McClees v. McClees

Parke, J., delivered the opinion of the Court. Beulah P. McClees was married to J. Sheridan McClees on August 1st, 1928, and they have no issue of their union. The husband was a widower, with three children, and the wife had been twice married and divorced, and had received from her second husband a settlement of about $11,000 by way of alimony. Her last matrimonial adventure was unhappy, and the wife left the husband on August 23rd, 1929, and, on September 6th, 1929, filed a bill for a divorce a mensa el thorn, alimony pepidenie lile, and permanent alimony and counsel fees.

The grounds alleged were the constructive desertion of the husband, and his cruelty, which compelled her to leave home to> obtain safety and preserve her health. The chancellor denied her relief, and this action was affirmed on appeal by this court. (See McClees v. McClees, 160 Md. 115 , 152 A. 901 .) The opinion was written by Judge Digges, who, after a thorough and careful review of the testimony, stated the conclusion of this tribunal with respect to the character and conduct of the wife as follows: “The record is replete with evidence as to the violent temper of the wife, and profane and abusive language directed to her husband, her mother-in-law, and the children. It is needless to record these expressions, but there can be no reasonable doubt as to their having been used by the wife, because they are testified to by numerous witnesses on numerous occasions, and are only half-heartedly denied by her.

The wife says she still loves her husband, and wants to live with him, provided he establish a home wherein they can live by themselves, which is equivalent to refusing to' return to his present home. “The chancellor, with the most satisfactory opportunity, has determined that there has been no constructive desertion ⁷³ on the part of the husband, and no cruelty established such as the law recognizes as a cause for divorce a mensa et thoro. After a careful consideration of the record, we are in agreement with that conclusion. We find that the presence of the children and mother-in-law in the home, they being dependent upon the husband, does not constitute constructive desertion by the husband and does not justify the wife in leaving. As to the acts of alleged physical cruelty relied upon, it is sufficient to say that, in our opinion, they were brought on by the words and acts of the appellant, and that what force was applied to the person of the wife by the husband was to reasonably protect himself from her aggressions, there being apparently little difference in their physical strength.

There is no evidence whatever of the wife being-in physical fear of her husband. On the contrary, the whole record discloses an attitude on her part of belittlement and contempt for her husband.” The decree of the chancellor was dated June 18th, 1930, the appeal was argued at the following October term of this tribunal, and the cause was decided here on January 13th, 1931. Four months later, or May 14th, 1931, the wife- began a second suit for alimony pendente lite, permanent alimony, and for an injunction to restrain the husband from disposing of any interest he may have in the properties enumerated in her bill of complaint. The theory of this second bill of complaint is that the wife is entitled to temporary and permanent alimony, because, after the affirmance of the chancellor’s decree by the appellate court, the wife has sought a reconciliation, and has endeavored to resume marital relations and has promised to be a good wife, but has been repulsed by the husband, who declines to become reconciled with his wife or to contribute to her support.

For the purpose of showing his faculties, the new bill alleges that the defendant is a dentist with an income of not less than $12,000 a year from his practice, properties, and the estate of a dead wife, and the owner in fee of several properties worth $40,000. ⁷⁴ The husband filed an answer on May 29th, 1931, wherein he set up- a lesser income, and specifically stated “that the complainant has never returned to his present home (wherein reside his children and his mother) and he avers that she has never offered so to do. He avers that his home is now and always has been open to- receive her*, but that she refused and still refuses to live in his home, and her apparent efforts at reconciliation are merely ingenious attempts, on her part to embarrass and harrass him, and to thereby improperly obtain from him additional money.” The answer to this, pleading was a petition filed on June 1st, 1931, in which there is a repetition of her former allegations; an averment that on June 1st, 1931, in response to the defendant’s answer, the wife presented herself at the defendant’s home to resume her marital x*elatioxxs, and was rebuffed, and a prayer for the allowance of fifty dollars a week as alimony pendente lite. The defendant filed on Jxxne 3rd a petition for the taking of testimony, which was begun befox*e the chancellor on June 16th, 1931, and resulted in a decree on June 18th, 1931, dismissixxg the plaixxtiff’s bill of complaixit. The plaixxtiff appealed, and axx order was passed on August 12th, 1931, requiring inter alia, the defendant to pay $200 to his wife’s solicitor as counsel fee for prosecuting the plaintiff’s appeal, and the, defendaxxt entered an appeal from the order for this allowance.

