Walker v. Walker

⁶⁵⁰ Thomas, J., delivered the opinion of the Court. The hill in this case was filed by the appellee against the appellant in Circuit Court Ro. 2 of Baltimore City, on the 13th of July, 1914, for alimony, counsel fee and the custody of their child. The evidence shows that the plaintiff and defendant were married in Baltimore' City in July, 1907, and have one child, Frances B. Walker, who on the 29th of March, 1914, was seven years of age. Immediately before the marriage, which took place in an attorney’s office while certain proceedings were pending against the defendant, they entered into the following agreement: “This agreement made this 11th day of January, A. D. 1907, by and between Margaret E. Doyle and Erank B. Walker, her intended husband, both of Baltimore City and State of Maryland: “Whereas a marriage is intended shortly to be solemnized between the said Margaret E. Doyle and Erank B. Walker, in view of which they desire to provide for the income and support to be received by the said Margaret E. Doyle after the said intended marriage as the sole support to be given her for herself and the issue of said marriage: “Row, therefore, this agreement witnesseth, That in consideration of the said intended marriage the said Margaret E. Doyle shall, after said intended marriage, possess and enjoy all property real and personal which she may now or shall hereafter hold free from any claim or interest of the said Frank B. Walker and with full power to her to dispose of the same by deed or otherwise without the help or hindrance of him, the said Erank B. Walker. “And in consideration of the agreement in the paragraph last above recited it is understood and agreed that the said Erank B. Walker shall, after said intended marriage, possess and enjoy all property real and personal which he may now or shall hereafter hold, free from any claim or interest of the said Margaret ⁶⁵¹ E. Doyle, and with full power to him to dispose of the same by deed or otherwise without the help or hin- • drance of her, the said Margaret E. Doyle.

And the said Erank B. Walker, in consideration of the said intended marriage, hereby covenants and agrees with the said Margaret E. Doyle, his intended wife, that from and after their marriage he will give to her for her support and the support of their issue, the sum of ten dollars per month during the continuance of said marriage; the same to be paid to her between the 1st and 10th days of each and every month, and the said Margaret E. Doyle, his intended wife, is to receive said sum as the sole support for herself and her issue to he paid by or demanded of the said Frank B. Walker by ber, tbe said Margaret E. Doyle, after her said marriage or anyone for her or in her behalf. “As witness our hands and seals. Margaret E. Doyle. (Seal) Erank B. Walker. (Seal) Test—William McCawley.” The plaintiff and defendant never lived together after their marriage, although the plaintiff says she “repeatedly wrote to> him and urged him to live as man and wife should live” for their “baby’s, sake.” The plaintiff and their child have always lived with her brother’s family in Baltimore City.

The defendant, whose home was in Maryland, and who held a position in the Internal Revenue Department of the United States, for the District of Maryland, at a salary at from three- to four dollars per day, continued to pay the plaintiff the ten dollars per month nntil the Ith of May, 1913. On the 13th of February, 1913, he wrote her from Cumberland, Maryland, where he was then stationed, as follows: “My Dear Margaret: I have made arrangements to he in Baltimore on Sunday, February 16th, 1913, and will stop at the Caswell Hotel. If you will inquire for me there about 11 A. M. I have something to say to you regarding our future which, I am sure, will interest and satisfy you. In event you should not ⁶⁵² he able to keep this appointment, telegraph me before • .3 o’clock Saturday. “Hoping we may be able to reach satisfactory understanding, I remain, Sincerely, E. B. Walker.” As requested in this letter the plaintiff met the defendant ■•at Hotel Caswell.

After greeting her and inquiring about the family, be asked her if she had been reading abo-nt tbe laws to be enacted in tbe western states, and said, “I do not know whether you have been reading up on them, but I have; ■■and after a short time the required residence out there will be twelve months, but now it is only six months, and I have a little paper drawn up by an attorney, and I want you to read it over; a little proposition. I feel I have not done right in this matter and I voluntarily offer this proposition.” After some further talk she says he left the parlor and got his coat and hat and they went to Camden Station where they remained until after ten o’clock, during which time he showed her the proposed agreement and told her that if she “did not appear and have a divorce in this State, he could not obtain a divorce in this State,” and if she did not sign the agreement he would leave the State and go to- some other State where he could get a divorce. They did not sign the paper, but he gave her a copy of it which she took home, and she ■says that she never saw him again until during the trial of this case. The proposed agreement was as follows: “Synopsis of Substihited Agreement Between Mr. and Mrs. Walker. “In lieu of the agreement now existing between the above parties, and in substitution thereof, it is agreed on the part of Mr. Walker as follows: “(1) To pay and deposit in some trust company of Baltimore Oity approved by Mrs. Walker the sum of ..........dollars, on or before the 15th day of each and every month, for a period of ten years, accounting from the date of said substituted agreement. ⁶⁵³ “(2) To give bond, with security to be approved by Mrs. Walker, in the penalty of two thousand dollars, for the faithful and prompt payment of said monthly-sum of money to said trust company. “(3) That said deposits shall bear interest at the-rate of three per cent, per annum, and the full amount of said deposits and interest, to be held by said trust, company in trust for the benefit of Trances B. Walker, and at the expiration of ten years the principal so-paid to said trust company, together with the interest thereon, to lie ajiplied to the education of the said Trances B. Walker, in any school or college which the said Mrs. Walker may select. “(4) In the event of the death of the said Trances.

