Barclay v. Barclay
| Decision Date | 15 January 1904 |
| Citation | 56 A. 804,98 Md. 366 |
| Parties | BARCLAY v. BARCLAY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; George M. Sharp, Judge.
Bill by Florence B. Barclay against John T. Barclay. From a decree for plaintiff, defendant appeals. Reversed.
Argued before McSHERRY, C.J., and FOWLER, PAGE, PEARCE, SCHMUCKER and JONES, J.
James Fluegel, for appellant.
W Starr Gephart, for appellee.
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 out of the husband's estate and earnings.
The parties were married in Baltimore City on May 9, 1883, and lived together until January 8, 1895, when it is alleged the appellant abandoned his wife, leaving in her care and custody their only child, then a boy of 11 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 10 1895, in which he said: 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 7, 1895, the following articles of separation were executed between them:
(Filed with the Examiner.)
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 per month from March, 1895, up to July, 1902. On March 6, 1902, the appellant assigned to George S. Colton, for the use of Charles Scharf, his interest in all moneys then due him from the Maryland Pilots Association, and in his stock certificate of membership therein, until a note of $1,500 due from him to said Scharf, and dated December 1, 1901, payable 60 days after date, should be fully paid, and since said assignment no payments have been made 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., 33 Md. 406, 3 Am.Rep. 183, Bartol, C.J., said that since in such cases the court sits, not in the exercise of its general and ordinary equitable jurisdiction, but as a divorce court, and our Code is silent as to the principles by which it is to be governed, "it has always been considered that the decisions of the English ecclesiastical courts in similar cases may properly be referred to as precedents, and they have uniformly been cited and relied on as safe and authoritative guides for the courts of this state in disposing of cases of this kind." And in Schwab v. Schwab, 96 Md. 596, 54 A. 655, while holding that in mere "matters of procedure in such cases we are at liberty to depart in so far from the methods formerly prevailing in those courts which have now passed out of existence as to make our practice conform to the weight of modern authority," this court repeated the language of Judge Bartol as to the authority of the principles established by the English decisions. 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 & Divorce, § 634. It was so held in this state in J.G. v. H.G., supra, and in Kremelberg v. Kremelberg, 52 Md. 557. But the English cases may be said to be very nearly uniform in also holding that a voluntary deed of separation between the parties, in connection with lapse of time and other circumstances, may be sufficient to show that the application was not made bona fide, but for some collateral purpose, and in such cases the application has been denied. Such was the case of Matthews v. Matthews, 1 Sw. & Tr. 499, where a deed of separation was made in 1853, reciting differences between the parties, and in 1859 the wife petitioned for a divorce on the ground of cruelty. The lapse of time alone was held not to be an absolute bar, but, taken in connection with the deed of separation, was held to show that the application was not bona fide for the wife's protection, but for some collateral purpose, and the petition was dismissed. So, in Thomas v. Thomas, 2 Sw. & Tr. 113, where husband and wife executed a deed of separation in 1854, setting forth that the husband had been living for some months with a Miss H., and referring to certain articles of agreement concerning trust moneys and other property, to which Miss H. and the husband and wife were all parties. In 1860 the wife petitioned for a judicial separation on the ground of the husband's adultery with Miss H. in 1858 and 1859, and it was held that the execution of the deed of separation, knowing the husband was cohabiting with Miss H., was virtually a consent to its continuance, and that the petition must be dismissed. In Crabbe v. Crabbe, L.R. 1 P. & D. 601, after a deed of separation, with an allowance to the wife, she petitioned for a divorce on the ground of adultery and desertion. Two quarters of the allowance had been paid, after which further payments were refused by the husband. The court dismissed the petition, saying: ...
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