Jacobs v. Jacobs

Offutt, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Anne Arundel County divorcing the appellee a vinculo matrimonii from the appellant. In reaching the conclusion embodied in the decree, the court found that the appellant, Anna Weiner Jacobs, had abandoned the appellee, Joseph Hoffman Jacobs; that the abandonment had continued uninterruptedly for three years; that it was deliberate and final; and that the separation of the parties was beyond any reasonable expectation of reconciliation. Code, art. 16, sec. 38.

The question presented is whether the evidence supports those findings. ⁴⁰⁷ The parties were married in Baltimore City on May 26th, 1901. There are two children of the marriage, Benedict W., the elder, aged thirty-three years, and Elmer H., the younger, aged thirty. The parties lived together, with occasional interruptions, until the autumn of 1930, when they separated, Mrs. Jacobs remaining in the home which they then occupied in Baltimore City, Jacobs removing to Crestón Park, in Anne Arundel County, where he operates a chicken farm. Jacobs filed the bill in this case on August 2nd, 1935, to secure a divorce a vinculo matrimonii from the defendant, alleging statutory abandonment as ground for that relief.

He also alleged that the defendant and their two sons were about to take possession of his Anne Arundel County property, “besides creating a good deal of disturbance,” and that on several occasions the two sons had severely beaten him. Mrs. Jacobs in her answer categorically denied those allegations, and affirmatively alleged that she had made repeated attempts to effect a reconciliation, but that the plaintiff had not only refused to consider that, but had refused even to talk with her, and that she was without resources or means of support other than an allowance of ten dollars per week from the plaintiff. Jacobs’ contention is that, prior to the separation, the conduct of his wife and their two sons towards him was insulting and abusive; that at times they attacked him physically; that on the evening preceding his leaving the Baltimore City home, September 25th, 1930, he and his wife quarreled over a request by him that she sign a paper guaranteeing his note for $75,000; that they nagged him until he left his bed and stated that he was going to Crestón Park; that his wife and youngest son “jumped” on him; that in the struggle they “hurt him a plenty and sat on me and I struggled”; that the struggle lasted for probably two hours; that in the course of it the oldest boy came in and said, “ * * * Let me fix him, I will fix him,” but they motioned him away; that he then fell asleep and the next morning he left the home and went to Crestón Park where he has since remained; that he ⁴⁰⁸ invited his wife to join him at Crestón Park on the condition that the sons should not live with them; that he had in good faith attempted a reconciliation which his wife had refused; and that while she offered to resume their marital relations, the offers were not made in good faith. , Mrs. Jacobs’ contention is that her husband is highly excitable, nervous, irritable, and emotional; that the incident did not occur as he described it; that what occurred was that she had already signed one paper guaranteeing the note, and when he, on October 25th, asked her to sign another, telling her that it was the same thing as the first paper she had signed, she asked him, why, if it was the same thing, it was necessary for her to sign another; that he then fell into a tantrum, became very angry, threw himself on the floor, beat his head with his fists, kicked his feet against the floor; that they placed him in his bed; that he then threatened to kill himself with a lamp cord; that she and Elmer sat beside him; that she said, “If you are going to go on about this I will sign the note”; that when he became calmer they left him; that the next morning, when he came down, she asked him if he would not have breakfast; that he answered, “No, indeed,” and walked out; that later he called up and said to her, “If those boys dare to come down the country I will have them arrested”; that after that she mlade repeated efforts to effect a reconciliation, but that he not only refused to consider that, but declined even to see or talk to her. The plaintiff in a suit instituted for the purpose of obtaining a divorce assumes the burden, ordinarily borne by plaintiffs in other proceedings, of proving facts necessary to justify the relief sought (Wigmore on Evidence, secs. 2483-2488; 19 C. J. 125 et seq.), and in this state that burden can never be met by the uncorroborated testimony of the plaintiff (Code art. 35, sec. 4; Tomkey v. Tomkey, 130 Md. 292 , 100 A. 283 ).

It was therefore incumbent upon Jacobs to prove, by some evidence in addition to his own testimony, the facts upon which he ⁴⁰⁹ relied for relief, to enable the court to weigh his testimony at all. Tomkey v. Tomkey, supra. Those facts were: (1) That the appellant had abandoned him; (2) that the abandonment had continued uninterruptedly for three years; (3) that it was deliberate and final; and (4) that the separation was beyond any reasonable hope of reconciliation. If he failed to furnish the kind and quantity of proof which the law requires of those facts, he failed to prove his case and the trial court was bound to dismiss his bill, whether his own testimony was believed or not.

