Schriver v. Schriver

Markell, J., delivered the opinion of the Court. This is an appeal by the husband (defendant, appellant) from a decree for separate maintenance, requiring ²²⁹ payment of $200 per month to the wife (plaintiff, appellee) , for the support of herself and two children, awarding her custody of the children, and dismissing a cross-bill for a divorce a mensa (on the ground of cruelty) and custody of the children. The grounds of the amended bill are cruelty and desertion, and adultery with a woman who will be referred to as the corespondent, which of course sh.e is not. The parties were married in 1928; he was 19, she was 20.

They have two children, a boy who was 15, and a girl 9, at the time of the hearing (August, 1944). Although throughout their married life (she says) he has frequently struck or beaten her and (he says) she has falsely accused him of misconduct with women, they seem to have lived fairly peacefully until the summer of 1942. It was stated at the argument that he is over six feet and weighs over 200, she about 120. She is nervous and has low blood pressure, and is under treatment by her physician.

She was in a hospital “for her nerves” for about ten days. He has been successful in the automobile supply and allied businesses. He has an office and warehouse in Cumberland and stores in Cumberland and several West Virginia towns. He has been liberal in providing for her and the children.

She is intensely jealous—insanely so, if she had no more reason or excuse than he says she had. Jealousy seems to be aggravated by a feeling of inferiority engendered by his business success. Both drink more than is good for their health or their tempers. In physical strength she is no match for him, but in verbal combat she can hold her own.

She says her “favorite exclamation” for him is “a heel and a louse.” This is a mild specimen of her vocabulary. When angered, she gives vent, in the language of a fishwife and without regard for place or persons, to the fury of a woman scorned. Both are, or were, fond of the children. In April, 1944, the boy developed tuberculosis.

His physician says he has been given the best of care by his mother and is ²³⁰ improving. The boy was loath to take sides between his parents, but through his father’s behavior and his mother’s appeals for help he seems to have lost affection for his father. In considering the conflicting testimony we have endeavored to give due weight to the fact that the lower court saw and heard the witnesses. The wife’s testimony as to blows and beatings is corroborated by her sister Mrs. Wilson, who saw her black eyes and other bruises.

Her son also says he has seen marks (bruises and bleeding) on her face, saw his father throw a knife at her at supper, heard him throw a cream pitcher and saw where it hit the wall, and on December 26, 1943, saw him slap her face. Once the boy grabbed his arms and kept him from hitting her with his fist. The husband says he has never, since a reconciliation in March, 1943, struck or abused her; he threw the cream pitcher at the wall, because he was so angry; if he had thrown it at her he would have hit her; he has thrown knives for the same reason, not at her but on the floor. A few days before June 15, 1944, a piece of one of her teeth was chipped off.

She says he threw a fork at her; he says she stamped on his instep with a high heel, he in pain grabbed her and threw her down, and her head or or mouth struck his head. Once, when he was in bed asleep (he says) or drunk (she says), she struck him across his bare back with a whip or belt. He says (she denies) she once stood over him with a butcher knife and threatened to cut his throat in his. sleep. On December 27, 1943, when she was in a highly nervous state, she went to his office with her son’s rifle, after first telling him she was coming “with a gun” and telephoning his brother-in-law (his counsel) that she was going to kill him.

The boy telephoned his father that the gun was empty and he had also set a safety device. We agree with the lower court in being unable to find “that she ever had any serious intention of carrying out these threats or that she ever on any occasion inflicted any injury of any consequence upon him.” ²³¹ It is unnecessary to labor, the question whether any acts of physical violence by the husband created “danger to life, limb, or health” which constitutes cruelty as a ground for divorce. Collins v. Collins, 184 Md. 655 , 42 A. 2d 680, 683 . The wife herself did not so regard his acts.

She left him on June 15, 1944, because of an episode concerning the corespondent. If the episode had not occurred, she would not have left. In 1942 the husband was away over the 4th of July. He and his wife had had a “spat” the week before; he imagines that is why she didn’t go along.

While he was away, she took the children to her sister Mrs. Jessie Bradley’s camp. Later that month she again took the children to the camp, for a week. He spent a night there. That night, she says, he told her he had had an intimate affair with a girl (he wouldn’t say who), but he loved only her and the children, would break the affair off, and did not want her to leave him; she said she would not leave if he promised to break off the affair.

He denies any such conversation. When she came back home, she says, she found lipstick on cigarette butts and towels; her bed and her cosmetics had been used. He says he and his brother-in-law spent a night there, the bed was then used and they fixed spaghetti with sauce. The corespondent is unmarried.

