Bonwit v. Bonwit

• Decision Date: 30 October 1935
• Docket Number: 7.
• Citation: 181 A. 237,169 Md. 189
• Parties: BONWIT v. BONWIT.
• Court: Maryland Court of Appeals

181 A. 237

169 Md. 189

BONWIT v. BONWIT.

No. 7.

Court of Appeals of Maryland

October 30, 1935

Appeal from Circuit Court No. 2 of Baltimore City; J. Frank Supplee Jr., Judge.

Bill by Leona F. Bonwit against Ralph B. Bonwit. From a decree defendant appeals.

Reversed and remanded.

Argued before URNER, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON JJ.

Morton P. Fisher and Allan H. Fisher, both of Baltimore (Samuel J Fisher, of Baltimore, on the brief), for appellant.

Robert R. Carman, of Baltimore (Keech, Carman, Tucker & Anderson, of Baltimore, on the brief), for appellee.

JOHNSON Judge.

Leona F. Bonwit and Ralph B. Bonwit were married on May 4, 1921, and although their married life was not at all times pleasant, they managed to live together until May 15, 1934, at which time Mrs. Bonwit left their home on Eutaw place in Baltimore City under circumstances which will be hereafter referred to, for the purpose of attending a circus party with some friends. At the conclusion of the party she did not return to the family home until two days later, and then only upon condition that her husband first remove therefrom. Since then she has lived there with the three children of the parties, two boys, aged twelve and three and one-half years, and one girl, aged nine; the husband during this time having lived at a hotel. The parties have not lived together since the above occasion, and on September 14, 1934, the wife filed a bill of complaint against the husband, praying among other things a divorce a mensa et thoro upon the ground of abandonment and desertion, which it is alleged came about by reason of the cruel treatment on the part of the husband, making it necessary through fear on her part of bodily harm and physical violence from him that they live apart.

From a decree passed by the chancellor in the lower court granting (a) a divorce a mensa et thoro, (b) awarding the wife the custody of the three infant children, subject to the right of the father to have one or more of them at all convenient times, and (c) awarding as alimony and for support and education of the three children the sum of $8,500 per annum, payable in semimonthly installments, plus the further sum of $1,000 as a counsel fee to her solicitor, an appeal is taken by the husband.

Bonwit is not a strong man physically, and before his marriage he had a tubercular condition which affected him to such an extent as to become noticeable, with the result that the wife refused to enter into the marriage relation until he could pass a satisfactory physical test. In short, he is and always was a neuropath, a person who for apparently trivial reasons would become wrought up to a great degree of excitability, with the result that he would then say and do things which thereafter caused him much genuine grief and unhappiness. His condition has at least been progressive within recent years, within which time both of his parents died and the burden of managing a large and complicated business was transferred from them to him. His situation is aptly described by himself: "I let the worry and the responsibility of the business get the best of me. I would come home in the evenings just loaded up with worry and somehow almost literally bleeding from the mouth with worry in the past few years about business losses, market losses, taking on too much work that I was warned against taking on, and I did go home and I was irascible, there is no use talking about it, I was irascible at times."

His condition was well known to appellee before their marriage. See Clark v. Clark, 162 Md. 699, 159 A. 114.

However, notwithstanding these faults, Bonwit is a highly successful business man with an annual income of $20,000. At all times his family has been maintained by him in a state of great luxury, and it may truly be said that he is desperately in love with Mrs. Bonwit, and entirely devoted to their three children, and this feeling, at least on the part of his children, is reciprocal. He makes no complaint against his wife whatsoever, and his earnest and sincere efforts to effect a reconciliation with his wife suggest an undue hesitancy upon his part to deny many of the complaints she makes against him.

Both parties are respectable and substantial people. The chief worry of the wife seems to have been caused by the temperament of the husband, which on various occasions, much to her annoyance, has resulted in violent outbursts of temper, accompanied in some instances by his slapping her. Like many wives who are maintained in a state of luxury by the thrift and economy of industrious husbands, Mrs. Bonwit's duties were largely social in nature, and the impression is inescapable that many of her complaints had their inception in the fact that she insisted upon carrying her husband, a physically weak and mentally tired business man, into a far more abundant social life than was conducive to the welfare of his physical or mental state.