In other words, his own testimony, unless corroborated, proved nothing. The corroboration required varies with the circumstances of particular cases, and as the danger of collusion, which is the evil at which the statute is directed, increases or diminishes, in the same ratio the rule prescribed by the statute is applied with greater or less strictness (Appel v. Appel, 162 Md. 5 , 158 A. 65 ), but under no circumstances may it be dispensed with altogether (Tomkey v. Tomkey, supra; Twigg v. Twigg, 107 Md. 676 , 69 A. 517 ; 19 C. J. 133; Garrett v. Garrett, 86 N. J. Eq. 293, 98 A. 848 ; 9 R. C. L. 435). While the corroboration must extend to every element necessary to justify the relief sought (Garrett v. Garrett, supra; 9 R. C. L. 436), it need not in itself be sufficient to warrant that relief (9 R. C. L. 435), nor need it go to every particular statement found in the plaintiff’s testimony, but it is sufficient if it lends substantial support to his testimony as to material and controlling facts (19 C. J. 134). The evidence relating to abandonment may be considered under two heads, one, whether Jacobs’ action in leaving his home in Baltimore City, in September or October, 1930, was justified by°the conduct of his wife and sons, the other whether after that separation its continuation was due to his fault or the fault of his wife.

Dealing with those two questions in their order, there is literally no evidence of any kind to support Jacobs’ version of the circumstances under which he left his home in the fall of 1930. Moreover, apart from the lack of ⁴¹⁰ corroboration, Jacobs’ description of the happenings of the night preceding the separation tends to support his wife’s statement of what took place. He testified: “That your wife and son threw you on the floor? A. No, they threw me down on the bed and sat on me.

Did you not get down on the floor that night yourself and rap your head and kick your feet? A. No, I was not on the floor at any time. * * * You finally went to sleep while they were holding you ? A. I don’t think I can tell you the exact scene that happened. I know I fell asleep and they .let up on me.

I want to know whether you fell asleep while they were holding you or whether you were free when you went to sleep ? A. I have heard the story of the man with a beard going to sleep but whether he slept with the beard under the cover or over the cover I don’t think it makes any difference. 1 don’t remember. It occurs to me that you testified that your wife was quite bulky and heavy and possibly that would have a tendency to keep you awake ? A. No doubt it would.

Can you say whether your wife was sitting on you when you went to sleep or not? A. I know she sat on me while I was in bed and while I dozed off she got off me; that would be twilight.” The testimony of Mrs. Jacobs and their two sons that Jacobs was nervous, excited, that he threatened suicide, and that they tried to calm him, is inherently more credible than that he went to sleep while his wife was sitting on 'him. Turning to the second question, it may be said that it is consistent with both common sense and law that, if Jacobs’ two adult sons treated him as he stated in his testimony, and that his wife insisted nevertheless that they remain in the household, his abandonment of it was justified. The husband, who supports and maintains the home, is regarded as the head of the family, and may within reasonable limits determine who shall reside in, or even visit it (30 C. L. 510; Crouch v. Crouch, 150 Md. 608 , 133 A. 725 ), and even if it be assumed that the conduct of the sons towards him was all that it should' have been, nevertheless 'he had the right to insist that they ⁴¹¹ live apart from him and his wife.

On the other hand, his wife had no right to demand that they be permitted to continue to live with her in her husband’s home as a condition to her continuing to live with her husband. That they did live there is undisputed, but apart from a statement by Jacobs that on one occasion he had said to his wife that Elmer must leave the home or he would, and that she replied (in May, 1930) “You leave the place, you get out of here,” the evidence does not show that prior to the separation he requested his sons to leave the home, or that his wife insisted that they remain. He did leave his wife in May, 1930, and later filed a bill for divorce against her, but he dismissed it, and they resumed cohabitation. One of the sons, Elmer, testified that he and his brother were willing to leave the home at any time, and Mrs. Jacobs that she was willing to live with her husband apart from the two sons.

