Burke v. Burke

• Decision Date: 22 June 1954
• Docket Number: No. 178,178
• Parties: BURKE et al. v. BURKE.
• Court: Maryland Court of Appeals

Page 637

204 Md. 637

106 A.2d 59

BURKE et al. v. BURKE.

No. 178.

Court of Appeals of Maryland.

June 22, 1954.

Rehearing Denied July 21, 1954.

James M. Burke, in pro. per.

Malcolm J. Coan and Howard Calvert Bregel, Baltimore, for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal by James M. Burke, appellant, from a decree granting a divorce a vinculo matrimonii to the appellee, Helen V. Burke, and incorporating in the decree a stipulation entered into by the parties.

On February 27, 1953, the appellee filed a bill of complaint against the appellant asking the chancellor to decree that the property at 801 Beechfield Road in Baltimore County be impressed with a trust in her favor in accordance with her interest in said property, and that an injunction be issued restraining the appellant from disposing of said property. On September 25, 1953, the bill of complaint was amended by adding an allegation that the appellant had abandoned and deserted the appellee for more than eighteen months. The amended bill asked, in addition to the relief prayed in the original bill, that she be divorced a vinculo matrimonii from the appellant. No demurrer was filed to the amended bill, which was answered by the appellant. From a decree granting the relief prayed, the appellant appeals.

In the appendix to the appellant's brief there is no testimony on the question of divorce nor are any of the facts as to the divorce recited in either the appellant's or the appellee's brief or in the opinion of the chancellor. The testimony of the appellee and one witness is contained in the appendix to the reply brief of the appellant. We will therefore decide the question of divorce, which was not seriously contested in this Court, on the evidence contained in the appendix to the reply brief. Grimm v. Virts, 189 Md. 297, 299, 55 A.2d 716; Naughton v. Paul Jones & Co., 190 Md. 599, 604, 605, 59 A.2d 496. The wife testified that the parties were married on December 31, 1936. Two sons were born as a result of that marriage, one twelve years of age and the other fourteen at the time of the hearing in the case. On August 1, 1950, the husband without any just cause or reason ceased to occupy the bedroom with his wife. He moved into another room in the house. He also removed all of his clothing and effects from her room. Since that time the wife has made several attempts to become reconciled with her husband without success, the husband having repulsed all such attempts. This abandonment by the husband has continued uninterrupted since August 1, 1950, and there is no reasonable hope or expectation of a reconciliation of the parties. Martha Warren, a servant in the home, testified that the appellee's conduct toward her husband was always kind, and that she was a faithful wife and good mother. She also testified that she started to work in the home in September 1950, and during the two years she worked there the parties occupied separate bedrooms. From this testimony we cannot say that the chancellor was clearly wrong in finding that the appellant had abandoned the appellee; that such abandonment which had continued uninterrupted for at least eighteen months was deliberate and final; and that the separation of the parties was beyond any reasonable expectation of reconciliation. Therefore, under the provisions of Code, 1951, Article 16, Section 33, the appellee was entitled to a divorce a vinculo matrimonii. Smoot v. Smoot, 200 Md. 216, 221, 88 A.2d 465, and cases there cited.

On March 30, 1948, the Title Guarantee Company of Baltimore, to which the parties to this case had the same day executed a deed, conveyed the property at 801 Beechfield Road, Baltimore County, '* * * unto and to the proper use of the said James M. Burke for and during the term of his natural life so that the said James M. Burke during his life time may and shall be authorized and empowered to take collect and receive the income rents issues and profits thereof and appropriate and apply the same to his own use and benefit and with full power in the said James M. Burke at any time during his natural life to sell mortgage lease or otherwise encumber but not to include the power to dispose of by will not only his life estate in the aforesaid property hereby conveyed but the interest of the remaindermen as set forth in this deed to the end that the said James M. Burke may by his own act and deed fully and effectually bar extinguish and encumber his own interest and the interest of said remaindermen in such manner as he may deem proper without any obligation on the part of any purchaser lessee or mortgagee to see to the application of the purchase money derived from said property and with the full right to consume the proceeds of sale. And from and immediately upon the death of the said James M. Burke then in the event said property shall be undisposed of unto the said Helen V. Burke Robert Joel Burke and James Madison Burke as joint tenants and not as tenants in common their assigns the survivor of them and the heirs and assigns of the survivor in fee simple.' (Italics supplied here.)

During the hearing of the case in open court before the chancellor, in the presence of the appellant and his solicitors and the appellee and her solicitor, without any objection from any of the parties or their solicitors, the following stipulation was read to the chancellor, typewritten, filed by the parties, and included in the record of the case: 'Mr. Bregel: If the Court please, we would like to enter into the stipulation that it is agreed by and between the parties and their respective counsel after due deliberation and consideration and after both litigants have been fully advised of their rights, as follows: One, that in the event of the signing of a Decree of absolute divorce in this case, that the property which is now divested [sic vested] in James M. Burke for life with full power to sell shall be restored by proper conveyances to the names of the parties to this cause, to wit: Helen V. Burke and James M. Burke as tenants by the entireties, subject to the present existing encumbrances thereon: It is further stipulated that as a result of any such decree that respective counsel will then take the necessary steps to secure for each of their respective clients an equal distribution of said property, fee simple property, and all of the household contents by either public or private sale or by division of the chattels to the end and intent that both of the litigants will have received an equal share of either the proceeds of such sale or an equal division of the chattels and furnishings and effects; It is further stipulated by and between the parties that any gifts of furniture or any other chattels or personal effects heretofore received by the defendant from his family, relatives or friends, shall be his individual property, and any gifts or other effects given by the members of the family of the wife, or her friends or relatives, shall be considered to be her property and not subject to the divisions herebefore stated.' The stipulation also contained, among other things, an agreement as to the custody of the children and the amount the husband should pay to the wife for their support. The husband agreed, among other things, to pay the costs of the court proceedings, the medical and dental bills for the children, and provide for their present and future education. The wife agreed to waive all claim for alimony, for support for herself, temporary, permanent, past, present, or future, and not to contract any debts for which the husband might be liable. It was also agreed that the children should attend the Baptist church.

In view of the finding by the court that the wife was entitled to a divorce a vinculo matrimonii, this stipulation was contained in the chancellor's decree of December 28, 1953, which in part follows: '* * * Helen V. Burke be and she is hereby divorced A Vinculo Matrimonii from James M. Burke. And It Is Further Ordered, That the fee simple property located at 801 Beechfield Road, Baltimore County, now...