Childs v. Childs

• Decision Date: 23 July 1878
• Citation: 49 Md. 509
• Parties: ELIZABETH A. CHILDS v. JOHN W. CHILDS.
• Court: Maryland Court of Appeals

49 Md. 509

ELIZABETH A. CHILDS v. JOHN W. CHILDS.

Court of Appeals of Maryland

July 23, 1878

Appeal from the Circuit Court of Baltimore City.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., BOWIE, STEWART, GRASON and MILLER, JJ., for the appellant and submitted for the appellee.

William Shepard Bryan and John W. Skipper for the appellant.

R Emmett Jones, for the appellee.

Bowie J., delivered the opinion of the court.

The appellee filed his bill in the Circuit Court of Baltimore City, on the 7th of July, 1877, praying a divorce " a mensa et thoro" from the appellant.

It is alleged by the bill substantially that the parties were married about the 10th of February, 1876, and lived harmoniously together for about two months, when the appellant became quarrelsome and abusive without cause and intolerable in her conduct towards the appellee. It is specifically charged that the appellant, without reasonable provocation, upon one occasion, at least, locked the appellee "out of their residence and home for three days and nights; threatened him with violence, and finally, about the 27th of June, 1876, ordered him from their residence and home and forbade his return."

The bill further charged the appellant, generally, with cruelty abandonment, and continued desertion.

The appellant, by her answer, denied all the charges of misconduct, general and specific. A general replication being filed, a commission was issued to take testimony, which was duly executed and returned.

The appellee produced and examined several witnesses in support of the allegations of his bill, and also filed a letter from the appellant to himself, and one from himself to the appellant. No testimony was produced by the appellant. The cause was submitted without exception to the evidence and without argument. On the 31st of October, 1877, a decree was passed divorcing the appellee from the appellant, " a mensa et thoro," from which this appeal is taken.

The decree below is assailed for the following reasons:

1st. That the evidence of abandonment and desertion consists exclusively of declarations of the wife, which, conceding for argument sake to be competent testimony, were insufficient grounds for divorce, because provoked by the fault and misconduct of the appellee.

2nd. The appellee will not be allowed to take advantage of his own wrong.

3rd. The declarations of a party to a suit for divorce are excluded as evidence by the policy of the law. The material facts disclosed by the evidence are few and simple and embraced in a very brief period of time.

Both parties had been previously married, each having adult children living, the issue of their former unions.

The appellant was in good circumstances, keeping house and living comfortably.

The appellee had been in business, but was compelled to compromise with his creditors, and wind up. During the courtship an estrangement occurred which led to a mediation through a mutual friend, and explanations from the appellee, in which he declared "he wanted to marry Mrs. Coleman (the appellant) for love, and not for money, and if she can afford to live in this property, in this style, I can easily bring in enough for the food and clothing of myself and son and more than that;" and in further conversation said, "he thought he would have enough to start in business, and be able to support the family; that when he had settled his business he would be worth $4,000 or $5,000."

These statements were communicated in part to the appellant. The parties were married in February, 1876. A few months afterwards the apppellant complained to the witness that she was awfully deceived in the appellee, that he had awfully deceived the witness; "he had no clothing," "nor did he do the least thing for the family, as he promised he would."

"She stated to the witness that complainant had threatened her and shaken his fist in her face, and refused to give her any money to provide for the family, and she would not stand it any longer." She said to the witness, Wysong, "she could not support him, (the appellee,) out of her income, as he had failed to do certain things he had promised before marriage."

It was further proved that the appellant had borrowed money three or four times, from her trustee, assigning as her reason that her husband brought in no money at all.

No evidence is adduced to prove the quarrelsome disposition or abusive and intolerable conduct of the appellant towards the appellee. The fact of locking out appears to have been admitted, but the parties resided together afterwards, and it must be considered as condoned. To another witness, she said, "Mr. Childs did not bring in any money for the necessary support of the family; that his son had behaved improperly, and given her impudence, and Mr. Childs had threatened her in language she would not submit to, and she said he left and she would never allow him to come back."

No attempt has been made to impeach the truth of these declarations by the appellee, and being offered by him must be regarded as conclusive of the facts to which they refer. It is shown by other testimony, incidentally, that the appellant's property was vested in a trustee, and her income was not more than sufficient to maintain herself and her son comfortably; that she had been obliged to sell her carriage and horses, and borrow money.

From the representations and assurances of the appellee, as...