McClees v. McClees

Digges, J., delivered the opinion of the Court. The bill in this case was filed by the wife, alleging cruelty and desertion on the part of her husband, the appellee, and praying for a divorce a mensa et thoro, alimony pendente lite and permanent, and counsel fees. Pending the litigation in the lower court, the chancellor made an allowance of alimony to the wife of $50 a week. The case was heard in open court, and resulted in a decree, dated June 18th, 1930, wherein two things were ordered: First, the divorce was denied and the wife’s bill dismissed; second, the husband was required to pay a fee of $1,500 to the wife’s counsel for services in the lower court.

There are four appeals in one record. The appeal in No. 57 is by the wife from that part of the decree dismissing her bill. The husband appealed from that part of the decree allowing the $1,500 counsel fee; that appeal is No. 59. On the same day that the decree was passed, on petition of the wife, the court ordered the payment of $25 per week as alimony pending the appeal, and a $500 fee to her counsel for services in this court.

The wife appealed from this order, contending that the alimony and counsel fee were not sufficient in amount; and this is the subject of the appeal in No. 58. The husband also appealed from that order, contending that, the lower court having denied the divorce, there should be no allowance of alimony’- pending the. appeal, nor ¹¹⁷ allowance of counsel fee in this court. This is the subject of the appeal in Mo. 60. The wife will be referred to herein as the appellant, and the husband as the appellee.

The marriage of the parties took place in Baltimore on August 1st, 1928. It was not the first matrimonial venture of either of the parties. The husband is fifty-two years of age; and his previous marriage resulted in his having three children, a daughter and two sons., who at the time of the trial were aged eighteen, sixteen, and thirteen years respectively. Their mother and father were married January 26th, 1910, and the mother died May lYth, 1924.

On May 21st, 1924, Dr. McClees’ father died, and his mother went to the appellee’s home, 2929 Month Oharles. Street, taking charge of the home and the children. The appellant is forty-two years of age, and had been married twice before her marriage to Dr. McOlees. Erom each of her former husbands she obtained a divorce, and from her second husband a, settlement in the way of alimony amounting to about $11,000.

The parties had known each other since about 1901. About eighteen months prior to the marriage, Dr. McClees began paying attention to the appellant, with the object of matrimony. During that period the appellant had met Dr. McOlees’ mother and children, who were living in his home: and she was fully aware of the fact that she was expected to occupy his home with them. Dr. McOlees was the sole support of his mother, who was over seventy-five years of age.

His profession is dentistry, his offices being-away from his home, and he appears to have had a lucrative practice. The home on Morth Oharles Street is the property of the appellee, a large three-story house, with three rooms on the third floor. The home was nicely furnished, and the doctor employed several servants, cook, chambermaid, and man who attended to the furnace. At the office he had several assistants, including two young ladies as. secretaries, and also two janitors.

Before the wedding, the parties had, agreed on some alterations, repairs, and improvements which were to be made in the home, especially in respect to the? ¹¹⁸ third floor, which entire floor was designed to be the apartment of the husband and wife, this selection being made by the appellant. They had also agreed upon the route of the trip to be taken after their marriage, including Mew York, from which point they were to go by ship, stopping at Havana, to Vera Cruz, and then on through Mexico. This trip was to last for approximately a month. The arrangements as to the trip were carried orrt.

The wedding was .attended by relatives and friends of both parties, although the children were not present, they being at that time with their maternal grandparents in Cambridge, Md. They returned from their wedding trip to Baltimore the last of August or the first of September, 1928, and took up- their residence in the Charles Street home. About two weeks .after the wedding, Dr. McClees’ mother and her daughter, Mrs. Bumgarner, left Baltimore for practically the same trip which the doctor and his wife had taken. It will be seen that the arrangements, all of which were known to the wife, should have been reasonably conducive to the contentment and happiness of the married couple. This did not prove to be true; for almost as soon as they returned to Baltimore, if, indeed, it did not begin •during the wedding trip, disagreements, bickerings, arguments, and quarrels occurred between them.

