Schwartz v. Schwartz

Oeeutt, J., delivered the opinion of the Court. The parties to this appeal vrere married on June 29th, 1921. The appellant, Henry C. Schwartz, a widower with grown children, lived in Baltimore, where he carried on a wholesale and retail kraut and pickle business, had acquired some property, and received from his business and his property a comfortable income. Viola O. Schwartz, the appellee, was a widow', also with grown children, with whom she lived in her own home on Henrietta Street, in Baltimore.

They met during the lifetime of the appellant’s first wife, who was for some years prior to her death an invalid, apparently confined to her home, and, while there is nothing in the evidence to justify the conclusion that at that time they were anything ⁸² more than friends, they were at least very close friends, often together, and, not long after the death of the first Mrs. Schwartz, they were married. Although they both lived in Baltimore at the time, they were married in Philadelphia, and their marriage was apparently not announced until the following September, when he and his children and she and her children went to live in the appellee’s home, and on September 30th, 1922, Vivian O. Schwartz, the only child of the marriage, was born. As might have been expected, the compulsory association of the members of these ill assorted families was neither happy nor harmonious. Schwartz’s children apparently believed that the relations between Schwartz and the appellee, which culminated in their marriage, had begun and continued while his first wife, their mother, was confined to her bed by the illness which finally resulted in her death, and not unnaturally they resented that, and they disliked her.

She on her part appears to have done little to conciliate them, so that from the beginning there was much bickering and ill feeling between appellee and Schwartz’s children. They reproached her for her relations with their father during their mother’s, life, and she upbraided them for their disrespect; they quarreled frequently, and finally, acting, she said, on the-advice of her physician, she asked Schwartz to take them away. Accordingly, in January, 1922, Schwartz established, them in another home, although he continued to live with his wife in her home until December, 1923, when he, too, finally left her home. For a time after he left he allowed her ten dollars a week for her support and that of their child, but in. the latter part of the year 1924, alleging that he had threatened to reduce that allowance, she had him arrested for nonsupport.

In obedience to an order passed in that proceeding he paid her from that time on $15 a week for the support of herself and her infant child, but she continued to live apart' from her husband, and on January 20th, 1926, she filed the bill of complaint in this proceeding against him. In that bill she alleges that he abandoned her and her infant child,, ⁸³ and prays that she may be divorced a mensa ei thoro from him, that he may be required to pay permanent alimony for her support and also for the support of the child, and that the custody of the child be awarded to her. In due course Schwartz answered the bill, denied that he had abandoned his wife, and later filed a cross bill against her, in which he prayed that he might be divorced from her on the ground that she had abandoned him. She in turn denied so much of the cross bill as charged her with abandonment, and the case was tried in open court on those pleadings.

At the conclusion of the case the court dismissed appellant’s cross bill, and decreed that the appellee be divorced a mensa et thoro from the appellant, that he pay her $15 a week alimony, and that she have the custody of their infant child, subject to the appellant’s right to visit and be with him at seasonable times and places. This appeal is from that decree. Assuming that the appellee was entitled to any relief at all, neither the propriety of the amount allowed for alimony, nor the award of the custody of the infant child of the parties to the appellee, were questioned in this court, but the sole question presented is whether the trial court erred in finding that appellant had abandoned his wife. Under Oode, art. 16, sec. 39, a divorce a mensa et thoro may be granted where the erring spouse has been guilty of (1) cruelty of treatment, (2) excessively vicious conduct, or (3) “abandonment or desertion.” Abandonment has been ■defined to mean the voluntary, unjustified, and final separation of one of the married parties from the other, accompanied by an intention to terminate the marital relation (Buckner v. Buckner, 118 Md. 113 ; Keezer on Marriage and Divorce, sec. 326; Muller v. Muller, 125 Md. 76 ; Hubbard v. Hubbard, 127 Md. 620 ; Polley v. Polley, 128 Md. 66 ; Young v. Young, 136 Md. 85 ; Klein v. Klein, 146 Md. 29 ; Miller v. Miller, 153 Md. 218 ; Daiger v. Daiger, 154 Md. 503 ), or an unjustified refusal to resume suspended cohabitation.

Buckner v. Buckner, supra. The fact that Schwartz actually left the home in which he was living with his wife, and which she owned, and event ⁸⁴ ually went to live with his children in the home which he owned, is undisputed, so that the inquiry is whether, under the circumstances, of the case, (1) in so separating from his wife he intended to terminate the marital relation, (2) whether his act was justified, and (3) whether she was justified in refusing to accept his offer (assuming that it was made) to resume marital relations with her if she would come to live with him in his home with his children. There can be little doubt that the disposition which the trial court made of the case would best promote the happiness and welfare of the parties to this appeal, but, since its right to grant that relief is challenged, the propriety of its decree is not to be measured by such considerations, but by the limits of the power which the legislature has granted to-it in dealing with such cases, as that grant has been construed by this court. So that the question presented to the trial court was, not what would .best serve the interests of the parties to the cause, but whether the evidence proved a ground for divorce under the statute.

