Singewald v. Singewald

¹³⁸ Os’I'utt, J., delivered the opinion of the Court. Eleanor Smith and Elmer H. Singewald were married on November 14th, 1917, by a Presbyterian minister in Bel Air, Maryland, and, except for occasional intervals of short duration, lived together as husband and wife until October 19th, or 20th, 1932, when they separated. There were two children of the marriage, Eleanor and Ruth, who were, at the time this suit was brought, aged thirteen and twelve years, respectively. For some time prior to that date, the relations between Mr. and Mrs. Singewald were far from harmonious, and on October 26th, 1932, she filed against him in the Circuit Court of Baltimore City the bill of complaint in this case, in which she charged that his conduct towards her had been so cruel, brutal, and vicious that she had been forced to- leave him, and in which she prayed that she be divorced a mensa el thoro from him; that she be awarded the care and custody of their two infant children; that she be allowed alimony pendente lite and permanent alimony.

The defendant answered, denied the charges and alleged that his wife had abandoned and deserted him without just cause. The case was tried upon those issues, and on January 31st, 1933, a decree was entered in which the- court dismissed so- much of the bill as prayed a divorce, allowed the plaintiff a counsel fee of $600, and further decreed that “the custody of Eleanor Singewald and Ruth Singewald, infant children of the parties hereto be- and it is hereby awarded to- Eleanor Smith Singewald, with the right to Elmer H. Singewald to have said children every other week end from one-thirty P. M. Saturday until seven P. M. Sunday, he, the said defendant, to pay all traveling costs incident to the week-end visits of the children to him; the said Elmer H. Singewald, defendant, to pay to- and unto the said Eleanor Smith Singewald the sum of twelve dollars and fifty cents ($12.50) a week for each child, emergency and extraordinary expenses, such as doctors’ and dentists’ bills, to be in addition to the weekly allowance provided; this court retaining jurisdiction over said children.” ¹³⁹ From so much oi the decree as in part dismissed the bill, the wife appealed, and from so much thereof as awarded the custody of the children to the mother and allowed her a counsel fee, the husband appealed, and those three appeals are submitted by this record. No point was made in this court, either in the oral arguments or the briefs of appellant, as to the allowance of a counsel fee to Mrs. Singewald, and the appeal from so much of the decree as dealt with that question will be treated as abandoned, so that there remain in the case two questions, (1) whether the court erred in denying Airs. Singewald a divorce a, mensa et thoro and (2) whether there was error in so much of the decree as dealt with the custody of the children.

The learned chancellor who heard the case, in a very careful and discriminating opinion, reached the conclusion that the evidence was not sufficient to justify a decree of divorce, and accordingly dismissed so much of the bill as prayed that relief, and, since the parties were in fact actually separated and it was necessary to make some disposition of the children, he reached the further conclusion that under all the circumstances, in view of their age and sex, it was appropriate and for the best interests of the children themselves that their custody be awarded the mother, reserving to' the court jurisdiction over them, and reserving to the father the right to have them “every other week end from one-thirty P. M. Saturday until seven P. M. Sunday. With so much of the decree as denies the divorce and awards the general custody of the children to the mother, we are in entire accord, and in view of that opinion it would serve no useful purpose, but would be needlessly embarrassing to the parties, to review in detail in this opinion the- voluminous and recriminatory evidence found in the record, and we will therefore merely state our conclusions in respect to it. The case was ably presented to this court, but in strict accord with the conventional traditions of our system of litigation, under which each side assumes the infallibility of favorable witnesses and the fallibility of adverse witnesses, leaving to the court to discover as best it may the truth which ¹⁴⁰ lies somewhere between those extremes. In dealing with so much of the case as relates to the prayer for a divorce the court is aided by the rule that one holding the affirmative is under the burden of proving it, while in dealing with so much of the decree as relates to the custody of the children it is aided by no rule or presumption other than that some positive weight must be given the conclusion of the chancellor who had before him the witnesses, and who had therefore in determining the credibility of their testimony opportunities of observing their demeanor and attitude denied to this court.

The wife’s complaints as to cruelty may be classified in respect to two periods: one, prior to October, 1919 ; the other, subsequent to that date. Whether the acts and conduct of which she complained and which occurred prior to October, 1919, were sufficient in themselves to constitute legal cruelty, as defined by this court in such cases as McKane v. McKane, 152 Md. 516 , 137 A. 288 , and Short v. Short, 151 Md. 444 , 135 A. 176 , need not be considered or decided in this case, for, whatever the effect of such acts and conduct may have been, they were condoned by the wife. As a result of her husband’s alleged cruelty, Mrs. Singewald in October, 1919, left his home, carrying with her their infant child, and went to live with her mother in Bel Air, and shortly after that brought a suit for a limited divorce against him on the ground of cruelty. After that, at his request, she returned to his home, lived with him as his wife until October, 1932, throughout that entire period had marital intercourse with him, from time to time left his home because of cruelty of which she now complains, and, after each separation, returned, and after each return resumed marital intercourse with him.

