Simmont v. Simmont

Offutt, J., delivered the opinion of the Court. The parties to this proceeding were married on July 21st, 1916, and lived together as husband and wife until August 17th, 1929. On that day the husband, George V. Simmont, left the common domicile, and since then has lived apart from his wife. On October 22nd, 1929, Mrs. Simmont filed in the Circuit Court of Baltimore City her bill of complaint against her husband, in which she alleged that he had abandoned and deserted her; that the abandonment was deliberate, final, and beyond any reasonable expectation of reconciliation; that, while her husband earned $35 per week, she, except for $8 pier week which he paid her for the support of herself and'her infant child, was destitute, and she prayed that she be declared to be entitled to receive by way of permanent alimony an allowance of her husband’s estate proportioned to his earnings and station in life.

The defendant in his answer admitted the marriage, and admitted that he did earn $35 per week, but denied the desertion, and on October 29th, 1929, he filed a cross-bill charging his wife with adultery, praying an absolute divorce, and asking for the custody of their two minor children. She denied the charge of 'adultery, the case was tried on those issues, and ⁴²⁵ at the conclusion of the trial the chancellor granted the relief prayed in the original bill, and dismissed the cross-bill. This appeal from that decree presents three questions: (1) Was the evidence sufficient to support the decree for permanent alimony? (2) Did it support the husband’s charge of adultery? and (3) Was the decree in proper form?

It is the settled law of this State that a decree for permanent alimony may not be granted except upon grounds sufficient to support a decree for a divorce a vinculo matrimonii or a mensa et thoro. Outlaw v. Outlaw, 118 Md. 498 , 84 A. 383 ; Silverberg v. Silverberg, 148 Md. 691 , 130 A. 325 ; Melson v. Melson, 151 Md. 205 , 134 A. 136 ; Wendel v. Wendel, 154 Md. 20 , 139 A. 573 . There is no contention in this case that the husband has been guilty of conduct which would entitle the appellee to a divorce a vinculo matrimonii from him, but she rests her claim to relief solely upon the charge that he abandoned and deserted her without just cause. And, since “abandonment and desertion” are sufficient to justify a divorce a mensa et thoro (Code, art. 16, sec. 39), that charge, if proved, is sufficient ground for a decree for permanent alimony.

The phrase “abandoned and deserted” has repeatedly been construed and interpreted by this court, Buckner v. Buckner, 118 Md. 113 , 84 A. 156 ; Muller v. Muller, 125 Md. 76 , 93 A. 404 ; Hubbard v. Hubbard, 127 Md. 620 , 96 A. 860 ; Polley v. Polley, 128 Md. 62 , 97 A. 526 ; Crouch v. Crouch, 150 Md. 608 , 133 A. 725 ; Miller v. Miller, 153 Md. 213 , 138 A. 22 , and has uniformly been held to mean an actual severance of the matrimonial cohabitation, coupled with a fixed and deliberate intention on the part of the offender to terminate the marital relation. And, where such a separation was not caused by any default or wrongful conduct on the part of the one abandoned, and where there has been no offer by the erring spouse to resume cohabitation, made under such circumstances as would warrant a reasonable belief that such relations could be resumed without endangering the health or reasonable comfort of the innocent spouse, it is sufficient ground for either a divorce a mensa et thoro or ⁴²⁶ permanent alimony. Schwartz v. Schwartz, 158 Md. 80 , 148 A. 259 . It is undisputed that the appellant actually left the common domicile, so that appellee’s right to the relief prayed in her bill depends upon (a) whether his abandonment was justified (Nickel v. Nickel, 150 Md. 702 , 137 A. 915 ) ; and (b) whether she wrongfully refused to resume the suspended cohabitation.

Downs v. Downs, 154 Md. 430 , 140 A. 831 . While the evidence relevant to- the first of those issues is not wholly convincing, the proof offered by the wife was sufficient, if uncontradicted, to show that Simmont in fact, without sufficient justification, actually left the common domicile with the fixed and deliberate intention of terminating marital relations with his wife, and the burden was then upon him to' go forward and overcome that proof by showing that he was justified in such abandonment. Keezer on Marriage and Divorce, sec. 511; Hamilton v. Hamilton, 87 W. Va. 534 , 105 S. E. 771 . The chancellor decided he did not do that, and while, as he had both the parties and the witnesses before him, his finding; on that issue of fact, which depended so largely upon the relative credibility of the witnesses, should not be lightly disturbed (Gimbel v. Gimbel, 148 Md. 187 , 128 A. 891 ; Sporrer v. Ady, 150 Md. 70 , 132 A. 376 ; Pattison v. Brydon, 150 Md. 584 , 133 A. 328 ; Moran v. O’Brien, 156 Md. 222 , 144 A. 257 ), yet it is in no sense conclusive, and, where it is clearly erroneous, it will be set aside.

