Stewart v. Stewart

Smith, J., delivered the opinion of the Court. This is a divorce action in which Dorothy Stewart, the wife and appellee, was awarded a divorce a vinculo' matrimonii from the appellant and husband, Clark Stewart, by a decree filed December 16, 1968. Her original bill of complaint prayed for divorce a mensa et thoro.. That bill was filed on July 13, 1966, after the separation of the parties on July 3, 1966.

In the course of the travels of the case through the Circuit Court for Montgomery County permission was granted to Mrs. Stewart to file' a supplemental bill of complaint for a divorce a vinculo matrimonii. In addition to divorce, Mrs. Stewart was awarded the custody of two of the minor children of the parties, to ²⁷⁴ :gether with an award for alimony and counsel fees and a direction that the husband pay the arrearages determined to be due under the prior order of the court for alimony pendente lite and support for the minor children. The husband here appeals alleging that the chancellor (Moore, J.) erred (1) in granting the divorce on the basis of constructive desertion, (2) that the attorney’s fee awarded was excessive, (3) that the sum awarded for alimony for the wife and for the support of the minor children was excessive, and (4) that he was entitled to ■certain credits relative to the order pendente lite for the .support of the minor children. We shall modify slightly the award of counsel fees and affirm the chancellor on fhe remaining points.

The parties were married on February 8, 1948. Five ■children were born as a result of the marriage. The oldest son is now 21 years of age. Two of the other sons are .now 19 and 16.

A third son will be 15 on January 5, 1970. A daughter is 13 years of age. The custody of the •daughter and the youngest son was awarded to the mother. The father was awarded the custody of the other three children.

Mrs. Stewart related an incident which took place in the fall of 1965. She and the husband were occupying .separate bedrooms. He slept in the basement and she in one of the upstairs bedrooms. He went in her bedroom, turned on a light, and aimed a gun at her.

He directed that she follow him downstairs, which she did. They sat -on the end of his bed in the basement. He held the gun .in his hand as they talked. She said: “After awhile I wasn’t sure whether he was going to shoot himself or shoot me, but I thought he could easily do either one any moment.

Finally, after several hours of talking, he just suddenly told me to go back upstairs—so I left.” ■ Mrs. Stewart related another incident when they had .an'■ argument on a Sunday afternoon. Her husband hit ²⁷⁵ her and knocked her down. He then took her to the basement, tied her up and left her on the bed while he took the children to the swimming pool at the “Y”. Upon his return he had sexual intercourse with her and then untied her.

Subsequent to the above incidents which took place around the first of September, 1965, Mr. Stewart moved out, taking an apartment elsewhere. He returned in January of 1966. Mrs. Stewart claimed that the return was not by mutual agreement, but by her husband’s announcing that he was moving back. Stewart does not deny the gun incident.

He merely says that he invited his wife rather than ordering her and that he did not aim the gun at her. He claims the gun was unloaded. When Stewart returned to the home in January of 1966 the parties remained together only about three weeks. An argument developed at the dinner table.

Mrs. Stewart threw half of a cup of coffee at him. He gave her 15 minutes to make up her mind—she could get out or he was going to throw her out. Mrs. Stewart got out, taking refuge at the home of her father-in-law. Upon the death of the father-in-law, about three weeks later, she moved back to the home previously occupied by Mr. and Mrs. Stewart.

She remained there until the incident which brought about the final separation on July 3, 1966. On July 3, 1966, Mrs. Stewart permitted the oldest son to go home from church with his aunt to do some work for the aunt. An argument apparently ensued when Mrs. Stewart reached home from church and told her husband the whereabouts of the son. Unfavorable comments were made relative to Mrs. Stewart’s family.

By his statement, Mrs. Stewart ridiculed him and said he was “just being sick”, which he claims to have been a favorite expression of hers alluding to his prior treatment at a mental institution. His version of the incident from there is: “She was sitting in the chair and I had heard this many times before and she knew it. It got ²⁷⁶ under my skin and I just somehow or other didn’t like standing up and talking down to her. I reached down and put my hand in the neck of her blouse and I used her blouse to lift her up with so that she would be at my level in talking to her.

