Wendel v. Wendel

¹³ Offutt, J., delivered the opinion of the Court. These are cross appeals by Herman George Wendel, herein referred to as the appellant, and Elizabeth H. Wendel, his wife, referred to' herein as the appellee, from a decree of the Circuit Court of Baltimore City. The decree allowed Mrs. Wendel $20 a week alimony, and $750 counsel fee (subject to increase in the event of further proceedings), and dismissed the cross bill of Mr. Wendel, in which he prayed for an absolute divorce on the ground of abandonment. The original bill was filed by Mrs. Wendel on November 2nd, 1923, and in it she alleged that she had discovered from the conduct of her husband that for a long time prior to that date that he was losing all love and affection for her, and that “said conduct and treatment having grown continually worse and having become so neglectful and intolerant that she began to make an investigation of the causes therefor, and that she discovered that said neglect, ill-treatment and abuse were due to the defendant’s infatuation for other women, and particularly to his infatuation for a certain vroman whose name is known to your oratrix.” She further charged that for “the last several months” appellant’s conduct towards her had become “harsh, vicious and cruel,” that he had failed to provide her with reasonable “necessaries” or the means of procuring them; that he had threatened her with bodily harm, and was in the habit of abusing her by the “use of vulgar and profane language”; that because she had nowhere else to go she had been obliged to live at appellant’s domicile, 3003 W. North Avenue, in Baltimore City, until November 1st, 1923, when appellant endeavored to have the furniture removed from that house, but was prevented from doing so' by the appellee, and that thereupon he left “said premises” and that she did not know “whether or not he intends to return.” She further alleged upon information that appellant had -a net annual income of $10,000, and a substantial estate.

Finally, she charged that he had threatened to dispose of his property, in order to' deprive her and her child of any interest therein, and that, unless her rights and property were protected by a restraining order pending the ¹⁴ suit, she would suffer irreparable loss. In her prayers for relief she asked, (1) that she be alloVed permanent alimony, (2) alimony pendente lite, (3) that appellant be enjoined from disturbing her in the possession and occupation of 3003 W. Worth Avenue, (4) that he be enjoined from disposing of his property or business pending the suit, and (5) for general relief. Upon that .bill a restraining order issued as prayed, and the court passed an order, nisi allowing' her seventy-five dollars a week as alimony pendente lite. The appellant in due course filed an answer denying the misconduct charged against him, stating that he had provided a home for his wife and child at 1522 Park Avenue, where he had intended moving the furniture from 3003 W. Worth Avenue, but that his wife refused to move to that home, protesting that he had been' a kind and affectionate husband, and that he had provided liberally for the suppoif of his wife and daughter, alleging that his gross income was less than $5,000, and his gross expenses over $4,000, setting out in some detail the items of his estate, and charging that his wife was extravagant, that she had an “ungoverned” temper, and that for “years past” she had “nagged and harassed” him to the vergof nervous prostration.

On Wovember 8th, 1923, the injunction was dissolved, and on November 11th, 1923, alimony pendente Hie was allowed at forty dollars a week upon the condition that' appellee remove from 3003 W. Worth Avenue. Wothing further was done in the case until May 12th, 1925, when James E. .Tippett, Esq., a member of the bar, filed a petition for counsel fees for services rendered Mrs. Wendel in the preparation of the pleadings, and in conducting the proceedings connected therewith, in her suit against the appellant. In substance the petitioner charged that Wendel had property worth $30,000, and an annual income of $5,000, and that the appellee was without means. Wendel in his answer traversed those allegations, and then added this: “Further answering said petition as a whole this defendant says that even if the plaintiff in this cause has not sufficient means to pay a counsel fee to> her solicitor, nevertheless no- ¹⁵ counsel fee should, under the practice of this court, be allowed at the present time for the reason that the bill of complaint filed herein on the 2nd day of November, 1923, bas never been heard on its merits, that the cause is therefore not concluded and that under the practice prevailing in the equity courts of Baltimore City, counsel for a wife in a divorce or alimony proceeding is never allowed a fee to- be charged against a husband until the final conclusion of the proceedings, particularly in cases where the proceedings are originally instituted (as in this case) by the wife.” The case again slept until December 17 th, 1925, when the appellant filed a cross bill praying for an absolute divorce from bis wife on the ground of abandonment.