B. Walker before the expiration of said ten years, said money so paid to said trust company, together with the interest thereon, shall become the absolute property of the said Mrs. Walker, and the aforesaid payments shall continue to be made by the said Mr. Walker for said period of ten years, and no longer, whether the said Trances B. Walker shall live or not, and all payments made after the death of the said Trances B. Walker, if she should die, shall be the absolute property of the said Mrs. Walker. “(5) Mr. Walker further agrees to pay all expenses required by law to be paid, together with attorneys’' fees (the lawyer or lawyers to be selected by the said Mr. Walker), incident to a suit to be brought immediately after the execution of said substituted agreement by the above named parties, by the said Mrs. Walker against Mr. Walker, to procure a decree of absolute divorce from him on the ground of desertion. “Mrs-. Walker agrees as follows: “(1) In consideration of the aforegoing to be done by Mr. Walker, promptly after the execution of a substituted agreement, to bring suit in her name, through an attorney or attorneys to be selected by Mr. Walker, against Mr. Walker for the purpose of procuring a ⁶⁵⁴ decree of the Court divorcing her a vinculo matrimonii from Mr. Walker. “(2) That she will not in said suit ask for temporary or permanent alimony from Mr. Walker, the aforementioned payments to be made by Mr. Walker being in lieu of any and all alimony or claims on the part of Mrs. Walker against Mr. Walker. “(3) That she will testify as party plaintiff in said divorce suit, upon being called upon to do so, and will do everything reasonably in her power to prosecute said suit to a final decree of divorce.” In March, 1913, the plaintiff received the following letter from the defendant: “Cumberland, Md., March 20, 1913. “My Dear. Margaret: I learned with a great deal of regret of your indisposition, and while 1 would have been sorry to hear it at any time, I am particularly sorry that it should have occurred just at this time. I have been looking forward to your promised letter, but it has not come, and as it has been over a month since I talked with you, I am sure you hare had ample time to consult your friends and make your decision.

Please bear in mind that the time grows shorter each day and, in fact, has become quite limited. If you' are too ill to write me, have someone telegraph, but in either event I must have an answer positively by the 24th. Remember, also, that as you haven’t kept your bargain, you must not expect me to do some of the things which I promised. I am in earnest, and from a personal standpoint it does not make any difference to me either way, only for the reasons which I gave you in Camden Station. “Hoping that your reply may not be too late, I am, Sincerely, Prank B. Walker.” The plaintiff says that the statement in the letter “that the time grows shorter” referred to the time within which ⁶⁵⁵ lie had to> leave Maryland in order to acquire the required six months residence in the western State.

On the 25th of May, 1913, the. defendant left the State of Maryland and went to Salt Lake City and from there to Reno, Uevada. He did not resign his position in the Internal Revenue Department, hut “got permission to be absent,” and resumed his work there when he returned to Maryland on the 24th of June, 1914. He says he had a friend in Salt Lake City, who was a miner and whom he had met in Pittsburg about a year previous, and that he stopped off there with the view of getting a position. He could not tell, however, where his friend lived, in what building his office was or on what street it was located.

He was in Salt Lake City for three or four days and then went to Reno because he was told that he would have no trouble in finding employment there. He stayed in Reno from the 27th of May, 1913, to March, 1914, when he returned to Maryland. While he was there he “worked around with different people,” and made enough money to pay his board. When asked to state what he did he said that he worked with a repair gang on the Southern Pac.