The evidence relating to that issue is dot only conflicting but is vague, indefinite, and confused, both as to dates and incidents, and the only facts which emerge from it with reasonable certainty and clearness-are that Schwartz did leave his wife’s home, that since December, 1923, they have been living apart, and that it is. impossible for Mrs. Schwartz and Mr. Schwartz’s children by his first wife to dwell together amicably. Mrs. Schwartz, testifying in her own behalf, said that prior to September, 1921, Mr. Schwartz suggested that he bring his three children to live with him in the house which she then owned, that she consented, and that Mr. Schwartz, and his three children moved into her house, which she and her three children then occupied; that the Schwartz children ignored her, kept to themselves, failed to introduce her to such friends as happened to visit them, were disrespectful to her, and were so disagreeable and unpleasant in their manner that, acting upon the advice of her physician, she asked Mr. Schwartz to take them away until her baby was born; that he ⁸⁵ did in January, 1922, take them away; that after her baby was born she asked him to bring them back, but that he reported to her that they refused to return. AYhiJe neither of Air. Schwartz’s children admitted that they were in any way to blame for the unpleasant relations between them and Airs.

Schwartz, nevertheless their testimony tends to corroborate much of what she said in regard to their conduct towards her. Alildred Schwartz, the oldest daughter, said that on one occasion, after an altercation over some household work, she had told Airs. Schwartz “that she was no lady; if she had been she wmild not have gone with my father when my mother was still living; and that led to an argument. She tried to push me out of the door and I held on to the refrigerator.

Q. How do you know she went with your father while your mother was still living? A. On several occasions my sister followed my father down to her home.” Thelma, the younger daughter, also testified that Airs. Schwartz nagged and abused them, and said that on one occasion “there was some argument over some trifling matter; 1 would not do wrhat she said, or something, I supposed, and she grabbed hold of me and tried to choke me, and I shook her away, and on another occasion I was on the back porch and she wanted a little girl to disobey her mother— the little girl’s mother wanted her to watch for her father to come home from work; she told Virginia to watch for her father, and Airs. Schwartz wanted her to go to the store, and there it was some more talk about that, and I told the little girl if her mother told her not to go that she should not go, and Airs.

Schwartz came out and slapped me, and I started to go down to the factory to my father, and when I got there she had already called up and told my father the whole story, so I stayed there until supper time, when I came up with my father. They would not even let me practice on the piano.” And Alildred Schwartz further testified that after they had left the Henrietta Street home “on one occasion when she came down and wanted us to come hack to live together. ⁸⁶ ■She came down and asked if I would be willing if she would ■come down and live with us, and I said that we were living happily, and that if she would come down that I would not stay there because we had such contention when we were living with her, that I would not be willing to try it over again, that I would not stay at all. Q. So you agreed to leave if she came to the house ? A. Yes, she said if I would be willing, that she would do everything in her power to make things different.

She said that she had not done right by us when we were all there, and she would try to do better. Q. You said if she would come you would leave? A. Yes, it had just gotten on my nerves being up there.” Mrs. Schwartz further testified that after the children left Schwartz continued to1 live with her at her home until December 25th, 1923, but that, after his children had refused to return to Mrs. Schwartz’s home, he became “grouchy,” was always ready to “start an argument,” repeatedly threatened to leave her and her baby, was never at home in the ■evening, never took her out, that he asked her for a separation; that in June, 192J (after the separation), she asked him if there was not some way in which they could be happy together, and that he said: “There is only one thing that can be done, you go and give in to my children if they are willing,” and “then I said, ‘Very well,’ and I went down to the place where he was living at the factory, Belmont Avenue, .■and I asked to see the oldest girl, and she came down, Mildred, and I asked her if she would not forgive and forget .any malice they held against me, and let us all live together and be happy, and she said, ‘That can never be done.’ I .asked her why, and she said, ‘ Just simply because we cannot live together, we are all happy here, why make a change?’ "With that her father stepped rtp on the porch and he asked me how I made out, and I said, ‘Just the same as ever, they won’t give in.’ He said, ‘You see they won’t give in, and I ■cannot do Avithout them,’ and he said, ‘Why not give me a separation,’ and his daughter spoke up and said, ‘Father, if you bring your Avife back to live, Roland will leaAre,’ and ⁸⁷ lie said, ‘You see- I cannot do without them,’ and I left and went home.” That after that she saw nothing of him until the following September, when he came to her home to see the baby. That on that occasion, after1 talking to the baby,, he said to her, “Don’t you intend to give me a separation ?” “and I said, 'Ho, I don’t.’ He said, 'I am nothing to you.’ I said, 'You are my lawful husband.’ He said, '1 have never treated you as a husband and never intend to.’ And my son hollered down the steps, 'Don’t let him talk to you in such a. way,’ and he went to the steps and hollered, 'If you are man enough, come down here and put me out.’ And my son came down and put him out on the porch.” Vernon Eney, Mrs. Schwartz’s son, whoi happened to be asleep- at her home at that time, testified that the- loud talking waked him, that he heard Schwartz ask his (witness’) mother to give him a separation and that, when she refused, Schwartz said: “Well, why not, you are nothing to me?

I have never treated you as a husband and 1 never intend to, and the language- he