This situation •continued, and gradually grew worse; and at times, according to the testimony, resulted in physical encounters between the husband and wife, culminating in the appellant leaving the Charles Street home on August 23rd, 1929, and going to her sister’s, where she has since remained. The cause of this condition, the wife contends, was the presence of the appellee’s mother and children in the home; while the appellee contends that it was caused by the ungovernable temper and generally hostile attitude on the part of the wife, with the purpose of compelling him either to get rid of his mother and children, or provide a separate apartment out,-side of his home for his wife. ¹¹⁹ The testimony is exhaustive in support of the respective contentions, requiring- eight clays for its presentation, and making up a large record. A thorough study of the record convinces us of the painstaking patience exhibited by the-chancellor, and the exactness with which he understood even the minutest details given in evidence. The record presents a case in which, as has been many times said by this court, the atmosphere of the trial is invaluable in reaching a correct and just conclusion.

This atmosphere is reflected, to a degree, in the record; hut the appearance and demeanor of the witnesses, and their manner of testifying, the chancellor had the benefit of, while it is denied to us. Eor this reason we are not at liberty to disturb the chancellor’s findings of fact, except in cases, where they are clearly contrary to the-weight of the evidence. A considerable part of the appellant’s brief is devoted to-the argument that it is the duty of a husband to maintain a matrimonial domicile where the wife will be free, in the management of the home, from the- interference of others. She relies largely upon the case of Hoffhines v. Hoffhines, 146 Md. 350 , 126 A. 112 .

The rule there stated w-as applied to the peculiar circumstances of that case; and in each case such facts must he shown to exist as make the rule applicable. The- facts now before us present a ease more analogous to the case of Ewing v. Ewing, 154 Md. 89 , 140 A. 37 . In the Hoffhines case, the effort was made by a husband, financially able to- maintain a separate domicile for his-young wife, to require her to live with his parents in a home controlled and dominated by them, while here the home is owned by the husband, is thoroughly comfortable, and even pretentious. The wife was given complete charge, with a corps of servants under her control and direction, amplefmi rip for the conduct -of the hame being turned over weekly to the wife, to be expended as she might decide.

In addition, it is shown that Dr. AlcClees’ credit was of the best; and his wife was given unlimited authority to- buy what she pleased at the stores in Baltimore City, and charge to her ¹²⁰ .husband’s account. Yet it is claimed on behalf of the wife that at least the mother of Dr. McClees, if not his children, .should be compelled to leave the home. While it is true that a husband owes the duty to his wife of doing those things conducive to her happiness and comfort, yet this does not mean that he should disregard the duty of caring for and protecting others of his immediate family who are dependent upon him. Common sense does not suggest it, and the law does not require it.

Parties to the marriage must realize that the relationship is seldom perfect, and that, it is essential to the happiness and contentment of the parties, as well as for the benefit of society, that each tolerate inconveniences, annoyances, even hardships, and make sacrifices for the common welfare. It is for this reason that the law does not recognize trivialities, but requires that the causes for divorce be grave and weighty. Persons having natural or legal ■duties and obligations before marriage should not be required to entirely relinquish or disregard them upon assuming the marital status. It would serve no useful purpose to set forth at any great length the testimony contained in this record.

As stated, it discloses that the husband and wife lived together but little more than a year, during the whole of which time intermittent quarrels, progressively violent, were engaged in. 'It indicates a wife of a high-strung, nervous, irritable, and .suspicious nature. She repeatedly charged her husband with infidelity, when there is no testimony, even from her, indicating any ground of .suspicion in this respect. She charges her husband’s mother with being the cause of the disagreements between her and her husband; yet the record is devoid ■of a single instance where the mother-in-law attempted to exercise any authority in the home, or interfere with the wife’s management thereof. It is true she did exercise control over her grandchildren; but this was at the express request of the wife.

So, if the mother-in-law was the cause of the discord, it was her mere presence in the house rather than anything she did or said to or about the appellant. The ¹²¹ undisputed circumstances immediately preceding and leading up to the wife’s departure from the home on Friday, August 23rd, 1929, were that on Tuesday, August 20th, before the husband returned from his office, she had requested the mother-in-law to go to the theatre, and was told that she was unable to go because her daughter, Mrs. Bumgarner, was coming to see her; that the wife then went to the theatre, and was away when the husband returned to the home, where he found his mother and sister. This was about 8.30 P. M. About 9.30 the sister prepared to return to her own home, and the husband told her, it being very hot, he would drive her home. There being no one else in the house except his mother, he suggested to her that she accompany them to her daughter’s home, which she did.

They stayed at the daughter’s home for a while, returning to the doctor’s home about 11.30, put the automobile in the garage, and went in the back way. They heard the radio, and knew that the wife had returned. The mother-in-law went upstairs the back way, and the husband went to the front, where he found his wife sitting in the living room. From this point the account of what occurred is in conflict.