Railroad, and kept books at night for a drug company, which paid him four dollars a week. The defendant offered in evidence the record >f a divorce proceeding in the Second Judicial District Court of the State of Mevada, for Washoe County, instituted by him against the plaintiff, and the statutes of Kevada, etc., relating to marriage and divorce. These statutes provided that a divorce might be obtained in the District Court of the county in which the plaintiff had resided for six months before suit, for “willful desertion at any time, of either party by the other, for the period of one year,” and that if the defendant was a non-resident or could not, for any cause, be personally summoned, the Court could order notice of the suit to be given in such manner as should appear most likely to convey knowledge of the suit without undue expense or delay, and, upon failure of the defendant to appear and defend the suit, to decide the case. The record in that case ⁶⁵⁶ shows that the bill was filed by Frank B. Walker against Margaret E. Walker on the 6th of December, 1913, alleging that the plaintiff was then an actual resident of Washoe County, Nevada, and had been for six months previous to the institution of the suit; that the plaintiff and defendant were married on the 11th of-January, 1907; that they had one child, Frances B. Walker, and “that the defendant has wilfully deserted the plaintiff for a period of more than one year immediately preceding the commencement of this action; that the said desertion was and is without the consent and against- the will of the plaintiff, and that the defendant still continues to so desert plaintiff.” On the same day an order «was passed by the Court authorizing the following summons to be served on the defendant: “The State of Nevada sends greeting to said defendant : You are hereby summoned to appear within ten days after the service upon you of this summons if served in said county, or within twenty days if served out of said county, but within said Judicial District, and in all other cases within forty days (exclusive of the day of service), and defend the above entitled action.

This action is brought to recover a judgment and decree of divorce forever dissolving the bonds of matrimony now existing between you and the plaintiff, described in complaint dated-this 6th day of December, A. D. 1913. (Seal) W. A. Fogg, Clerk, Of the Second Judicial District Court of the State of Nevada in and for Washoe County.” On the 28th of February, 1914, the summons was returned with an affidavit of service on Margaret E. Walker, on the 8th of January, 1914, in the State’s Attorney’s Office in the Court House in the City of Baltimore, by Charles Klein-john, “Deputy Sheriff,” and on the same day the District Court of Nevada passed a decree, reciting the default of the defendant, that, evidence had been offered in support of the ⁶⁵⁷ allegations of the hill, and dissolving the marriage between the plaintiff and defendant, and oh the 2nd of March, 1914, there was filed what is called the ‘‘Judgment Roll,” containing the findings and decision of the Court on the 28th of February, 1914. The defendant further testified that he went west in order to be in a dry country, and not for the purpose of securing a divorce; that he knew when he left Maryland and went to Reno that the law then in force in Nevada required a residence there of six months in order to secure a divorce; that the law was changed in January or February, 1914, and that he came back to Maryland because he learned that his mother, who lives in Easton, Maryland, was sick. Charles Kleinjohn testified that he served the summons on Mrs. Walker in the Court House in Baltimore City, and that she was pointed out to him by Charles Kohlman, a detective; that she refused to take the paper and he shoved it under her arm.

Charles Kohlman states that he was with Charles Kleinjohn when he served the summons on Mrs. Walker; that he knew her from what the assistant State’s Attorney had told him, and that he saw her about a half hour later coming out of Mr. Wolf’s office. Mrs. Walker states most positively that no paper was served on her, and that the first information she had of the divorce proceedings was a notice of the divorce in the Stmday American of the first Sunday after March 2nd, 1914; that she did not know Charles Kleinjohn, and that she had never been summoned to attend Court in her life. Her sister, who was at the Court House in Baltimore on the 8th of February, 1914, says that she went there with Mrs. Walker, who went before the Grand Jury, and that while she was there, and as she was walking through the corridor, a man approached her and asked her if she was Margaret E. Walker, and that when she told him that she was not, he put a paper on her muff and it fell on the floor, and that she has never seen the paper or the man since. Hpon this evidence the learned Court below held that the ⁶⁵⁸ decree of the District Court of Revada, offered in, evidence, was “ineffective for want of jurisdiction to bind the parties in these proceeding,” and on the 3rd of December, 1914, passed a decree awarding the plaintiff alimony and a counsel fee.

From that decree the defendant has brought this appeal. The appellant, in a very carefully prepared and elaborate brief, contends: “First. The plaintiff failed to prove abandonment, which is the sole basis of the suit. “Second. The ante-nuptial agreement in connection with the lapse of time between its execution and the alleged abandonment, during which period (6 years) the parties lived apart and the appellant made regularly to the appellee the payments called for by said agreement, and coupled with the fact that it was