Wise v. Wise

Urner, J., delivered the opinion of the Court. The appellant, in January, 1928, sued her husband, the appellee, for separate maintenance, charging that he had often treated her with brutality and cruelty, and that, shortly before the suit, he had compelled her to leave their home under .a threat of forcible ejectment. The appellee’s answer' denied the accusations contained in his wife’s bill of complaint, and he filed a cross bill, alleging that she had abandoned and deserted him, and praying for a partial divorce on that ground. Upon the testimony produced in the case a decree was passed, on FTovember 18th, 1926, dismissing the cross bill, awarding to the appellant the custody of the twoxninor children of the parties, and requiring the appellee to pay twelve dollars weekly for the support of his wife and ⁵⁹⁸ (children, through the Prisoners’ Aid Association of Baltimore City.

On May 14th, 1929, the appellee sued the appellant for a divorce a mensa et thoro upon allegations that he had regularly made the payments directed by the decree in her .suit, that she had abandoned him without just cause in Janu■ary, 1926, and had refused to consider overtures made by him, since the decree, to effect a reconciliation and reunion, .•and that her attitude constitutes a final and deliberate desertion and abandonment entitling him to a partial divorce. In her answer to the appellee’s bill of complaint the appellant •averred that the decree in her suit was based upon evidence •of the appellee’s cruelty, brutality, and desertion, and she ■denied that he had made any sincere efforts for a reconciliation. The trial of the case resulted in a decree granting the husband a partial divorce, awarding the custody of the chil•dren to the wife, as the former decree provided, and directing the husband to pay ten dollars weekly for the children’s support. The evidence in the record on appeal from the second de■cree does not enable us to concur in the view upon which it was predicated, so far as the divorce is concerned.

In our •opinion the testimony is insufficient to prove that the appellee’s overtures to the appellant were made and refused under •such circumstances as to place her in the position of a deserting spouse, notwithstanding the previous adjudication in her •favor on the issue of abandonment and cruelty. The decree in her suit for separate maintenance could have been rendered •only upon evidence sufficient to sustain her right to a partial divorce, under the pleadings, if that measure of relief had been requested. Outlaw v. Outlaw, 118 Md. 498 ; Hood v. Hood, 138 Md. 360 ; Polley v. Polley, 128 Md. 63 ; Hoffhines v. Hoffhines, 146 Md. 356 ; Wilson v. Wilson, 152 Md. 632 ; Wiegand v. Wiegand, 155 Md. 643 . The testimony at the former trial was not reproduced in the present case.

It may have proved conditions which justify the appellant’s unwillingness to resume the marital association. There should be no presumptions against her upon that subject in the absence of evidence tending to qualify the significance of the ⁵⁹⁹ judicially ascertained fact that her husband’s conduct was responsible for the separation. The determination of the question as to whether the appellant was wrong in her refusal to live again with the appellee depends on the kind and degree of mistreatment to which she was previously subjected. It was incumbent upon him to prove that the causes and circumstances of the separation were not such as to prevent his. wife, with due regard to her safety, comfort, and self-respect, from accepting his proposal for a reunion.

There was no attempt by the appellee to discharge that important burden, lie endeavored merely to prove that he made repeated offers of rconciliation which his wife declined. Even upon that issue the proof is unsatisfactory, in our judgment. It refers to several interviews of third persons with the appellant at her husband’s instance with a view to their being reunited, but- he made no personal visit or appeal to his wife for that purpose. Two of the three intermediaries testified that their communication of overtures from the appellee to the appellant occurred at periods antedating the decree for alimony.

The other representative stated that he interviewed the appellant, at the appellee’s request, about a year before the trial of the pending case. Ilis account of the