Mrs. Wendel answered the bill, denied the desertion, but charged that Wendel bad been guilty of adultery, and that he bad abandoned her. The parties again rested until March 19th, 1927, when Wendel demurred to so much of the answer as charged adultery, because the appellee bad neither named the person with whom it was committed, nor stated that the name of such person was unknown to her. Eollowing that there was filed by Mrs. Wendel another petition for counsel fees for defending herself against the cross bill. Appellant in his answer to' that petition assorted that Mrs. Wendel had funds of her own sufficient to pay her counsel, and that therefore he should not be required to pay such fees.

On the 10th of May, 1927, over three and a half year,? after it was instituted, the case finally came on for a hearing and testimony in open court, and after the hearing the court, on May 31st, 1927, entered the decree referred to above. The appeals from that decree require us to determine, (1) whether the evidence in the case was sufficient to support the conclusion that the appellant’s conduct towards his wife was such as to justify an allowance of permanent alimony to her, (2) whether it was sufficient to show that the wife abandoned and deserted the appellant for a continuous period of more than three years next preceding December 17th, 192G, and whether snob abandonment was ¹⁶ final and deliberate and the separation of the parties beyond any reasonable expectation of reconciliation, and (3) whether the allowance for counsel fees and alimony was reasonable and proper under the circumstances of the case. These questions we will consider in their order. The record in this, as in many other similar cases, abounds with frivolous and trivial details, accusations, recriminations and ill will.

There are some facts which are not disputed, and, as they throw some light on the conduct of the parties and are of some assistance in valuing the other evidence, they may be given' in narrative form and are as follows: Wendel, who is now forty-eight years old, began to work for a living whén he was sixteen. He started as a helper in a drug store at $8.33 a month. Eight years later he had graduated in pharmacy, and was working in a drug store at $16- a week and had received $4,500 from his father’s estate, and at or about that time he married his present-wife. He appears to have been industrious, frugal and shrewd, and in the course of time he prospered in a moderate way, accumulated^ some property, his earnings increased, his standard of living was raised, and it became possible for him to live without the severe economy of his early years.

For some years the marriage appears to have been a fairly successful venture. There were some quarrels, she said he was cold, stubborn and stingy, he said she was nagging, extravagant and headstrong. But the evidence indicates that they both did their part in maintaining the common home; he was a hard worker, and at times she helped him in his business, they made friends, and occasionally entertained them. He provided for the home with as much liberality as appears to have been consistent with his property and income, and supplied his wife with reasonable funds for clothing.

As the years increased, however, their differences became sharper and more serious, until November 1st, 1923, when he left his home and failed to return, and on the following day she filed the original bill in this case. ¹⁷ The case in respect to both the cross bill and the original bill turns at last largely upon the testimony of Mr. and Mrs. Wendel. As we have intimated, much of the testimony relates to trifling and immaterial things, which are without any importance or significance in such cases as this. If every petulant or impatient expression, every thoughtless or inconsiderate act, every little failure of courtesy or forbearance occurring in the home is to be cherished and recorded, to be dragged out and exhibited in anticipated divorce proceedings, the average home, instead of being the theatre of the usual humdrum give and take of married life, would rather resemble an armed camp, with each adversary watching for some slip or error on the part of the other, and in our opinion little weight should be attached to such testimony. The substantial facts alleged by Mrs. Wendel as a ground for relief, are (1) cruelty, (2) abandonment, (3) non-support, (4) adultery, while Mr. Wendel relies upon abandonment and desertion, as grounds for the relief sought in his cross-bill.

As reflecting upon her charge of cruelty, Mrs. Wendel said that for years her husband had been stubborn and stingy, morose and gloomy, that for long periods of time he would not speak to her, that he continually cursed and abused her, that he was cold and indifferent, that on one occasion he struck her with a belt buckle, and that on another, when he was attempting to remove the furniture from 3003 W. North Avenue, he threw her against a radiator, and he struck her friend, Mrs. Pur inton, “an unmerciful blow” with a chair, and that on still another occasion he “pinched” her. These charges of physical violence are unsupported by the record. In explanation of the “belt buckle” incident, Wendel said that he, his wife, his daughter, and Marian Huntley would play cards in the evening, and that frequently, at the conclusion of the game, there would be a romp, they would throw pillows at each other, and that he may on such an occasion have struck her with a belt, but that if he had it was done in play. In that explanation he was partly corroborated by Miss Huntley, ¹⁸ while Mrs. Wendel’s statement was wholly unsupported.

