Brooks v. Brooks

• Decision Date: 01 March 1945
• Docket Number: 13,14.
• Citation: Brooks v. Brooks, 184 Md. 419, 41 A.2d 367 (Md. 1945)
• Parties: BROOKS v. BROOKS.
• Court: Maryland Court of Appeals

41 A.2d 367

184 Md. 419

BROOKS v. BROOKS.

Nos. 13, 14.

Court of Appeals of Maryland

March 1, 1945

Appeals from Circuit Court, Anne Arundel County; James Clark, Judge.

Actions by Lena brooks against Benjamin Brooks to set aside a divorce granted to petitioner against defendant and to set aside a property settlement agreement between the parties. From orders dismissing the two bills, petitioner takes separate appeals.

Orders affirmed.

Eugene P. Childs, of Annapolis, for appellant.

George B. Woelfel, of Annapolis, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

Appeals in two cases, involving the same parties and growing out of the same circumstances, were heard together. Appellant in both is the former wife of appellee. She filed a bill of complaint against him in the Circuit Court for Anne Arundel County on September 22, 1943, claiming technical desertion while living together by his refusal to cohabit for a period of many years prior to the filing of the bill, and asking for alimony and further relief. An answer was filed by appellee denying the above allegation of the bill. A cross bill was also filed by appellee claiming that the refusal to cohabit was by the appellant and not by the appellee, and asking for a divorce a vinculo on the ground of abandonment. The first cross bill also claimed a voluntary separation, but this was amended, and the last mentioned allegation omitted. Then the appellant used the discovery Rules 2 and 3 of Part II of the General Rules of Practice and Procedure to propound 29 interrogatories to appellee, which were duly and fully answered. These interrogatories were entirely about appellee's finances. The record shows that on March 2 1944, there was a hearing on the merits of the case and testimony taken, but all of this testimony is not in the record. It appears, however, from the opinion of the Chancellor, which was not included in the record (contrary to the decisions of this court, Title Guarantee & Trust Co v. McCulloh, 108 Md. 46, 69 A. 434; Weaver v. King Md., 40 A.2d 511), but was later filed with the clerk at our request, that the appellant called the appellee to the stand and proceeded to examine him as to his property rights and that this examination continued for two hours or more until the court recessed for lunch. 'After lunch' (quoting from the opinion) 'the Court was advised that the parties had worked out a plan for the settlement of their property rights, and the plaintiff' (appellant) 'by her counsel in her presence moved for leave to amend her bill of complaint by adding thereto a prayer for a divorce a vinculo matrimonii'. This amendment was made, the appellant produced testimony, the appellee declined to submit any, and the Chancellor on the same day passed a decree divorcing the appellant from the appellee. The written agreement, settling the property rights of the parties, was then filed in the case, but it was not incorporated in the decree.

The appellant, during the proceedings above narrated, was represented by two capable and competent counsel, one from the Anne Arundel County Bar and one from the Bar of Baltimore City. On April 6, 1944, appellant through her present counsel, who was not one of those originally representing her, filed a petition to have the divorce decree stricken out, to have the amendment to her bill, wherein she prayed for a divorce, stricken out, and to have her case heard on the merits of the bill as originally filed. The grounds of this petition are thus set out therein:

'6th. That at the time of the hearing which was not upon the merits of the case, your petitioner was in an extremely confused, bewildered and disturbed state of mind and did not fully comprehend the situation and did not realize until several days after the decree had been signed that she had procured a divorce a vinculo matrimonii from the defendant.

'7th. That she did not know that the Bill of Complaint had been amended to include a prayer for absolute divorce until several days after the decree of divorce was filed and only after she had consulted other counsel who informed her of the meaning of said decree.

'8th: That the decree of divorce a vinculo matrimonii entered in this case on March 2, 1944, was a great surprise to your petitioner, as your petitioner had never sought such a decree.'

A demurrer to this petition was sustained, with leave to amend, appellant failed to amend, and the petition was dismissed. From the order of dismissal, appeal is taken here.

On April 8, 1944, appellant filed her bill of complaint in the Circuit Court of Anne Arundel County asking that the agreement of settlement of March 2, 1944, above referred to, be set aside. The bill states that appellant was 'told by one of her counsel that unless she signed the agreement of settlement * * * she would be turned out in the world without any support as her husband had no property or assets of consequence.' The appellant further alleged in the bill:

'4th. That naturally she was confused by the proceedings, and did not understand the legal terms used, and on the date of the hearing she was in an extremely confused, bewildered and disturbed state of mind and trusted largely in the advice of her chief counsel who it now appears, either by design or as a reckless disregard for her rights, left her, after her long years of servitude, poverty and suffering with but a doubtful contract, thereby preventing the Court from awarding unto her such support as the merits of the case should justify.

'5th. That the agreement of settlement does not properly set forth the terms as explained to her by her counsel, in that she understood that she was to have a home as long as she lived and the defendant, Benjamin Brooks, was to return to her articles and personal belongings that he wrongfully took from her and removed to his place of business on West Street, Annapolis, Maryland, Ex. 1.

'6th. That said agreement of settlement not only does not set forth the terms that she understood would be incorporated therein, but the signing thereof was induced by the statement of her counsel that the defendant, Benjamin Brooks, was possessed of very small means.'

Then is appended a statement of properties it is claimed the appellee owns and the further allegation is made: '8th. That your petitioner would never have signed the agreement of settlement had she been able at the time to fully comprehend its meaning, and had she not been induced to sign the same by her counsel.'

The agreement of settlement filed as an exhibit gives appellant $15 a week during her life, and she, in turn, releases the appellee and is his brother from all her claims against their properties, held in their joint names.

A demurrer to this bill was sustained with leave to amend, no amendment was made, and the bill was dismissed. The appeal from the order dismissing the bill, was heard here with the appeal from the order in the divorce case.

In the divorce case the appellant contends that it was granted in violation of equity rule No. 26 of the Circuit Court for Anne Arundel County, which provides that 'No decree in a suit for divorce shall be passed in less than thirty days from the filing of the bill nor on the cross-bill within thirty days from the filing of the cross-bill.' This rule was not certified to us by the Court and brought up in the record in the proper manner, but was furnished us by agreement of counsel after the hearing. We shall consider it as if brought up on writ of diminution. The bill originally filed by the appellant was one containing allegations sufficient to authorize the granting of a divorce a vinculo. In such a case, the Court could have granted a divorce under the prayer for general relief. Wald v. Wald, 161 Md. 493, 159 A. 97. In that case this Court first found that the wife was entitled to a divorce on her cross-bill although she did not ask for it, and the decree of the lower court was reversed for the purpose of giving her one. The wife then filed a motion to modify, on the ground that she did not want a divorce. The Court, while holding that she could get a divorce on a prayer for general relief without specifically asking it, said that she did not have to take it, and therefore modified the decree as requested. It appears, therefore, that the amendment made in the case now before us on the day the decree was filed was not necessary to enable appellant to get an absolute divorce, as she had a right to one under her original bill. As this original bill was filed more than 30 days prior to the decree, equity rule No. 26 of the Circuit Court for Anne Arundel County has no application.

The main contention made by the appellant in both the divorce case and in the case...