Well, her weight was too much and the blouse ripped and, being extremely frustrated, this was just about all I needed, so I did like this and ripped the rest of it off. At this point I guess I just felt frustrated. I turned away and I didn’t do anything more. She got up and she started up the stairs and she said something about my being childish and I didn’t say anything and she started on up and stopped halfway up.

She said, ‘Are you happy now, little boy, does that make you feel better?’, and I still didn’t do anything and finally she said, ‘Well—if it makes you feel any better, I have got a whole closetful of clothes, you can tear them all off.’ That did it. I couldn’t take it anymore, so I said, ‘All right, you put them on and I’ll tear them off.’ And so I followed her up the stairs and I closed the door for the children were in the house, although I don’t recall that they were present at this time. She did put on a blouse and I did tear that one off. About that time Larry came in and I turned around and I told him that he should not concern himself, that his mother was in no danger, that this was something between her and myself and that he shouldn’t get involved.

Well, he refused to leave. I repeated this at least two or three times. Finally, he jumped on me and started wrestling with me and, to my knowledge, she did not call the police. She refused to.

I asked that she do so, but she refused to. I was on the phone talking to the police at the time she and Larry left and I called them both to come back, but they did not do so.” ²⁷⁷ Mrs. Stewart and Larry went to the YMCA where they spent the afternoon and then went to a friend’s apartment where they spent the night and some weeks thereafter until other living arrangements could be effected. Mrs. Fox, the friend to whose apartment Mrs. Stewart went, testified to the fact that Mrs. Stewart and her son came to her apartment on July 3. She said they were both upset.

There were bruises observed by Mrs. Fox on Mrs. Stewart’s arm. On an occasion subsequent to the separation (New Year’s Eve of 1966) Mrs. Stewart said her husband visited the apartment of his wife, accused her of taking two of his records, searched the apartment for the records and then beat her in the stomach with his fists when Mrs. Stewart 'cried to stop his search. He told her nobody would be able to see the bruises. Stewart is employed by UNIYAC Division of Sperry-Rand Corporation.

His gross salary is $199.60 per week with a “take home” pay of approximately $151.62. He also receives through the Civil Service Commission disability payments from the federal government. He described these as, “Something under $4000.00 — I don’t know the exact amount at this time, under $400.00 a month.” The Register of Wills for Montgomery County produced records indicating that Mr. Stewart and his sister are the sole heirs of Mr. Stewart’s father. The real estate of the father was appraised at $42,000.00 and the inventory of the personal estate was shown to be $230,-154.60, including securities appraised at $193,575.70 and cash in banks and savings associations of $36,570.31.

Mr. Stewart also receives $35.62 per month by way of rental income, his share of the rent from the home of his father after deduction of a fee for the person collecting. At the time of trial he was receiving $28.00 per month on an annuity taken out by his father, there being an indication that that would run out sometime in 1969. Mrs. Stewart is employed as a part-time secretary. ²⁷⁸ Her net earnings are $135.00 each two weeks. She stated that the home in which she was living at the time of trial was owned by her mother.

Mrs. Stewart had free use of the house except for the obligation to pay for utilities. The parents paid taxes and mortgage payments. Mrs. Stewart said she had made no computation based on having two children with her. She felt with all of the children that she would require $500.00 to $600.00 per month.

Her actual computation of monthly expenses for herself and five children was as follows: Food ..................................................... $150.00 Gas and heat for house ....................... 25.00 Electricity ........................................ 15.00 Car payments ........................................ 58.00 Operation of car .................................. 25.00 Therapy ................................................ 160.00 Medical ............................................ 25.00 Payment on hi-fi ................................ 10.00 Trash ............................................. 2400 Newspaper ................................... 6.00 Telephone ......................................... 10.00 Insurance (sic) ............................. 220.00 Clothing and household incidentals, entertainment and school ............... 90.00 Repairs ..................................... .. 20.00' Total ........................................... $838.00 Mrs. Stewart did not testify as to a total for the above expenses. I The husband contends that there was no basis for granting a divorce for constructive desertion and that there was insufficient corroboration. He also objects to the chancellor’s referral in his opinion to a revival of the prior misconduct, contending that the prior misconduct must itself be grounds for divorce, that the gun incident would not be sufficient grounds and that Mrs. Stewart was not in fear for her life when she continued to live ²⁷⁹ with her husband for 10 months after the gun incident. Of course, she did not live with him for all of the 10 months after the incident, as the record shows.