At the time of the hearing, she was 23; she had been employed four years, as secretary-bookkeeper, at Lazarus’s, a large “ladies’ exclusive shop.” This was her first job. Occasionally she “goes out on the floor and helps out if they are busy.” In 1941 (she says) she was standing on a street corner talking with a friend and the man (named Flick) whom the friend has since married. Schriver went past, stopped and talked to Flick and was introduced by Flick to the two girls. After that she would sometimes see Schriver when he was going back and forth to lunch, and they would speak.

Occasionally she would walk up the street with him on her way home. In that way they ²³² would see each other “sometimes once and twice a week, sometimes more.” In June or July, 1942 (she says) she met Schriver one evening after work; they were both walking the same direction, so they started talking. He asked whether she was employed, and where; she told him. He asked whether she would be interested in a job; she said, No, she was very well satisfied and wouldn’t think of changing.

He went on to say how hard-pressed he was for work in the office and no help to do it because so many had left on account of the War. So she offered to give her time in the evening; she said she was always free in the evening, and could work and would be glad to help him out. Accordingly she did extra work for him, at his office, from around July until September or October. She worked from 7 in the evening to 10 or 10:30 and was paid 50 cents an hour.

She worked on “dictation and * * * matters of the estate and compiled bills and checks” and went “all over that type of work.” Schriver and his brother-in-law, Mr. Edward J. Ryan (his counsel), are executors of his father’s estate. The estate has been in the course of administration since 1936; the first administration account, a three page paper, was passed July 7, 1944. A Miss Wintermeyer is Schriver’s secretary and also the secretary of his corporation. She has been employed by him five or six years.

He very often takes her with him to different places to audit the books of the different stores. Miss Flurshutz, a stenographer, also has been employed at his office since June, 1942. Schriver says: The corespondent was on vacation at Lazarus’s; she was working for him in the evenings, and during the days she would be off. On the evenings she worked for him, she worked while his girls were present.

She says, when she worked in the evening Miss Wintermeyer or Miss Flurshutz was always present; they too worked at night. Miss Wintermeyer did not testify. Miss Flurshutz says the corespondent was there when “we worked late one night.” This is the only evidence ²³³ (other than Sehriver’s testimony and the corespondent’s) that any other employee was ever there when the corespondent worked in the evenings. One night in June, 1942, after 10, Schriver’s wife saw him and the corespondent at his desk in the office.

His wife was to meet him at the office. She left before he and the girl left. She decided she didn’t want to go home alone. She returned to the office.

Schriver and the girl were then leaving in his station wagon. He told his wife to go home; he would be home shortly. She said, No, she was going to follow him, which she did. He took the girl to the post office, where she got out and went into the post office.

In August, 1942, Schriver says he was “summoned * * * to appear on an income tax case” of his father’s estate before the Internal Revenue Department in Baltimore. About August 10, 1942, he went to Baltimore and took the corespondent with him. He says he told his wife who was going and asked her to go along, and she refused to go; she says she was neither told who was going nor asked to go. He had to take the corespondent with him (he says) because “it was most essential that I had this assistance in compiling the voluminous report * * * comprising * * * a complete audit of my father’s estate, going back a number of years * * * prior to his death.” He had “had all the material worked up by an auditor,” who had since been called to military service.

The corespondent “did all the summarization” of the report, which comprised “bills, receipts, dividends, breakdown of dividends, assets, and so forth”; “after I dictated what to do, she typed it all up.” Miss Wintermeyer had done similar work before the War, but at that time “it was impossible to load any more work” on her. They went to Baltimore on a train that arrived there about 6 o’clock. They sat together in a day coach, and he “gave her dictation.” On cross-examination he said the only reason he took her was to “work on the train going down” and give her “adequate work to do the next day”; the only thing she was to do m Baltimore was to tran ²³⁴ scribe her notes, in longhand. The corespondent says he asked her to go with him because the case was “all on what I had been working on at the office, on the estate matter”; she was “really more familiar with the work” than he was because “she had been doing it on an average of three evenings a week.” The time of the trip was either her vacation or a Jewish holiday; they let her take her vacation whenever she wants.

In Baltimore, the say, they went to the Lord Baltimore Hotel, registered in their own names, were given separate rooms (not adjoining), had dinner together in the cafeteria, and never saw each other again until the next afternoon, when they met in the lobby and returned to Cumberland on the 4 o’clock train. He told her he had work to do in his room on the case, and “if she cared to go out anywhere or do anything, she could go ahead and do it” and he could call her the next morning. He went to his room, later came downstairs and had one or two highballs, and went to bed. She went to her room, worked in dictation for about an hour, transcribing it in longhand, then went window shopping and saw part of a moving picture.

