56 A. 804 | Md. | 1904
This is a bill filed by the appellee against her husband, the appellant, for a divorce a mensa et thoro on the ground of desertion, and the appeal is from a decree of the Circuit Court of Baltimore City, granting the divorce, and awarding to the appellee by way of permanent alimony, a monthly allowance of $50.00 out of the husband's estate and earnings.
The parties were married in Baltimore City on May 9th, 1883, and lived together until January 8th, 1895, when it is alleged the appellant abandoned his wife, leaving in her care *367 and custody their only child, then a boy of eleven years. It appears from a certain petition in the case that an answer to the bill was filed by the appellant, but it is not embraced in the record. In his testimony given in the cause, he denies that he abandoned her, and alleges that she refused to live with him in a house of his own, or elsewhere than under her parents' roof, where they had always lived. She denies that she refused to live with him in a house of their own, or that she was ever requested by him so to do, and she alleges that he left her in consequence of a quarrel between them caused by his acknowledgment to her a few days before he left her, that he was keeping a woman in Baltimore, and his refusal to give her up. That he did originally and before the execution of the articles of separation hereafter mentioned abandon her, whatever may have been the cause, is beyond question from a letter written by him to her January 10th, 1895, in which he said, "I have made up my mind you and I cannot get along. I could never be happy if I lived with you, so don't try to have me do it, for I am determined to try and get along alone. Blame no one for this. I have done it all, and as for the lady I told you about, we are two; I will never go near her." It is proper to add however that in his testimony he emphatically denied that he ever told his wife he kept a woman, and that he never did keep the woman his wife named as such. They never met after the date of this letter, except casually on one occasion at his mother's house about six weeks thereafter, and on March 7th, 1895, the following articles of separation were executed between them:
Witnesseth that the parties hereto agree that they will live separate and apart from each other; that the said Florence shall not pledge the credit of said John T. Barclay in any manner or to any extent whatever, nor shall she contract any bills or obligations of any sort in his name; that said Florence shall have the custody of their son, Joseph T. Barclay and *368 shall provide for his maintenance and education out of the money hereinafter mentioned to be received by her; that once in every two weeks the said Florence shall upon request of said John T. Barclay, send said Joseph to the residence of Mrs. Isabel Barclay so that said John may see said Joseph for a reasonable time, said boy not, however, to be taken away from said residence by said John T. Barclay; that said John hereby authorizes and directs the Secretary of the Maryland Pilots' Association to retain, in each month out of any monies that may be coming to him, said Barclay, the sum of fifty-seven dollars to be paid to said Florence, or her agent, on the last day of each month hereafter beginning with the last day of March, 1895, said payments to continue until revoked by mutual consent of the parties hereto; that the certificate of membership of said John in the Royal Arcanum shall remain payable as at present, the certificates in the Ancient Order of United Workmen and the Loyal Additional Beneficial Association to be made payable to said Joseph T. Barclay and the dues and assessments upon all three of said certificates shall be paid by said Florence, to whom the notices shall be sent, out of the monies to be received by her as aforesaid and that the articles of furniture belonging to said John T. Barclay now on the premises No. 1528 N. Caroline street, shall be and become the property of said Florence, but she shall not part with any of said furniture except by mutual consent.
Florence B. Barclay. John T. Barclay.
Witness as to both: James B. Guyton.
The appellee admits that these articles were prepared by her counsel, at her suggestion; that they were first signed by her, and were then sent to her husband through her counsel, and were then signed by him "all agreeing to this instead of taking it to Court," and that under this agreement she was regularly paid $57.00 per month from March, 1895, up to February, 1902. On March 6th, 1902, the appellant assigned to George S. Colton, for the use of Charles Scarf, his interest in all monies then due him from the Maryland Pilots' Association, and in his stock certificate of membership therein, until a note of $1500 due from him to said Scarf and dated December 10th, 1901, payable 60 days after date, should be fully paid, and since said assignment no payments have been made *369 to the appellee under the agreement, but that at the time the testimony of Colton was taken, $808.85 had been paid under said assignment and had been credited on the note.
Colton was made a party defendant to the cause and the bill prayed that the assignment be annulled, and that the appellant be enjoined from disposing of his interest as a member of the Maryland Pilots Association. A preliminary injunction was granted, and the decree dismissed the bill as to Colton, but it does not appear, either from the docket entries, or from anything in the record, that the injunction was ever expressly dissolved, or made permanent.
The question upon which the decision of this appeal must turn is the effect of the articles of separation upon the complainant's right to the divorce she seeks. In J.G. v.H.G.,
Turning then to these precedents, it may be regarded as settled by them that a voluntary deed of settlement is not, per se, a bar to a suit in the Ecclesiastical Court for a divorce. Durant
v. Durant, 1 Hagg. 733; Speering v. Speering, 3 Swabey
Tristram, 211; Matthews v. Matthews, 1 Sw. Tr. 499;Crabbe v. Crabbe, L.R., 1 P. D. 601, and other authorities cited in 1 Bishop on Marriage and Divorce, sec. 634. It was *370
so held in this State in J.G. v. H.G., supra, and inKremelberg v. Kremelberg,
In Ross v. Ross, L.R., 1 P. D. 734; St. Paul v. St.Paul, Ibid. 739, and in Gipps v. Gipps, 11 H.L. Cases, 27, it was held that connivance at one act of adultery bars the plaintiff from divorce whether with the same, or another paramour, but we are not required to decide this question, because here, as in Parkinson v. Parkinson, the bill is founded only on the charge of desertion. In 9 Amer. and Eng.Ency. of Law, 2nd ed., p. 775, it is said, "A separation commenced or continued by mutual consent or agreement does not constitute desertion," citing Townsend v. Townsend, 1 Sw.
