Rodgers v. Rodgers

Thomas, J., delivered the opinion of the Court. The appellee, on the 26th of November, 1920, filed a bill of complaint in the Circuit Court for Harford County for a ■divorce a vinculo matrimonii from the appellant on the ground of abandonment, which is alleged to have occurred on or about the first of December, 1914. Tbe bill states that the parties were married in Annapolis, Maryland, on the 13th of January, 1912; that they lived to- ⁵⁵⁰ gather as man and wife until about the 1st of December, 1914, and that while living together, the conduct of the plaintiff towards the defendant “was always kind, affectionate and above reproach.” It further alleges that they had one child, a daughter, who was seven years old on the 24th day of July, 1919, and resided with the defendant at Newport, Bhode Island, and that because of her youth, and the fact that the plaintiff was an officer of the United States Navy and compelled to spend a considerable part of his time away from home, he was willing for her to remain in the custody of the defendant, provided that he might have the custody of the child for a reasonable time each year. The defendant’s answer admits the marriage, and that the child was living with her, but denies the other averments of the bill, and particularly denies that the defendant deserted or abandoned the plaintiff.

The evidence shows that at the date of the marriage the plaintiff was under orders to go to California, that he and the defendant arrived there about two weeks later and lived in a cottage in Corona, near San Diego, about four months; that' he was called to Annapolis about the last of April and they lived there in the house owned and furnished by Mrs. Greiner, his mother-in-law, until August 5th, when he received orders to> command the fleet tender Yankton; that he remained on the Yankton until October of the same year, when he was ordered to the battleship' Nebraska, attached to the Atlantic fleet, and remained on the Nebraska until September, 1913; that after the plaintiff was orderd to the Yank-ton, the defendant remained in Annapolis about two months, and then went to the home of the plaintiff’s father, in Harford County, Maryland, from there to> Philadelphia tor visit her mother, and from Philadelphia to Newport, Bhode Island, where she and her mother took a cottage; that during the time he was. on duty on the Yankton and Nebraska the defendant visited him at New York, Hampton Boads and Newport; that after the Nebraska returned from Mexico in ⁵⁵¹ 1913, and while she was at the Navy Yard in Boston, which was about a two hours’ ride from Newport, the plaintiff visited the defendant at her cottage in Newport every week end that he could get off for about two months, and after that about every ten days until the Nebraska sailed in September, 1913 ; that he was transferred at Hampton Roads to the gunboat Paducah and did not see the defendant again until September, 1914; that the 'Paducah arrived in New York from Mexico the latter part of August, 1914, and from there went to Portsmouth, New Hampshire, where she and the plaintiff remained until about the middle of February, 1915. The plaintiff further testified that after his vessel arrived in Portsmouth in September, 1914, he went to see the defendant every time he had an opportunity — nearly every week end, until she “took action against him in October of that year, and that during the period from his marriage to October, 1914, he contributed one hundred dollars per month to the support of the defendant and his child. As to what occurred in Newport in October, 1914, the plaintiff testified as follows: “The first interruption (in their r*elations) occurred once when I made a trip to Newport, having informed Mrs. Rodgers that I was coming. When I reached the house she and a friend were setting the table for supper.

She greeted me like this: ‘What are you doing here ? I telegraphed you not to come.’ ” After saying that they had no argument that evening, he said: “I think I remained at the Hotel Perry that evening'. I am not sure what occurred after that on that visit. I know that I returned to the Paducah the next day.

My next visit was approximately two weeks later. T think it waS1 about tbe middle of October of that year. On the Sunday of that visit I asked Mrs. Rodgers (the defendant) to take an all-day ride in an automobile, and when she came out to get in the automobile — it was a small flivver about like a Ford — I said: ‘It is a fine day, let us both try to see if we can’t have one day without trouble, without a row,’ is what I think I said. S'o far as I know we never had a day in our ⁵⁵² married existence -without some sort of ruction — I don’t recall one now.” He stated that he did not receive the telegram referred to telling him not to come, hut that when he got hack to the ship the captain handed it to him.

"When asked to go ahead and tell about the automobile ride on Sunday, he said: “To‘ expand on my answer to that question, why, I said that during’ the period of time that I have recently described, from the time of the arrival of the P'aducah in New York, when she declined to come to New York, until the time we started to take that automobile ride, I had been doing everything that I could to overcome the disagreeable^ ness of our relations; during that period she had been particularly disagreeable. At the time of the ride we seemed to be getting together more than we ever had before. ■ Therefore I was in hopes that we had reached some sort of satisfactory understanding. I was very anxious to> continue it and have a pleasant day that day. 'She agreed to do her part in making it a pleasant trip. I think it was about 10 o’clock when we started out and we lunched — had rather a pleasant lunch at Stone Bridge.

The ride continued on and was very agreeable to- me until about 4 o’clock that afternoon, when the subject of home came up. I do not remember what started that subject, but I do remember distinctly telling her that she should be at Zion Hill — my father’s home — with the child, where the child could get the benefit of the country air and other advantages instead of being cooped up' in a little house in Hewport. In answer to this she made a vituperative and extremely disrespectful and insulting remark regarding my mother. She said she didn’t want to live at my father’s place, that it was a dirty place and the servants were not efficient, that she didn’t like my mother and didn’t want to associate with her.