The supposed assault upon her and Mrs. Purinton also loses much of the vicious character given it by Mrs. Wendel in the light of other testimony. Miss Huntley, a witness called by Mrs. Wendel, said that Wendel was attempting to move “something out,” when Mrs. Wendel tried to stop him, and he shoved her away, and she said she thought that on the same occasion Mrs. Wendel grabbed her husband and scratched his face. The incident occurred under the following circumstances: Wendel had notified his wife that he intended to move from the North Avenue house to an apartment on Park Avenue. His wife opposed the change, but he attempted to go on with it notwithstanding her opposition, and, on November 1st, 1923, sent moving vans to carry the furniture from the old home to the new.

The men with the vans had already placed some of the furniture in the vans when they were stopped by Mrs. Wendel. There was some confusion and excitement, Mr. and Mrs. Wendel were both very angry, the moving people did not know whom to obey, Marie the daughter, hoping to create a diversion, pretended to swoon. Upon that scene Mrs. Punton, who with her husband rented the second floor of the house, entered. She had no connection of any bind with either Mr. or Mrs. Wendel, hut she volunteered to protect Mrs. Wendel from her husband.

And, to quote her testimony, she attempted to discharge that duty in this way: “Mrs. Wendel was very nervous, which anybody would be, and I was myself. I was so nervous I did not know what I was doing hardly, and several of the pieces of furniture, Mrs. Wendel said to me, belonged to her, and I said to her, 'I would not let him take it.’ And she said, What will I do ?’ I said, 'I just would not let him take it if, it was mine, if I paid for it.’ Q. Where was Mr. Wendel ? A. He was there about this time. Q. What happened then?

A. He said to' me, What right have you to interfere, Mrs. Purinton?’ And I said, 'Only that you are abusing this woman so, and some one. has to stand up for this woman.’ That is what I said. Q. What did he say then? A. He ¹⁹ threw a chair hack; he had a rocking chair in his arm and it struck me on the limb and I still have the mark, a very-sore limb from it. I don’t know whether he did it purposely.

He just threw it like this (indicating'); it had rockers and one of the rockers struck me.” It also appeared that Mr. Purinton was in his apartment recovering from an attack of grippe, but that, although he felt able to protect his wife, she made no outcry, and that, although she later showed him the bruise made by the chair, neither of them complained of it to Wendel, or attempted to have him punished for striking her. That is the only material evidence relating to physical violence, and in our opinion it fails to support appellee’s charges. Mrs. Wendel failed to give any of the circumstances of the occasion when she said Mr. Wendel struck her with a belt. If there had been anything to support the inference that it was wanton and deliberate, it may be assumed that she would have told it.

But such evidence as there is rather indicates that it was done in play, with no deliberate intention of injuring her. In regard to the occurrences on November 1st, 1923, it may be said that, while it was a painful and unpleasant scene of domestic discord and violence, there is nothing, aside from the testimony of Mrs. Wendel, to indicate that her husband intentionally touched or injured either her or Mrs. Purinton. He was in his own home, moving what we may assume from the evidence was his own furniture, and what he did appears to have been done in resisting physical interference by his wife and Mrs. Purinton with him in his effort to carry out that purpose. Nor can we say that the evidence is sufficient to support the conclusion that Wendel abused and cursed his wife by the use of vulgar and profane language.

That they quarreled early and often is unfortunately true, but whether he or she was responsible for these quarrels does not appear from anything in the record. Each accuses the other and neither was corroborated. Mrs. Wendel said that he cursed her, but she could recall no specific language, except that she knew he had never called her any vile name, and, while ²⁰ Mrs. Purinton remembered hearing a quarrel on one occasion, when both Mr. and Mrs. Wendel were speaking in loud tones, and when Mr. Wendel said “terrible things” to his wife, she could not remember what they were. Marion Huntley, who lived with them, said they had little quarrels over money, but that she did not