Such conduct amounts in law to a condonation of offenses occurring prior to October, 1919. For while condonation is based upon an implied promise that the erring spouse will not repeat the injurious offenses, nor be guilty of other misconduct which would render the continuance of the marital relation intolerable to' the injured party, and upon the implied condition that a breach of the promise revokes the condonation (Keezer on Marriage and Divorce, sec. 425: ¹⁴¹ 9 R. C. L., “Divorce and Separation,” sec. 177; 19 C. J. 87; Duckett v. Duckett, 143 Md. 556 , 123 A. 55 ), there must of necessity be some limitation to that rule. And where the offenses sought to he revived are so remote in point of time, and the conduct of the parties has been of such a character that no rational conclusion can he reached other than that the complainant has finally and unconditionally surrendered any and all rights to complain of such offenses, they may not he revived as a separate and sufficient ground for divorce (Duckett v. Duckett, supra; Daiger v. Daiger, 154 Md. 505 , 140 A. 717 ), although they may he considered in determining the quality and significance of defendant’s subsequent conduct. For, as stated in a quotation from McFarlane v. McFarlane, 11 Scotch Sess.

Cas., 2nd Ser., 633, found in Bishop on Marriage, Divorce apd Separation, sec. 304: “Although acts of violence committed at an earlier period, and .which have not prevented her from living with him, or going hack to him after they have been separated, cannot he made the sole foundation of an action of separation, they may form the subject of investigation, and proof with a view to determine what is the true issue of the case; namely, whether the wife can with safety to person and health live with him now. Because not only do they afford an indication of what the man’s temper and 'habits are, hut they also show what may he the result of still continuing to live with him if there have been acts of recent occurrence, although these may not be of the same aggravated type. In the words of Lord Jeffrey in another case, ‘the last drop makes the cup of bitterness overflow’.” As is not unusual in cases of this character, the key to the case as well as to the evidence lies in the varying viewpoints of the parties, and in the failure of each to allow for the peculiarities of the other. Each expected of the other a degree of tolerance, forbearance, and submission which neither yielded to the other, and each measured the other’s conduct by a standard which neither regarded as binding himself or herself.

Consequently every slip, every fault, every harsh word or inconsiderate act was noted and preserved with that ¹⁴² intense and unyielding bitterness wbicb so often reaches its flower in domestic litigation. The parties themselves are respectable people, of far more than ordinary intelligence, devoted to their children, and both honestly no doubt made some effort to preserve the home and to promote the happiness of themselves and their children. Singewald is an intense, self-centered and ambitious man, who has by thrift, industry, and energy won a substantial and respectable place in the business world. He has a number of irritating antipathies, which include coffee, patent leather shoes, and his mother-in-law.

He has some capacity for vivid invective, insistent, not always with success, upon supreme authority in his home, and, either as the result of business training or domestic experience, he early discovered the futility of engaging in oral debate upon domestic questions with his wife, and would commit his emotions to paper in the form of letters or essays, which he either sent or handed to her. He had few interests outside his home, he provided in a material way for his family, he was devotedly attached to his children, and he had a commendable consciousness of his civic duty. He was active in church work and interested in the religious education of his children. His treatment of his wife, however, was not so happy.

His habit of writing what he might have spoken was no "doubt irritating to her, in view of the fact that he was not always present when she read the letters, and had no opportunity of commenting upon his comparison of her antecedents, qualities, and conduct with his own, a comparison which rarely flattered her. He has, apparently, deliberately and intentionally so arranged his property so as to exclude her as far as possible from participation therein, he has at times been rudely inconsiderate of his wife’s natural affection for her mother, and his language to her was at times abusive and insulting. Mrs. Singewald has been a devoted mother, and in many ways a faithful and loyal wife. Eor many years she performed all of her household duties without assistance, was thrifty, economical, and industrious, and while she did not ¹⁴³ suffer the peculiarities of her husband gladly or with noticeable patience, she nevertheless did put up with them until their final separation.

She, too, had no inconsiderable talent for biting repartee, and, while her husband complained of her in letters addressed to her, she complained of him to lawyers. She was not always frank with him, she at times disregarded his wishes in training the children, and at times deceived and misled him as to debts contracted on his credit. The wife in her bill alleges no specific instances of cruel or vicious conduct, but in her testimony it appears that she relies largely upon several alleged acts of physical violence, most of which are said to have occurred prior to October, 1919, and upon tbe husband’s general course of conduct. Mrs. Singewald herself testified that on a number of occasions her husband had subjected her to- physical violence and indignities, hut, except as to' two or three instances, her charges were denied by the defendant and wholly uncorroborated.

And if her testimony as to those instances is accepted as true, the acts of which she complains were not of such a character as to constitute cruelty, as defined in Short v. Short, supra, or to constitute the basis for a divorce a mensa el thoro. McKane v. McKane, supra. They occurred many years ago, carried no threat of actual physical injury, were obviously not premeditated, and apparently, until this suit was instituted, were not regarded seriously by Mrs. Singewald. She also testified that her husband was opposed to her having children, suggested that she prevent it, and on one occasion when she was pregnant advised her to have an abortion performed.

But those charges are not supported by the record. Her statement as to what he said to her is not corroborated, it is undisputed that Singewald is devotedly attached to his children, and the highly respected physician who was consulted by Singewald in connection with his wife’s condition testified that at that time Mrs. Singewald was suffering' from the consequences of an attack of pleurisy, and that the question which was submitted to biin was whether suffering her pregnancy to mature would he physically injurious to her in her condition. ¹⁴⁴ Einally, she said that she left her home because she was afraid that her husband would harm her or their children, and she alleged as a reason for her statement that her husband told