Brett v. Brett

• Decision Date: 15 January 1936
• Docket Number: 51.
• Citation: 182 A. 305,169 Md. 704
• Parties: BRETT v. BRETT.
• Court: Maryland Court of Appeals

182 A. 305

169 Md. 704

BRETT v. BRETT.

No. 51.

Court of Appeals of Maryland

January 15, 1936

Appeal from Circuit Court, Allegany County; D. Lindley Sloan, Judge.

Suit by Susan Brett against Henry Brett, Jr. Decree for plaintiff and defendant appeals.

Reversed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, MITCHELLSHEHAN, and JOHNSON, JJ.

J Philip Roman and Walter C. Capper, both of Cumberland, for appellant.

William A. Gunter and Taylor Morrison, both of Cumberland (William A. Huster, of Cumberland, on the brief), for appellee.

MITCHELL Judge.

On November 28, 1934, Susan Brett, the appellee(wife), filed in the circuit court for Allegany county, Md., her bill of complaint against Henry Brett, the appellant(husband), in which she prayed for a divorce a mensa et thoro, the guardianship and custody of their two infant children, alimony pendente lite and permanent, and counsel fees.The bill alleges that the parties were married on September 2, 1922, and lived together in the city of Cumberland until about two weeks prior to the filing of the bill; that two children were born by virtue of said marriage, namely, Mary P. Brett, ten years, and Henry Brett, 3d, nine years of age; that the husband for some time prior to the filing of the bill had treated the wife with great cruelty, harshness, and brutality, at times striking and beating her; and that on or about the 10th day of November, 1934, his conduct became so intolerable that she was compelled to leave his home with her children.It is further alleged in the bill that the husband is seized and possessed of real and personal estate of the approximate value of $15,000; that the wife is wholly destitute of means; that she has been a faithful, affectionate, and chaste wife towards her husband; and that her conduct has always been above reproach.The husband filed his answer, in which he admitted the marriage, the birth of the children, and the separation of the parties, but denied all of the other material allegations of the bill; submitting, nevertheless, that, while his wife was a chaste woman, her conduct towards him had not been always above reproach; that the value of his property would not exceed the sum of $7,500; and that he had provided a home for his family, at which he was then living, and where he was willing to receive his wife and children and maintain them.After hearing testimony in open court, the chancellor passed a decree for a divorce a mensa et thoro in favor of the wife, awarding to her the permanent guardianship and custody of the two children, with the right to the father to have their society at stated periods; and directed that the husband pay to the wife the sum of $75 per month permanent alimony, computed from the 28th day of March, 1935.

The record shows that at the time of the taking of testimony, the husband was 51 and the wife 33 years of age; that the husband is a graduate of Harvard University, and was at the time of his marriage employed with the Kelly-Springfield Tire Company in its Cumberland plant, later becoming an experimental engineer.While in this service he met the appellee, whom he married after an acquaintance of about seven months.Upon their marriage, they located in the city of Cumberland, and later purchased a home, in which they resided down to the date of their separation.This property originally cost approximately $7,835, and at the present time is subject to a mortgage of $2,840.There is a dispute between the parties as to whether the wife contributed $350 or $1,100 towards its purchase; but, in any event, the property was conveyed to them as tenants by the entireties.While, as is unfortunately usual, the relations of the husband and wife were not at all times entirely harmonious, a review of the whole testimony indicates that they lived together in reasonable comfort and happiness from the date of their marriage until in October, 1933, at which time the husband, because of the discontinuance of the work at the Kelly-Springfield Company in which he was employed as a technical engineer, lost his position; and, indeed, after the time at which he ceased to be employed with the company, there seems to have developed no serious trouble with his wife until the day before her separation.

It is apparent that at least since the date of his marriage the husband has been a user of alcoholic stimulants, and that at times this use has been carried to excess; and it is also apparent that the wife, throughout her married life, has not approved of this indulgence.It is testified on behalf of the husband, by a fellow employee, that during his entire service at the Kelly plant he saw Brett daily; that he was a steady worker, and that he had never seen him intoxicated.It was after he ceased to be employed that his consumption of whisky seems to have increased, to the corresponding displeasure of Mrs. Brett, whom the record shows to be a refined Christian woman.