The doctor’s testimony is: “We arrived home about five minutes after eleven o’clock. My wife, in the meantime, had returned; I could hear the radio going in the front room. My mother said to me, ‘I am going upstairs to brush my teeth and then retire.’ So I continued on to the front room. My wife was sitting at the front window. 1 said, ‘Hello, Bee, what time did you come in ?’ She said, ‘Hone of your damned business.’ So I went to the front door to see that the outer glass door was closed and when I came in she said, ‘Where is your mother?’ I said, ‘My mother is upstairs.

She said, ‘You are a liar.’ I said, ‘If you want to talk like that, I might as well go upstairs,’ and she turned out the bridge lamps and followed me right upstairs, and I went to the bathroom and was brushing my teeth. When she came in she said, ‘Where is that mother of yours ?’ I said, ‘Mother is downstairs.’ She said, ‘You are a liar.’ She then went out ¹²² of the room and I did not know where she was going, and I went in the guest chamber where I had been sleeping for the last five nights, and I had removed my collar and shirt and was sitting on the edge of the bed and was just putting one shoe underneath the bed. I had not removed my pants, when she rushes into the room in her night clothing, and she slammed the door very hard and she grabbed me by the hair and she pushes me back over the chair and she said, ‘Why in the hell do you want that God damned old seventy-five year old mother of yours snooping on me downstairs in ihe closet?’ Then she turned my hair loose, or I wrenched her hands from my hair, rather, and when I got up or getting ready to get up, she said, ‘Damn you, I will ruin you for life, you have been running around with women,’ and with that she took her heel and rammed it between my legs and I was in agony. I got off the bed hurried and I grabbed her and she tore my undershirt off me.

I was then like a coal heaver on a ship, stripped from the pants up, with one shoe off and one on. I wanted to get out of the door and she would not allow me, she pushed against me each time, she pushed her body against me each time. She then tided to scratch me with her hands, she continually tried to kick me with her knees. I said, ‘Bee, if you don’t stop this, I will have to slap you,’ and she didn’t, so I slapped her- with the palm of my hands.

I finally got the door open and the hallway was dark, but there.was a light in the room where this episode took place and I called my mother; I knew if I called my mother she would get quiet immediately. I called for her to light the light and she lit the light in the hallway, and I had my wife around her waist to try to protect myself, and she bit me in the left shoulder and also scratched that left shoulder terrifically. When my mother entered the'hallway she threw her arms around my mother and she said, ‘Oh, Mrs. McClees, I have always blamed you.for those things, but it must be your son.’ I took my clothes and went downstairs. I was almost exhausted, it was a terrifically hot night and I went down ¹²³ stairs in my daughter’s room and there is where I remained for the night.” The wife’s account is that after she returned home from the theatre she locked the house and waited until about 12 o’clock in the living room, at which time her husband returned. “He came into the living room where I was.

He said, ‘Where have you been ?’ I thought he expected me to be mad because he was out until quarter of twelve, I said, ‘Who wants to know ?’ He said, ‘I do.’ I said, ‘I have been home, hours before you have, what difference does it make ?’ He went over and turned off the radio. I said, ‘Don’t turn off the radio, I am not going up yet-.’ He said, ‘What do you want to do, have a fight ?’ I said, ‘Where is your mother, Sheridan?’ He said, ‘Upstairs.’ I said, ‘Oh, no, she isn’t, I looked all through the house as I came down.’ He said, ‘You are a damned liar, she is,’ and he was going up the stairs. I sat and listened to the radio for a few minutes, probably not more than five, when I thought, ‘Well, for some reason Mrs. McClees might have stayed in and she phoned him and he knows all about it.’ I turned off the radio and went upstairs and switched off the lights. When I got ■within three steps of the top Dr. McClees was in the third story back room.

I looked down and there wasn’t a ray of light to be seen anywhere. I called to him and said, ‘Sherry, your mother isn’t down here.’ He said, ‘You are a damned liar, she is.’ I went to the back of the house—I did this, your Honor, because I had left that door locked and knew Mrs. McClees could not get in and I would be blamed for trying to keep- her out of the house. I took in the boy’s room, I took in Mrs. McClees’ bathroom, turning on- each light. I turned the light on in Mrs. McClees’ room, the lamp sitting on the