of the case as developed by the testimony, and we have, therefore, been unable to concur in the decision to the contrary. Constable, J., delivered the opinion of the Court.

The appellant filed a bill against her husband asking for alimony, permanent and pendente lite, and counsel fees, but subsequently amended the bill by adding a prayer for a divorce a mensa et thoro. The bill alleged as the grounds for relief, that the appellee had been guilty of audultery with one Pearl S. Mitchell in January, 1905, and before the filing of the bill, and that the appellant had not cohabited with him since the discovery; and that the appellee abandoned and deserted her without just cause or excuse. After hearing testimony in support of the bill and answer the lower Court passed a decree dismissing the bill, and from that decree this appeal was taken. It is presumed the allegation charging adultery was inserted for whatever effect it might have upon the question of alimony, the relief sought before the amendment; for that charge, if proved, could not be the basis for a decree of divorce a mensa et thoro but only for a divorce a vinculo matrimonii.

Stewart v. Stewart, 105 Md. 297 . The testimony taken in support of this allegation, however, will be considered in whatever manner it bears upon the question of desertion. We do not intend to reproduce a detailed account of the testimony, for no good purpose would be subserved by so doing, but to give, in the main, the conclusions we have arrived at from a careful reading of the same. The parties were married in 1891, and have lived in Baltimore continu ⁶¹⁹ ously since, where the appellee has been engaged, in the business of oyster packing.

In 1903 he took into his employment as bookkeeper, Pearl S. Mitchell, a young woman whose home was in Harford County. The oyster packing business was carried on in each year, from about the first of August until the first of the following May, when the business would be closed and Pearl Mitchell would return to her home, returning to work the following August. During the first few years of her employment Miss Mitchell visited a great deal at the home of the appellee, and was apparently upon terms of intimacy with the appellant. It was during one of these visits in 1906 that the only adulterous act is attempted to be proved and it is remarkable that the only testimony offered to prove it was that of the only child of the parties, a boy of about fourteen years of age at the time of the alleged occurrence.

Notwithstanding the fact that the son testified that the appellant was present and saw just what he did yet not one word of testimony did she give upon the subject. The explanation of the occurrence given by Miss Mitchell, when called as a witness by the appellant, was convincing. The testimony of the only other two witnesses as to this charge was trivial and what they each observed once, occurred years ago. It was admitted by the appellant that she had as late as the year 1910 visited for several days at different times Miss Mitchell at her home in Harford County.

If we were considering this testimony with a mew to determining whether the charge was legally established so as to be the basis of a decree a- vinculo we would not have to- dismiss it because it did not measure up to the strict rule of proof required in cases of this character, as determined by a long line of cases in this State ending with Thiess v. Thiess, 124 Md. 292 , but would not hesitate to pronounce the charge unfounded, from anything that appears in the record. The parties continued to live together