Scheinin v. Scheinin

Delaplaine, J., delivered the opinion of the Court. Suit was brought by Sylvia Scheinin in the Circuit Court of Baltimore City against her husband, Jesse Scheinin, for a divorce a mensa et thoro, custody of their two sons, alimony and support, and counsel fee for her attorney. She charged her husband with cruelty of treatment and desertion. Defendant filed a cross-bill for a divorce charging desertion.

This appeal is from a decree dismissing the cross-bill and awarding complainant the limited divorce, custody of the children, alimony and support at the rate of $35 per week, and a counsel fee of $100 for her attorney. The parties were married in 1940. In June, 1949, they purchased as tenants by the entireties a small six-room house on Reisterstown Road in Baltimore. Defendant, an employee of the Hatters’ Union, invited his secretary, who had separated from her husband, to board in the house, to help pay on the mortgage on the property.

Complainant testified that her husband and his secretary moved into the house before she did, as one of her sons was sick at the home of her sister and ²⁸⁶ mother, and she stayed there for two weeks before coming to the new home. She testified that she prepared the meals for the family as well as for the boarder, and that her husband and the boarder would leave together in the morning and often did not return until after midnight. She testified that her husband stopped speaking to her, and she felt like a complete stranger in her own home. She declared that she “could not stand it any longer.” She told her husband that she wanted the girl to move out of the house.

She testified that he said “that she was not * * * going to leave this house until the time came that she had planned to go, and it was his house as well as mine, and I could not make her go.” Complainant was so distressed that she decided to tell the girl’s mother “what was going on.” Complainant then testified: “The next morning his secretary came in screaming her head off, and really woke up the whole household, and she cursed me.” Complainant called the police, and when they arrived she asked them to put the girl out of her house on account of her language. But defendant informed them that the girl was his secretary and a boarder in the house and had paid her rent until the end of the week. Thereupon the police officers departed. Upon complainant’s insistence, the girl finally moved out of the house in January, 1950.

Complainant testified that during the period from January to June, 1950, her husband showed his resentment by treating her with great cruelty. She said that he talked to her in abusive language and ridiculed her before the children. She also said that he struck her many times. When she was asked whether any marks were made upon her, she replied, “Yes, my body was bruised.” One of her corroborating witnesses swore that her husband spoke to her in profane language.

On the other hand, defendant urged that no witness saw him strike his wife prior to her suit for divorce, and she admitted that she did not show any of her bruises to anyone. Complainant also testified that upon arriving home from a dinner on the evening of June 10, 1950, she found ²⁸⁷ her elder son in bed with her husband in the front bedroom, which she and her husband had used as their bedroom ever since June, 1949. She took the boy out of the room and put him back in one of the other rooms, and she slept that night with her husband in the front bedroom. On the following evening, however, according to her testimony, her husband told her that he did not want to have anything more to do with her, and in consequence of that demand she has been using one of the back rooms as her bedroom ever since.

The parties have not cohabited since June, 1950, although they have continued to live in the same house. In England matrimonial disputes were subject to the jurisdiction of the Ecclesiastical Courts, which were governed by the principles of the civil and canon law. According to the canon law, extreme cruelty was a ground for a judicial separation of husband and wife, but not a ground for dissolution of the contract of marriage. Under the rule adopted by the Ecclesiastical Courts, there must have been actual or threatened physical violence on the part of the defendant threatening bodily injury of the complainant to constitute cruelty.

In the celebrated opinion in Evans v. Evans, 1 Hagg. Consist. 35, 4 Eng. Ec. 310, 161 Eng. Reprint 466, delivered in 1790, Lord Stowell said: “Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are high moral offenses in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve.

Under such misconduct of either of the parties, for it may exist on one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation; and if this cannot be done, both must suffer in silence. And if it be complained that by this inactivity of the courts much injustice may ²⁸⁸ be suffered, and much misery produced, the answer is that courts of justice do not pretend to furnish cures for all the miseries of human life.” In 1842 the Legislature of Maryland conferred jurisdiction in- all applications for divorce upon the Chancellor or any County Court of the State sitting as a court of equity. That Act provided that divorces a mensa et thoro may be decreed for the following causes: cruelty of treatment, excessively vicious conduct, and abandonment and desertion. Laws 1841, Dec. Sess., ch. 262.

