Brown v. Brown

• Decision Date: 02 April 1952
• Docket Number: No. 129,129
• Citation: 199 Md. 585,87 A.2d 626
• Parties: BROWN v. BROWN.
• Court: Maryland Court of Appeals

Page 585

199 Md. 585

87 A.2d 626

BROWN v. BROWN.

No. 129.

Court of Appeals of Maryland.

April 2, 1952.

Stanford Hoff and Donald C. Sponseller, both of Westminster, for appellant.

Robert E. Clapp, Jr., Frederick, for appellee.

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

COLLINS, Judge.

This is an appeal from an order of the Circuit Court for Carroll County that further proceedings in a suit for separate maintenance be suspended.

On September 14, 1950, the appellant filed a bill of complaint against the appellee is which she alleged among other things the following: He had treated her with great cruelty, striking and beating her, and had failed to support her and their two infant children. He owned numerous parcels of real estate, music boxes, pinball and cigarette vending machines, mortgages, and notes. He was the owner and operator of a light lunch and soda fountain. From all of these operations he had an income of about three thousand dollars monthly. He had threatened to dispose of these assets for the purpose of depriving her and the children of support. On account of his treatment, her health had been so impaired that she could not obtain employment and she was without any income. She asked for custody of the infant children, alimony, alimony pendente lite, counsel fees, that the husband be enjoined from disposing of his real estate and personal property, and for other and further relief. The husband filed an answer in which the material allegations of the bill were denied. The chancellor filed an opinion finding the net income of the husband to be about $3,000 yearly, that he was heavily in debt, and awarding the wife by order dated September 14, 1950, $37.50 per week as alimony pendente lite.

On January 12, 1951, the husband, appellee, filed a petition in the case alleging that he had paid the alimony pendente lite and counsel fees. Notwithstanding this his wife, on or about December 15, 1950, and on several occasions thereafter, did break and enter his store property and apartment and remove between $1,500 and $2,000 in cash, $1,200 in United States Bonds in his name alone, bank books in the names of his children, and certain deeds. She also removed and recorded a deed to a property which had not previously been recorded. She removed his business records, articles of household equipment, linens, pictures of his children, Christmas decorations and other articles, all of which belonged to him. She left a letter in which she said she had deposited the money in bank; the deeds, bank books, and bonds in the safe deposit box. She had taken the Christmas ornaments for the children. She wrote that she had 'sought my attorney's advice and State Police are aware of my actions. I also have witnesses that are neutral'. He asked that she be directed to account for the money, bonds, records, and other things taken; that she be ordered to return them to him; and that she be ordered to refrain from molesting him and his premises. Appellant demurred to that petition.

On April 18, 1951, appellant filed a petition to amend her amended bill of complaint, which petition was granted. On the same day she filed an amended bill which, in addition to the matters alleged in the former bill, charged her husband with adultery upon numerous occasions. She also alleged that she and her husband were owners as tenants by the entireties of certain real estate which the husband had not properly managed, the rents from which he had retained. She asked for custody of the children, alimony and alimony pendente lite. She further asked that the Court appoint a receiver to care for, manage and collect the rents and income from all of the properties owned by her and her husband as tenants by the entireties, and that her husband be required to account to her for her proper share of the rents since August 28, 1950. The chancellor ordered that the previous order of September 15, 1950, be continued in full force and effect. The appellee filed an answer denying the material allegations of the amended bill.

On May 18, 1951, the chancellor filed an order overruling appellant's demurrer to appellee's petition of January 12, 1951, with leave to the appellant to answer. An answer was filed by the appellant on May 28, 1951, in which she stated that she entered the property, which had formerly been occupied by her as a home, with a key which she had in her possession. She admitted removing the money and property which she said belonged to her or in which she or her children had some right or ownership. She admitted removing some of her husband's records because he had without authorization used her name in making his 1949 income tax return, and had refused to inform her thereof. She admitted removing from the apartment which she shared with her husband before the separation, certain articles belonging solely to her and her two children which he had wrongfully refused to turn over to her. She said she had returned to him a $1,000 United States Bond registered in his name alone, and all other bonds registered in his name but payable on death to her or their two children. She alleged that she had not disposed of any of the money or property removed. The docket entries show that a hearing was held on the petition and answer on September 14, 1951. The testimony taken at that hearing does not appear in either the transcript or the record. On September 24, 1951, the chancellor filed a memorandum in which he recited: "A wife has no interest in the personal property of her husband, or any portion of its proceeds and profits, and on leaving her home she cannot take from the home the household goods without his consent.' Johnson v. Johnson, 125 Mich. 671, 85 N.W. 94.' The chancellor pointed out therein the award of alimony of $37.50 per week; that there was no default in the alimony; and that the wife entered the husband's home and removed property, in some of which she admits she had no interest. He further recited: 'She sought the aid of this Court in her domestic difficulties and some relief has already been afforded her. There is a maxim in equity that he who seeks equity must do equity, and another that he who seeks equity must come with clean hands. When the plaintiff entered her husband's home and took property therefrom, without his consent, she was doing an act not authorized in law and, therefore, the maxims are applicable. As the plaintiff resists the petition and is unwilling to do equity,' the chancellor thereupon passed an order on September 24, 1951, ordering 'that the further prosecution of these proceedings be suspended until such time as the plaintiff, Edith Baker Brown, returns the property which she removed on or about December 15, 1950, from the defendant's residence without his consent.' From that order the appellant appeals.

As a result of a petition filed by the wife the chancellor ordered the husband to pay $300 to the solicitors for the appellant for the purpose of prosecuting the appeal. From that order the wife appeals and the husband cross-appeals.

It is well established in this State that in the absence of statute, the equity courts have no power to transfer the property of...