Tr. 231; Secor v. Secor, 1 McArthur, 630; Masterson v.Masterson, Ky., 46 S.W. Rep. 20. In the same work, p. 829, connivance is said to be "the consent or indifference of the complainant to the misconduct complained of as a cause of divorce. This defense is in the nature of an estoppel, and is generally set up as a defense to adultery only, although the principle may be applicable to other causes for divorce." InMorrison v. Morrison, 3 Hagg. 105, LORD STOWELL says, "mere passive connivance is as much a bar as active conspiracy," and inDennis v. Dennis,
In Walton v. Walton, 28 L.J. 97; Thomas v. Thomas, 2 Sw. and Tr. 113; and Ross v. Ross, L.R., 1 P. D. 734, it was held that consent to continued adultery is shown by articles of separation entered into after discovery of the offence; and as to desertion this was distinctly so held in J.G. v. H.G.,supra, whatever may be there intimated, or held, as to its application to adultery.
In Yorston v. Yorston,
The three leading cases in Maryland on this question areBrown v. Brown, 5 Gill, 249; J.G. v. H.G.,
In J.G. v. H.G., that case was urged upon the Court and CHIEF JUSTICE BARTOL said, "The effect of the decision inParkinson v. Parkinson, is that such a deed operates as a *373 condonation of the offence of abandonment, and to that extent is consistent with the decision of the Court of Appeals in Brown v. Brown," though he proceeded to say, "It is no bar to a suit for divorce for adultery, although it appeared the offence was known to the wife at the time the deed was executed." The case now before us asked for a decree a mensa et thoro, and is based exclusively upon abandonment. The case of J.G. v. H.G., is therefore an authority for holding the deed of separation in this case a bar to the relief sought. In discussing the motives of the complainant in that case, the Court said, "The only circumstance relied on to impeach the good faith or bona fides of the appellant in bringing this suit is the lapse of time after the execution of the deed before filing this bill. But this is satisfactorily explained by the proof in the record. It appears the complainant was restrained from instituting this proceeding by conscientious scruples supposing it to be inconsistent with his religious duty to seek a divorce for any cause, and it appears also that the same motive led him to enter into the deed for an amicable separation. Those conscientious scruples were afterwards removed by a decision upon the subject rendered by the highest ecclesiastical tribunal of the church of which he and the appellee are members, and to whose authority he felt himself bound to submit, declaring the marriage null. These facts are a sufficient answer to the suggestion that the appellant has lost his remedy by laches or acquiescence, or that his application for a divorce has not been made in good faith or for the cause assigned."
So in Kremelberg v. Kremelberg, supra, JUDGE ROBINSON found a sufficient answer to the same suggestion, in the fact that the complainant was compelled either to submit to a construction, then for the first time, placed upon the deed of separation, which would utterly defeat what he had intended to accomplish thereby, and which instead of narrowing the control of the mother over the daughters, restricted his rights over them as a father, or to take some steps by which his rights as a father might be asserted. Both these cases therefore, *374 are brought within the exceptions to the rule which we have stated. Here, however, there is no proof that the complainant was restrained by any conscientious scruples subsequently removed, or that she was influenced by any other motive than to get rid of the deed of separation to which she had agreed, merely because the payments for which it provided, were discontinued. The cases of Crabbe v. Crabbe, supra, where only two quarters of the allowance were paid, and then payment was discontinued, andParkinson v. Parkinson, supra, where none of the allowance had been paid, show that this is a collateral purpose, which will not warrant a decree of divorce.
In Besant v. Wood, L.R. 12 Ch. Div. 605 (1878), a deed of separation between husband and wife was executed and after continuing to live apart for more than five years, the wife by counter claim to an action by the husband to enforce the deed, claimed against him a judicial separation, on the ground of alleged cruelty, but SIR GEORGE JESSEL held that her right was barred by lapse of time and by the execution of the deed of separation, and also that the husband was entitled to enforce specific performance of the contract. The latter holding we are not to be understood as approving it being in direct conflict with the case of Helms v. Franciscus, 2nd Bland, 561, in which CHANCELLOR BLAND says that Courts of law and equity are without any authority either to sanction or enforce cohabitation or separation, and that husband and wife cannot have any agreement between themselves for a separation, enforced by a Court of common law or equity. In the course of the opinion inWood v. Besant, supra, the Master of the Rolls said that "The Courts had adopted the view that separation deeds were not perse against public policy, and that it might be better in many cases for married people to avoid the expense and scandal of suits for divorce by settling their differences quietly by the aid of friends out of Court, though the consequence might be that they would live separately." This we think is a sound view and consonant with the best interests of society, and it follows *375 from what we have said that we are of opinion the decree of the Circuit Court should be reversed, and the parties be left in the situation in which their agreement of separation placed them.
We have not overlooked the fact that in this case the instrument is not technically a deed, and there is no intervention of a trustee for the wife, and that in Lippy v.Masonheimer,
But whatever may be the correct view of that subject, the appellee is not prejudiced in any right by the reversal of the degree. In Brown v. Brown, supra, it was said, "So long as the terms of a deed of separation are complied with by the husband, he is exonorated from the obligation to support his wife and is protected against any claim which can be made upon him for supplying her even with necessaries;" and it follows from this that when he repudiates his obligation under such deed, his liability for her maintenance is revived.
Decree reversed and bill dismissed, costs to be paid byappellant.
(Decided January 15th, 1904.) *376