The law still- authorizes such divorces for the same causes. Code 1989, art. 16, sec. 41. In 1851 Chancellor Johnson announced in the High Court of Chancery that the words “cruelty of treatment” as contained in the Maryland divorce statute would be given the same interpretation as given to them by the English Ecclesiastical Courts. Coles v. Coles, 2 Md. Ch. 341, 351; Daiger v. Daiger, 2 Md. Ch. 335, 340, Tayman v. Tayman, 2 Md. Ch. 393, 399.

The Court of Appeals similarly stated in 1878 in Childs v. Childs, 49 Md. 509, 514 , that the Legislature, in conferring jurisdiction in suits for divorce upon the Circuit Courts of the State, did not alter the law regulating the relation of husband and wife or diminish in any degree the obligations of marriage. Thus the law is established in this State that a divorce cannot be granted on the ground of cruelty of treatment merely because the parties have lived together unhappily as a result of unruly tempers and marital wranglings. We have adhered to the rule that marital neglect, rudeness of manner, and the use of profane and abusive language do not constitute cruelty. Porter v. Porter, 168 Md. 296 , 177 A. 464 ; Hyatt v. Hyatt, 173 Md. 693 , 196 A. 317 ; Miller v. Miller, 185 Md. 79 , 42 A. 2d 915 ; Sullivan v. Sullivan, 199 Md. 594, 599 , 87 A. 2d 604, 606 .

Ordinarily a single act of violence slight in character does not constitute cruelty of treatment as a cause for divorce. Hoshall v. Hoshall, 51 Md. 72 , 34 Am. Rep. 298 ; Goodhues v. Goodhues, 90 Md. 292 , 44 A. 990 ; Gellar v. Gellar, ²⁸⁹ 159 Md. 236 , 150 A. 717 . But it is now accepted in Maryland, as well as generally throughout the country, that a single act may be sufficient to constitute the basis for a divorce on the ground of cruelty, if it indicates an intention to do serious bodily harm or is of such a character as to threaten serious danger in the future.

Hastings v. Hastings, 147 Md. 177, 181 , 127 A. 743 ; Crabtree v. Crabtree, 154 Ark. 401 , 242 S. W. 804 , 24 A. L. R. 912, 918. In both England and the United States the modem decisions have broadened the definition of “cruelty.” The courts have seen the changing social sense of propriety, and now recognize that physical violence is not the most dreadful injury that can be inflicted upon persons of refined sensibility. In ancient days it was not understood that mental suffering had anything to do with bodily ills. In this connection Bishop says: “Under more enlightened physiological views, the legal doctrine has become settled, it is believed everywhere, that conduct which produces pain of mind is legal cruelty; so that whenever, operating either alone or in combination with something else, it creates a danger to the physical health, a divorce for it or the combination will be justifiable. * * * It would be a reproach to the law to permit a husband to ruin the health of his wife or kill her in one way, but not in any other.

If the body is the only thing to be regarded, yet if we find various avenues to it, through any one of which may run the waters to drown its life or health, surely we cannot maintain that there is any principle whereby the approaches through one avenue shall be left open while the others are closed.” 1 Bishop, Marriage, Divorce and Separation, secs. 1563, 1564. So in Maryland physical violence is no longer essential to constitute cruelty of treatment. It is now accepted that cruelty as a cause for divorce includes any conduct on the part of the husband or wife which is calculated to seriously impair the health or permanently destroy the happiness of the other. Thus any misconduct of a ²⁹⁰ husband that endangers, or creates a reasonable apprehension that it will endanger, the wife’s safety or health to a degree rendering it physically or mentally impracticable for her to properly discharge the marital duties constitutes cruelty within the meaning of the divorce statute.

Wendel v. Wendel, 154 Md. 11 , 139 A. 573 . For instance, in Silverberg v. Silverberg, 148 Md. 682 , 130 A. 325 , this Court held that evidence that the husband had made false and malicious accusations of unchastity against his wife in the presence of others and had committed other acts designed to humiliate her justified a divorce a mensa et thoro. In the instant case the chancellor apparently based his decision upon constructive desertion, rather than upon cruelty. It is accepted that any conduct of a husband that renders the marital relation intolerable and compels the wife to leave him may justify a divorce on the ground of constructive desertion, even though the conduct may not justify a divorce on the ground of cruelty.

Sullivan v. Sullivan, 199 Md. 594, 600 , 87 A. 2d 604, 607 . Any misconduct of the husband will justify the wife in leaving him when it