Since the wife left the husbaxxd without the commission by him of some distinct matrimonial offense upoxx which a decree of judicial separation could have been granted, her desertion began whexx she left, and was not intex’cepted by the divorce proeeedixxgs which she later unsuccessfully began. 1 Bishop on Marriage and Divorce, secs. 1757, 1758; McClees v. McClees, 160 Md. 129 -130, 152 A. 901 . The genex’al rule is that, if one spouse leaves the other without cause, axxd repents and proposes to renew the cohabitation, and that other x-efuses, it constitutes desertion by the one refusing, fxum the time of the refusal, provided the offer to return is made in good faith, and is free from improper qualifications and conditions, and is really intended to be ⁷⁵ carried out in accordance with the performance of the duties and obligations of the matrimonial cohabitation. 1 Bishop on Marriage and Divorce, secs. 1705-1709, 1764, 1774, 1775; Simmont v. Simmont, 160 Md. 422, 432 , 153 A. 665 ; Wise v. Wise, 159 Md. 596, 598-600 , 152 A. 230 ; Epley v. Epley, 83 N. J. Eq. 214, 89 A. 1028 ; Bohanan v. Bohanan, 150 Iowa, 182 , 129 N. W. 819 . There is no dispute that the wife offered to return and resume cohabitation, and she affirms, but he denies, that the offer was in good faith, without any qualifications and conditions, and intended to be fulfilled in a proper spirit. The issue therefore is of fact, and except in respect to the episode of June 1st, 1931, which was after the filing of the pending suit, the husband and wife are the only witnesses produced to testify to what occurred. 1.

The conflict between husband and wife in respect to whether or not there were any qualifications and conditions to the wife’s offer may first be considered. The wife testified that she had unconditionally surrendered, and that her offer to return was absolute. The husband’s testimony is to the effect that his wife never did offer to return to his home until after the pending suit was brought; but that she had requested him to provide her with a separate apartment, where he could stop on his way to the office, and either remain at night or go home to his family. After he declined to accede to these conditions, she, subsequently to suit brought, did ask him to take her back in his household, and presented herself at his door for admission on June 1st, 1931.

This episode occurred under these circumstances. The bill of complaint was answered on May 29th, 1931, by the defendant, who among other matters, stated that his wife “has never returned to his present home (wherein reside his children and his mother) and he avers that she has never offered so to do. He avers that his home is now and always has been open to receive her, but that she refused and still refuses to live in his home, and her apparent efforts at reconciliation are merely ingenious efforts on her part to embarrass and harass him, and toi thereby improperly obtain from him ⁷⁶ additional money.” The wife’s attorney gave her a copy of this answer, and called the husband on the telephone and asked hi!m if he would allow his wife to come home, and the husband referred the wife?s attorney to his attorneys of record. The wife testified that her attorney advised her to go to her husband’s home, although she had endeavored to obtain his consent by telephone, and he had refused to discuss the .matter with her.

About seven o’clock in the evening, the wife took a hat box, with a few necessary articles, requested her niece and a boarder where she lived to accompany her, and drove in the boarder’s automobile to- the husband’s residence, and ascended the steps of his home. The husband was at the window, and, by his direction, his son barred the door, and the wife descended the steps, entered the waiting automobile, and returned home with her escort. She then called the husband twice by telephone, and he would not talk to her, and late in the evening she wrote a letter in which she made a record of the circumstances and expressed her amazement that she was denied entrance to. his home, and then copied the letter and placed it in an envelope, which she had the boarder address and mail to her husband. The insincerity of this theatrical gesture is evident when it is recalled that her attorney, after inquiring if she could return, had been directed by the husband to confer with his attorneys; that her husband had declined to. talk to her on the subject; and that, before the party set out to. come back again, her niece had been told by her, “Ruth, he hasn’t said I can come back.

Do you want to' go. with me?” Independently of whether or not the husband desired a reconciliation, this act of the wife was while her suit was pending, and is so manifestly a self-serving maneuver made post litem moiarn that it has no evidential value in determining-the question whether or not the wife’s offer to. return before suit brought was a conditional