Roeder v. Roeder

Shehan, J., delivered the opinion of the Court. There are two appeals in this record. Each of them is from a decree of the Circuit Court for Allegany County and relates to allowances of permanent alimony or separate maintenance to' Clara Roeder, the appellee. Under the first decree, dated the 15th day of February, 1936, the chancellor allowed $100 per month.

This was modified by ^ decree of March 14th, 1936, wherein the appellant, William P. Roeder, was ordered to pay to the appellee $70 per month. From both of these decrees appeals were taken and are before us for consideration. Clara Roeder, on the 5th day of June, 1935, filed a bill of complaint against her husband, William P. Roeder, in which she alleges that the plaintiff and defendant were married on the 30th day of June,'1930, and lived together in Cumberland, Maryland, from that time until June 1st, 1935; that on this date the appellant, without making any provision for the support of the appellee, abandoned and deserted her, and at that time she did not know where he was. She further alleged that her husband was a man ⁵⁸¹ of considerable means and recounted the kind of property he owned, and that he had a substantial income, and that she was entirely without means of support.

In the bill she prayed for alimony out of her husband’s estate, that a receiver be appointed, and for general relief. The chancellor passed an order allowing the sum of $100 per month as alimony pendente lite and appointing Albert A. Doub, Jr., receiver of the estate of the said William P. Roeder, with the usual power and authority, and providing for a bond of $6,000. The order for the appointment of a receiver was subsequently revoked. A combination demurrer and answer was filed to the bill of complaint.

The essential averments of the bill were denied, the demurrer was overruled, and testimony was taken. The bill did not contain a prayer for a divorce, and the only question before the chancellor, and before this court, is the correctness of the allowance of permanent alimony or separate maintenance, and the amount thereof. The testimony shows that the appellant had previously been married, that he had two sons by a first wife, and was paying to his first wife alimony of $50 per month. In this case the allegations of the bill, in order to support a demand for alimony or separate maintenance, there being no prayer for divorce, must be such as would entitle the plaintiff to a divorce a mensa et thoro, if such relief had been prayed, and these allegations must be supported by a clear preponderance of evidence.

Miller v. Miller, 159 Md. 204 , 150 A. 451 ; Lynch v. Lynch, 166 Md. 300 , 170 A. 764 ; Hood v. Hood, 138 Md. 355, 360 , 113 A. 895 ; Polley v. Polley, 128 Md. 60, 63 , 97 A. 526 ; Outlaw v. Outlaw, 118 Md. 498, 502 , 84 A. 383 . This being the rule, it is our duty to consider the facts and to determine whether they are sufficient to establish the right of the appellee to a divorce a mensa et thoro. The facts in the case that are conclusively established by the testimony and stand without important contradictions, and which relate to the alleged desertion, may be summarized as follows: ⁵⁸² William P. Roeder, as early as the summer of 1933, had lost interest in his home, and no longer wished to live with his wife, as disclosed by his letter to Miss Anna May Perrin, his secretary, of April 25th, 1934. In that letter he professed love for her, and stated that nothing but death would keep him from carrying out plans that were agreed upon between them the previous summer.

The letter is of some length and is filled with terms of endearment, and stated, “awaiting the day when I can have you all my own.” In a statement of instructions with respect to his business, and the reasons which were actuating him in leaving, he states: “I have decided to leave for another part of the country and attempt a come-back.” He further stated that his second attempt at matrimony was on the rocks. The departure of the appellant from Cumberland was evidently a matter that had been well studied. For a considerable period of time prior to his leaving he had been making plans in secret. These plans were quite elaborate.

They consisted of the purchasing of a new automobile and secreting it in the town of Ridgely, West Virginia. He denied the purchase of the car to his wife, but finally admitted it when confronted with a statement from the person from whom the automobile was purchased. His clothes were packed in boxes, transported to Ridgely, and were packed in this car. He gave a power of attorney to one of his sons with relation to his business, and some time previously he contracted with Charles Edward 'Meister to become connected with his business, especially in regard to the sales department.

He prepared to take with him practically all his clothes and personal belongings. When these and other preparations had been perfected he left Cumberland the night of the 1st of June, at about 9:30 o’clock. He did not bid his wife goodbye or tell her anything about where he was going. On the contrary, he did tell her he was going to a lodge, and in his testimony he does not deny this deception, and it must be accepted as true.

He contended that he was merely leaving his home for the purpose of visiting his son in ⁵⁸³ California. There is no corroboration of this, and, on the contrary, all the facts, either admitted or not denied, tend to prove the contrary. Mr. Meister was engaged by Mr. Roeder several months before he entered the employ of one of the appellant’s companies, and there was an agreement that he would assume his duties on short notice, and he did so. According to the evidence, no one knew of Mr. Roeder’s intentions except his son, his attorney, and Mr. Meister.

A power of attorney was executed to the son with relation to the business, a memorandum of instructions was given, he drew from the banks substantially all of his money, and, thus equipped, he secretly took his departure, unknown to his wife. He never communicated with her while he was away, and has not spoken to her since his