The next morning Schriver called her, told her he was to appear before the Bureau of Internal Revenue at 9 o’clock and asked her to stay around the hotel, as it might be necessary to call her up and “refer to some of the estate work.” At 2 o’clock he telephoned that he had finished his job. Schriver says he “later stopped having” the girl “in his employ,” because of his wife’s “suspicious nature.” The girl says she ceased working for him because “the work of the estate was all finished by that time” and “at that time we were very busy down in the store and I often did work down there in the evening” and couldn’t continue to work for Schriver. One evening early in December, 1942, in the kitchen at the Schrivers’ home, Schriver had a conversation with his wife’s sister Mrs. Jessie Bradley, who lives in Baltimore. Mrs. Bradley says, he had something he wanted to tell her; he told her (among other things) he had ²³⁵ “deeply wronged” his wife, had been “unfaithful to her,” but in the future “was not going to do anything of that sort”; it was not anybody Mrs. Bradley knew; it was a girl that worked downtown; this affair had started in the early spring and proceeded through the summer, the girl had been very persistent, but recently he had had an understanding with her and it was ended; it was the girl he was with over the 4th of July, he had gone with her on a trip in West Virginia.

He called his wife out to join them and said (among other things), “I have told Jessie everything, and I have promised her from now on I am not going to drink after Junuary first, that I ani going to devote myself to you and the children.” His wife says he said, “I have told Jessie everything and told her that I had given up this girl; that I loved you and only you and wanted to do right by you.” Schriver says Mrs. Bradley came out to the kitchen while he was mixing drinks and asked how he and his wife were getting along and he said “We couldn’t be getting along better,” and at that moment it was true; she asked whether they had adjusted their differences, and he asked what, and she mentioned the 4th of July, and he told her everything, as far as he knew, was straightened out, and she then proceeded to ask his advice about a new job that she contemplated taking. He denies the statements ascribed to bim by his wife and her sister. On December 31, 1942, Schriver and his wife went to a New Year’s dance at Frostburg. They got home about 6.30 in the morning.

She stayed in bed until afternoon. He got up and left while she was asleep. When she got up, she went down to his office. The office was closed for the holiday.

She found the front door locked; she knocked and got no answer. Through a window she saw the corespondent’s coat, and a pair of gloves and a scarf. She also saw a back door open with Schriver’s station wagon in the back. She ran around, and the station wagon started.

Schriver held her and would not let her get in the office. While he held her the corespondent ran. ²³⁶ Schriver says he got up about 11:30 or 12 o’clock, and went down to the office, stopping for a cup of coffee. His wife came about 3. About “one or two o’clock,” he was walking to his office, and on the street met the corespondent and Flick, who were waiting for Mrs. Flick to finish her work at a hotel.

He invited them to come up to the office and have a New Year’s drink with him. They went, and drank a New Year’s Day toast. Flick*called up his wife to see whether she could join them; he then walked over to get her. There is no evidence, other than Schriver’s and the corespondent’s testimony, that Flick was ever at the office with them, and none at all that he ever returned or Mrs. Flick ever arrived.

Neither Flick nor his wife testified; Flick was overseas at the time of the hearing. Schriver admits that before New Year’s Day his wife had accused him of “running around” with the corespondent. On New Year’s Day, after finding him with the girl, his wife left him. On January 19, 1943, Schriver and his wife executed a separation agreement by which she was to have “the sole and exclusive custody, care and control” of the children and “of their education and bringing up during their minority” and “the exclusive use of the home” owned by Schriver, and he was to pay her $200 a month for the maintenance of herself and the children and also to pay all taxes, water rents, fire insurance premiums and any other public charges against the property.

In the event of a divorce, the agreement should be submitted to the Court, and if the Court should hold it had no jurisdiction, to incorporate in its decree any or all of the provisions of the agreement, the parties would nevertheless abide by and carry out all such provisions. From January 21 to January 30, 1943, Schriver was in a Pittsburgh hospital for treatment and a possible operation for sinus trouble. While he was there he wrote his wife a letter, postmarked January 25, 1943: ²³⁷ “My Dearest Lois, “It made me very happy to be able to talk with you today on the phone, to learn that you and the children are alright. You know this is the first letter that I have written to you for many, many years and it seems kina funny in a way.

Any way I mean every word when I call you my Dearest. I am