That the sons were in the home with his consent as late as 1930 appears from the fact that he made one of them, Elmer, a partner in the chicken business, and the other, Benedict, secretary of the corporation which operated it, although, while they were all in that business and living on the place, in 1930, he applied for an injunction to restrain Benedict from coming on it. Nor is his testimony that the sons had abused, insulted, and physically maltreated him at all convincing. The only testimony supporting it is that of a neighbor, Arthur D. Schuster, who said that on one occasion Benedict, called “Dick,” was operating a motorboat in which the witness and Jacobs were riding; that Jacobs warned his son that he would ground the boat; and that the son “swore” at his father. On the other hand, Mrs. Schuster, who was an occasional visitor at the Jacobs home, said that the father and sons “got along” perfectly; that she never saw anything “but harmony”; another witness said that she had seen the father attempt to strike “Dick,” but had never seen the sons attempt to strike the father.

Mrs. Miller, who had been employed on the place for seven years and was there in 1930, said that the sons were ⁴¹² “always nice to their parents * * * never talked out of the way.” Elizabeth Hall, who worked in the home for two years and a half preceding the summer of 1928, testified that the sons were “always nice” to their father; the two sons testified that they had always behaved respectfully to him, although one of them, “Dick,” testified his father’s attitude towards him was harsh and dictatorial. Mrs. Atherton, another neighbor, testified that the attitude of the sons to their father had always been kind and considerate, and that she had “never heard anything else,” and Mrs. Mildred Gibbs, a daughter of Mrs. Atherton, said: “They were the most obedient boys I have ever come in contact with; they took things from their father that no other boy I know of would stand, for they were most obedient boys; their father bosses them around like little puppy dogs for this and for that; come here Elmer, go there; their father would do; that they were obedient; I never saw many more obedient boys in my life. What was the father’s attitude towards his sons? A. Very domineering and he was a man who demanded lots of attention; he demanded that the boys step around for him and obey him.

Q. You have known them and have associated with them for over a period of thirteen years? A. That is right, thirteen years.” That evidence was not sufficient to show that Mrs. Jacobs herself was guilty of any improper conduct towards her husband, that she condoned disrespectful or improper conduct on the part of their two sons towards him, that the two sons would not have left the home had he requested them to do so, or that had they left she would not have continued to live with him. It was therefore not sufficient to prove that he was justified in leaving her. But it is suggested, first, that her conduct after the separation was so cruel and manifested such hostility towards him that it tended to corroborate his testimony that he left the home because she and the two sons made it impossible for him to live there in peace, comfort, or security, and indeed without a complete loss of self-respect; second, that the findings of fact of the chancellor should not be disturbed in the absence of manifest error. ⁴¹³ Dealing with those questions in inverse order, it may first be said that the chancellor is not a witness, his function is to weigh evidence, not to furnish it, and his findings have the force of the evidence upon which they rest, no more, no less.

On appeal, there is no presumption of law in favor of his conclusions which must be overcome; the case is determined upon the evidence which was before him. Where that evidence was taken orally in open court, there is always an inference that, because of the opportunity afforded him of observing the appearance and demeanor of the witnesses as they testified, he was in a better position to pass upon their relative credibility than an appellate court, which is limited to considering the bare printed record of their testimony. So where the case turns on credibility, and there is doubt, weight is naturally given to the fact that the chancellor who decided the case heard and saw the witnesses, and was therefore better able to decide the relative credibility of their testimony than the appellate court. Such an inference, however, can never be accepted as a substitute for actual testimony.

The appellee suggests that the “findings of fact of an equity judge who has seen and heard the witnesses will not be disturbed unless the evidence clearly demonstrates error.” That statement of the rule, if “demonstrate” is used to mean “to prove beyond the possibility of doubt,” goes much too far, while if it is used to mean merely “to point out or indicate,” it is not particularly helpful, because in every appeal from a court of superior jurisdiction it is necessary for the appellant to point out that the trial court erred. 4 C. J. 731; Schultze v. State, 43 Md. 295 . A very clear and satisfactory statement of the rule is found in Bortner v. Leib, 146 Md. 530, 546 , 126 A. 890, 896 , where it is said: “The testimony was taken in open court, where the judge had an opportunity to see the witnesses, to hear their evidence fresh from their lips, and to observe their expression and demeanor, so that, in weighing the testimony and