McBurnie v. McBurnie

Collins, J., delivered the opinion of the Court. This is an appeal by William T. McBurnie, respondent, appellant, from a decree granting a divorce a mensa et thoro to his wife, Dorothy M. McBurnie, complainant, appellee. On April 3, 1956, the complainant filed a bill against her husband alleging that he deserted her without just cause on or about June 21, 1955, that said desertion and abandonment had continued uninterruptedly from that date, and that there was no reasonable hope of reconciliation. She asked that she be divorced a mensa et thoro from the respondent; that she be awarded care and custody of the minor child of the parties, Deborah Ruth McBurnie, age 6; and for other and further relief.

After answer filed by the respondent through his solicitor, testimony was taken before the examiner. The chancellor on January 9, 1957, by decree granted the divorce prayed; awarded the custody and guardianship of the infant to the complainant with right of visitation in the respondent at reasonable times at the home of the complainant; and $60.00 per month for the support and maintenance of the minor child. From that decree the respondent appeals. No printed record extract was filed in this Court.

In his brief the respondent attacks his solicitor. Respondent claims that he elected to rest his case solely upon the complainant’s testimony and that his solicitor took exception to this manner of challenging the suit. However, the solicitor apparently followed the request of his client and no testimony was offered by the respondent. The other matters in his brief consist of the denial of the allegations of the bill and a claim that the testimony offered by the complainant was not ²¹² sufficient to support the decree.

However, there is no recitation in the brief of the testimony in the case. Prior to April 1, 1955, Rule 39, Section 1 (e), Rules of the Court of Appeals, provided in part that the brief of the appellant should contain: “An appendix which, in addition to what is required by Rule 36, shall contain such parts of the record as he desires the Court to read.” In Sunshine Laundry Corp. v. White, 197 Md. 582, 584 , 80 A. 2d 1 , decided April 18, 1951, Chief Judge Marbury said: “When we did away with the necessity of printing the entire record on appeal, we gave ample warning to the Bar in the first case in which the question arose that we would not feel ourselves bound to examine the transcript of record to search for additional matters which had not been printed in the appendix. Strohecker v. Schumacher & Seiler, 185 Md. 144 , 43 A. 2d 208 . We followed that warning by deciding a later case on the opinion of the lower court, and the decree.

Condry v. Laurie, 186 Md. 194 , 46 A. 2d 196 . In another case, appellant printed the testimony in narrative form in the appendix to his brief. The appellee objected to this, and we held that we could not consider the testimony in the narrative form. We declined to reverse the action of the lower court which had directed a verdict for the defendant, or its rulings on evidence, because there was not sufficient printed testimony to enable us to pass upon the questions raised.

Butler v. Reed-Avery Co., 186 Md. 686 , 48 A. 2d 436 . In Foley v. Hoffman, 188 Md. 273, 288 , 52 A. 2d 476, 483 , where one of the questions was the proper