Moran v. O’ Brien, supra. WThile there were mutually recriminatory charges of abuse, offensive language, threats, and even personal'violence, made by the parties in the pleadings and the evidence, it is sufficient to say that the evidence failed to support them, and they may be disregarded. The substantial grounds upon which Simmont relied as an excuse for his abandonment of his wife were: (1) That she was improperly intimate with one William Baleigh, and that charge is also the basis of his cross-bill; and (2) that she had abandoned and deserted him, Simmont. ⁴²⁷ Raleigh and Simmont met for the first time in a barber shop in 1926. Simmont was employed by James S. Stallings, a public weigher, and Raleigh was by occupation an upholsterer.

They were both married. Raleigh had three children and Simmont two, and they seem to- have lived in the same neighborhood. From the first, Raleigh and Simmont appear to have been drawn together by a common interest in religion. Raleigh professed to be an “evangelist,” and Simmont, while he did not offer himself as a teacher or a preacher of religion, took a somewhat active part in religious work, and, although he is said to have- been a “Catholic,” at one time or another, aided in the work of Baptist and Congregational churches and also the evangelistic work of Raleigh.

Shortly after he met Raleigh, he invited him to preach “at a Congregational Church” in Canton. Later he met' him again at a “Revival Meeting” at a Baptist mission. As a result of the friendship between the two men, their families were often together, they became friendly and even intimate, and -on one occasion, when Mrs. Simmont was ill, Mrs. Raleigh attended to her work for about a week, and then Mrs, Simmont was carried to the Raleigh home, where she remained for about five weeks longer. Finally, in February, 1928, the Simmont and Raleigh families moved together into a house in Canton, which they used both as a dwelling and a “Mission.” The following description of the property is accurate: “The lower floor and the two front rooms on the second floor were occupied by William Raleigh and his family.

The rear rooms of the second floor and all of the third floor were occupied by the Simmo-nts. The store front- was used by a Gospel Mission in which both families were interested. A stairway led from the center of the first floor to- the center of a hall leading along the whole east side of the second floor. The- s-tairway to the third floor led from the front end of the hall on the second floor adjacent to the bedrooms, of the Raleighs- (the two front rooms on the second floor).

There was also a stairway from the front directly to the second floor landing on the said second floor hall.” Appellant’s brief. ⁴²⁸ For a time the two families lived there in apparent harmony. Simmont aided Raleigh in conducting the mission, the two- wives assisted each other in their respective house* hold duties, and the relations between the families became very informal and intimate. Eventually, however, discord crept in. Quarrels and fights between the children led to differences between the parents, the evangelical activities of Raleigh palled on Simmont, and he went elsewhere for spiritual comfort, and at the same time began to view with jealous disapproval the growing intimacy between his wife and Raleigh, and eventually, according to the testimony of Raleigh, Simmont formed a liason with another woman whose importunities threatened to disrupt his relations with his wife.

Simmont fixed the time at which the controversy between him and his wife, which culminated in their separation, began, as the early part of April, 1929. He testified that on April 3rd he came home from church at about 10 o’clock in the evening, and found his wife in Raleigh’s kitchen crying; 'that on April 5th,'when he came home from choir practice, he found the outer door fastened, and that when he rapped for admission Raleigh, who was partly undressed, came down and opened the door, and that he, Simmont, at once went to his wife’s bedroom, and found her preparing for bed in the room with her little girl, who was in bed, and that his wife was “out of breath”; that, on June 6th, the witness said: “I snuck down and peeped through the keyhole and my wife was leaning over Mr. Raleigh who was then laying on his couch. She raised up and never even looked at me. She said to me, What do' you want?

I did not know how she knew it was me or anything about it. She asked me what did I want and I said I just wanted to see where you were”; that on April 13th, while Mrs. Raleigh was away from home, he saw his wife come from Raleigh’s bedroom; that on another occasion he heard Raleigh ask her to “kiss him,” and finally, that, on August 17th, when Mrs. Raleigh was leaving for a trip' to Cambridge, Md., his wife placed in Raleigh’s “ice box” some articles of food which she had bought on ⁴²⁹ Simmont’s credit; that on the same occasion his wife went into Raleigh’s dining room, which was dark, and, when he called her, she refused to> answer him. After this last incident, Simmont packed his clothes, and with his son, Vernon, left the house, and since then has lived apart from his wife. Simmont further testified that he asked his wife to leave the Raleigh home, hut that she refused to do so.

Simmont’s testimony was corroborated by his son, Vernon, aged fourteen, who testified that on one occasion he saw his mother “go through” Raleigh’s bedroom and heard them “talking and moving around”; Mrs. Lottie G. Taylor, aged sixty-eight, a visitor, who testified that on an occasion when Mrs. Simmont was ill in bed she found Raleigh sitting in a chair beside her bed with “his. face in her face” as if they were talking with each other, and