There is testimony in the record on the part of Mrs. Brett that on several occasions prior to the controversy resulting in the separation her husband ill-treated her; and for the purpose of analyzing them it might be well briefly to refer to them in some detail.

The first occasion appears to have been as far back as during the first three years of the married life of the couple, when the husband is alleged to have hit the wife on the head with his hand, and when she admits she struck back.This incident is entirely uncorroborated.

A second occasion was in the spring of 1934, when it is alleged he hit her in the face with his open hand, resulting in chipping a small piece from one of her teeth.It is also alleged that at this time he struck her three or four times, causing a disarrangement of her hair.This testimony is corroborated by a neighbor, Mrs. Earle, to the extent that Mrs. Brett showed her a lower tooth which was loose, and that a small piece was chipped from one corner of an upper tooth.It might be added that Mrs. Earle did not see the blow administered, and that Mrs. Brett afterwards went to her dentist for another purpose, but no treatment for this injury was at that time necessary, the tooth having become tightened.

A third incident occurred also in the spring of 1934, when it is testified by Mrs. Brett that a controversy arose which grew out of the action of Mr. Brett in disciplining their son.Upon her making inquiry as to the reason the child was crying, the husband resented her intervention; and, as she turned to leave the scene and started up the stairway, he kicked her, leaving "a mark two or three inches in diameter," which remained for over a week.This latter episode is corroborated by their daughter; but it is asserted on behalf of the husband that the daughter, from the position which she stated she occupied outside of the house at the time she claims to have seen her father kick her mother up the steps, could not have witnessed such an occurrence.

A fourth difficulty is alleged to have taken place within the year preceding the date of the separation, when the wife testifies: "I was washing dishes, and Mr. Brett was quite drunk, and he came out and offered to help me, and I said, 'No, thank you'; and I picked up some garbage that I had in a paper, and as I went out, he kicked me.He kicked me in the rear of my body.That kick left a mark.I just put the things in the can and came back in the house."This incident is corroborated in a very indefinite manner by Mary Brett, the ten year old daughter, who said that she saw her father kick her mother down the back steps.

At the same time she corroborates her mother as to a fifth occurrence, growing out of the following circumstances, as detailed by Mrs. Brett: "Well, I know one time he asked me to take the children to the Fair, and he was drinking then, and he said he would take us out and call for us, and he dropped us off at the circle, and he said he would call for us at a certain hour, and I was there ten minutes ahead of the hour, which I think was 5:30; and some of the neighbors saw us waiting, and offered to bring us in--that was Mr. and Mrs. Wadell, but I told them I was waiting for my husband and he would be there at a certain time.So they waited with us fifteen minutes after the time, and then they brought us in.When we got home, we found Mr. Brett quite tight.He had gone out to get us, and when he found we weren't there, came straight back, and I told him I thought it was not kind to make us wait there, when he had left; and he then picked up a paper, rolled it up, and threw it at me and hit me in the eye."

It will be noted that all of the several incidents to which reference is above made, except the first, seem to have occurred during the year in which the separation took place, and during a period in which the husband appears to have been at times drinking to excess.But in none of them does the result of any injury seem to have been serious, as is evidenced by the fact that no medical aid was sought and that the parties continued to live together.

Meanwhile assuming that these unfortunate and unwarranted incidents did take place, although they are strenuously denied by the husband, and in some instances are uncorroborated, it is worthy of note that during this same period Mr. and Mrs. Brett, accompanied by their children were making extensive pleasure trips in various sections of the country.In the month of June, 1934, they visited Romney, W. Va.; and a little later they visited Hershey, Pa., Harrisburg, Steelton, Spruce Knob, the highest point in the Alleghenies; Davis, W. Va., and Blackwater Falls.They spent the 4th of July at Mt. Storm, W. Va.; and later they visited Gorley's Lake, near Uniontown, Pa., and Bedford Springs Hotel, in Pennsylvania.About...