Like zoning law, there is no shortage in Maryland of divorce law. A single act of cruelty has been held not sufficient for constructive desertion. Murphy v. Murphy, 248 Md. 455, 460 , 237 A. 2d 523 (1968). Practice of abnormal sexual relations and demands for their continuance has been held adequate grounds for constructive desertion.

Soles v. Soles, 248 Md. 723, 727 , 238 A. 2d 235 (1968) . Nagging, abuse, cursing and swearing do not amount to “cruelty of treatment” or “excessively vicious conduct” which will justify one spouse in deserting the other. Stevens v. Stevens, 183 Md. 599, 602 , 39 A. 2d 690 (1944). Unlike Ballan v. Ballan, 251 Md. 737 , 248 A. 2d 871 (1969) , cited by Mr. Stewart, we here have a case in which the chancellor made a determination, “[u]pon careful consideration [of] * * * the evidence and the demeanor of the witnesses * * that the several acts of the husband were such that the wife was obliged to leave, saying that the case fitted into those of this Court in which it has been held that for there to be sufficient ground to leave it must appear that it would be “intolerable for her to remain without loss of her health, without, more or less, apprehension of bodily harm * * In Pohzehl v. Pohzehl, 205 Md. 395, 407 , 109 A. 2d 58 (1954), Judge Collins said for the Court: “Any misconduct of the husband will justify the wife in leaving him when it makes it impossible for her to live with him without loss of her health or self respect.

If the conduct of the husband has been such as to render continuance of the marriage relations unbearable, justifying the wife in remaining away from the home, he is the one who is guilty of desertion. Polley v. Polley, 128 Md. 60 , 97 A. 526 ; Schwartz v. Schwartz, 158 Md. 80, 90 , 148 A. 259 ; Singe ²⁸⁰ wald v. Singewald, 165 Md. 136 , 166 A. 441 ; Kline v. Kline, 179 Md. 10 , 16 A. 2d 924 ; Fischer v. Fischer, 182 Md. 281 , 34 A. 2d 455 ; Hockman v. Hockman, 184 Md. 473 , 41 A. 2d 510 ; Miller v. Miller, 185 Md. 79 , 42 A. 2d 915 ; Bradshaw v. Bradshaw, 189 Md. 322 , 55 A. 2d 719 ; Gold v. Gold, 191 Md. 533, 539 , 62 A. 2d 540 ; Scheinin v. Scheinin, 200 Md. 282, 290 , 89 A. 2d 609 ; Rosenthal v. Rosenthal, 202 Md. 375, 381 , 96 A. 2d 500 .” Id. at 407 . See also Liccini v. Liccini, 255 Md. 462 , 258 A. 2d 198 (1969); Beavers v. Beavers, 255 Md. 450 , 258 A. 2d 203 (1969); and Kruse v. Kruse, 179 Md. 657, 663 , 22 A. 2d 475 (1941). In Cullotta v. Cullotta, 193 Md. 374 , 66 A. 2d 919 (1949),the Court said: “As to condonation by the wife of the husband’s former offenses, we are of opinion that his subsequent actions have revived the wife’s remedy for those offenses.

Condonation is, of course, forgiveness with an implied condition that the marital offenses shall not be repeated and that the party offended shall be treated with conjugal kindness and on breach of this condition, the right to remedy for former injuries revives. Fisher v. Fisher, 93 Md. 298 , 48 A. 833 ; Hilbert v. Hilbert, 168 Md. 364, 372 , 177 A. 914 , 98 A. L. R. 1347; Schriver v. Schriver, 185 Md. 227, 244 , 44 A. 2d 479 * * Id. at 383. See also Dorsey v. Dorsey, 245 Md. 703, 704 , 227 A. 2d 617 (1967). In a case arising prior to the deletion of Maryland Rule S75, Judge Barnes said for the Court in the case of Soles v. Soles, supra: “In Comulada v. Comulada, 234 Md. 287, 293 , 199 A. 2d 197, 200 (1964), Judge Horney, for the Court, reviewed the legislative and judicial ²⁸¹ history of Maryland Rule S75, and after a careful review of the prior Maryland cases, stated the effect of