To sustain a charge of abandonment and desertion as here alleged, the plaintiff must prove a voluntary separation of one of the parties from the other, or the refusal to renew suspended cohabitation without justification, either in the consent or the wrongful conduct of the other party. Gill v. Gill, 93 Md. 652, 654, 49 A. 557; Taylor v. Taylor, 112 Md. 666, 77 A. 133; Buckner v. Buckner, 118 Md. 101, 84 A. 156, Ann. Cas. 1914B, 628; Muller v. Muller, 125 Md. 72, 93 A. 404; Klein v. Klein, 146 Md. 27, 125 A. 728; Daiger v. Daiger, 154 Md. 501, 503, 140 A. 717; Schouler on Marriage, Divorce and Separation, vol. 2, §§ 1644, 1645; Code, art. 16, § 39.

Thus it must follow that unless the wife has met the burden undertaken by her of establishing by convincing evidence, sufficiently corroborated, that the husband is guilty of legal cruelty, by which is meant such conduct on his part as will endanger her life, her person or health, or will cause reasonable apprehension of bodily suffering, then she is not justified in law in refusing to continue the marital relation, and there would then be no desertion on the part of the husband. Short v. Short, 151 Md. 444, 135 A. 176; McKane v. McKane, 152 Md. 515, 137 A. 288; Wendel v. Wendel, 154 Md. 11, 139 A. 573; Gellar v. Gellar, 159 Md. 236, 237, 150 A. 717; Singlewald v. Singlewald, 165 Md. 136, 166 A. 441; Code, art. 35, § 4.

But unless coming within these tests, conduct amounting to rudeness, harshness, neglect, indifference, sallies of passion, and even the use of profane and abusive language toward the wife, are insufficient upon which to justify a decree of this nature.

Moreover, the policy of the law of this state looks with disfavor upon divorces a mensa et thoro (Porter v. Porter [Md.] 177 A. 464, and cases there cited), for as was said by Judge Digges in Gellar v. Gellar, 159 Md. 236, 241, 150 A. 717, 719: "This would seem to apply with even greater force to application for divorce a mensa et thoro, which is practically nothing more than a request for judicial permission to live separate and apart, and which must result in the condition described by an eminent judge, of throwing the parties back upon society in the indefinite and dangerous character of 'a wife without a husband and a husband without a wife.' "

Also Judge Offutt in speaking for this court in the case of Singlewald v. Singlewald, 165 Md. 136, 146, 166 A. 441, 446, said: "It is not the function of the courts in such cases as this to arbitrate family quarrels, but to determine upon the evidence whether either of the parties has been guilty of such conduct as would make a continuance of the marital relation inconsistent with the health, self-respect, and reasonable comfort of the other. Nelson on Divorce and Separation, § 331; Short v. Short, supra; McKane v. McKane, supra. And in determining whether in a given case the evidence supports a charge of cruelty justifying a divorce, it is well settled in this state that such relief with its resulting destruction of the home, severance of family ties, and division of the allegiance of the children between embittered and hostile parents should not be granted except upon substantial grounds established by convincing evidence."

The wife to justify her claim of desertion by the husband attempts to characterize fourteen specific instances of cruelty upon his part. The first of these consisted of a slap which she states he gave her over some trifling matter about one month after their marriage. The second consisted in his pushing a pillow over her face during the latter part of the year 1922 while she was pregnant. She states this frightened her. The next occasion was on November 19, 1924. They were riding in Windsor Hills and on the way home got lost. She made some remark, and he again slapped her and told her to "shut up." It was more than two years later before further difficulty took place, and over some trifling matter he again slapped her and made her sit down. The husband then went to New York on business, and letters passed between them, in which he acknowledged he had done wrong and promised to be a model husband thereafter, with the result that they became reconciled. The next complaint was in April, 1927, when he again slapped her. This time the argument was started because she had made four engagements for him and herself in succession, and he objected because so many social engagements were too severe a strain for one of his constitution and business responsibility. Up to this time the wife states there were no marks as a result of these encounters.

Again she states that on December 25, 1927, they had been out playing cards, and when they returned he was furious and slapped and choked her, leaving slight marks on her neck. The seventh complaint referred to September 7, 1932, when on...