That is all that she said, and I said, ‘Shut up, or I will ditch the car.’ We were then going, down a long hill, and I put my foot on the accelerator. The car jumped, and she screamed, ‘Remember the child,’ and I remembered the child and took my foot off. She said, ‘Let me out of the ⁵⁵³ car,’ and I said, ‘No, we are going to continue on’; but she started to get out herself — this was sometime afterwards when the car had slowed down. When the speed of the oar slowed down, she got out on the runningboard.

I felt convinced that she would not jump, hut I found that she was putting her foot over the runningboard with the apparent intention of rolling off. Then I reached down and grabbed ber by tbe coat, and pulled her into the automobile. I think I tore her coat-, or tore a button off at that time. Then I got her hack in the ear and we went to the bottom of the hill.

I stopped the car there to fix the engine, and when I looked up from my engine I saw she was out of the car. I told her to get back in tbe car and she refused to do so. I knew she had no money, and I offered her some change so that she could go hack in the cars. Mrs. Rodgers- refused to take the money, and I took her by the arm and forced or led her around to the car, and pushed her in — she didn’t resist hut held back. 1 was about to get in the car when some one came up- back and attracted my attention.

I turned and as I did so she got out. When I turned around, she had gotten out of the car and gone down to the bridge. I got in tbe car and went to the other side of the bridge with the intention of leaving -her there, but I thought that would not be right. Several cars went by and then a runabout with a young man in it came along. 'She stopped it.

She got in and they went off and I followed. When I reached home, it was almost time for my train to leave. I went in and told Mrs. Greiner — her mother — what had happened, then I had to run for my train. * * * I went back to the ship, and I was very much disturbed and disappointed with myself in having so' far lost my control as to frighten Mrs. Rodgers, as I unquestionably did. When T got on ship, I wrote a letter to her mother — feeling in view of her attitude that she did not Want to hear from me.

That enclosed a check for two hundred dollars, and my answer to that letter was a communication from a lawyer by the name of Mr. Mahoney in Newport, and he said he wished to see me in ⁵⁵⁴ regard to my behavior to my wife. I went to’ Newport as soon as I conld to see bim. Mr. Mahoney, after discussing the situation for some time, stated that Mrs. Rodgers was filing a petition for a separation with the idea later on, when she became a legal resident of Newport, that she Would get an absolute divorce.” After stating that Mr. Mahoney also told him that his wife wanted one hundred and fifty dollars per month alimony, and the custody of the child, he said: “I tentatively agreed to everything except the one hundred and fifty dollars per month, and asked Mr. Mahoney if he could give me the name of an attorney who could work with him amicably in this case and bring it to an easy settlement. He gave me the name of Mr. William Williams, and I went to see Mr. Williams.” When asked if he saw Mrs. Rodgers subsequent to that, he said: “I Was called on the telephone, and she said she wanted to see me.

It was less than a week from the time I was served with the papers. She said, 'Can I see you V and I said, 'Yes/ She said, 'Where ?’ and I said, 'I have made an arrangement to go> to a football game today with a party, and, if you wish, you can join the party in Boston.’ ” He then testified that the defendant accordingly met him in Boston, went to the game, then to the theatre and then to their room in the hotel, where he and the defendant spent the night together and remained until the following afternoon. After testifying to a conversation with her, which, he says, she opened up, and said how miserable she was, that she couldn’t stand the publicity she was getting, and in which she ''took the responsibility for everything that had happened” in their married life and asked him to forgive her and take her back, he said further, ''For some reason Mrs. Rodgers was extremely anxious to come to Portsmouth with me. * * * On this occasion, for the first time, she was anxious to come to Portsmouth. I said that she was to go bade to Newport, and I would go back to Portsmouth, and after arriving there I would,let her know whether to' come or not.

On my way back, I recalled that Mrs. Rodgers had said that she had ⁵⁵⁵ no intention of getting an absolute divorce — only a separation, and she explained that she was getting that because she was afraid that I would come and kill her on account of the things she had said about my mother. At the time the difference in the statements between her and Mr. Mahoney made no difference to me, as I was not then concerned in what she had done, hut what she was going to do. I realized now that an important part of her statement was at issue — that there was a difference in the statements, and that either Mr. Ma-honey or she had told a falsehood. I did not see how I could continue to go on with her until that difference in statements was definitely straightened out. * * * I went to' Newport on the first opportunity.

I arrived there on Sunday evening — I think it was December 1st or 2nd, 1914. I met Mr. Mahoney on the platform of the station and told him I wanted to see him at No. 46 Mann A,venue, where my wife was living.” He then said that Mr. Mahoney said he would come over that evening, and that he, the plaintiff, then went to see Mr. Williams and asked him, to come to the meeting, after which he went to his wife’s house. He further testified as to what occurred there that evening as follows: “I remained in the house with my wife and played with the child and talked to her. At that time her attitude was not conciliatory, to sav the least, she was reserved.

When the appointed time came— T think it was about 6 o’ clock in the evening-1 — anyway it was after dark, Mr. Williams and Mr. Mahoney arrived. I said to Mr. Mahoney that he had told me that Mrs. Rodgers ultimately intended to get an absolute divorce. Then turning to Mr. Williams,