Daiger v. Daiger

• Decision Date: 09 February 1928
• Docket Number: 92-94.
• Citation: 140 A. 717,154 Md. 501
• Parties: DAIGER v. DAIGER (THREE CASES).
• Court: Maryland Court of Appeals

140 A. 717

154 Md. 501

DAIGER v. DAIGER (THREE CASES).

Nos. 92-94.

Court of Appeals of Maryland

February 9, 1928

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

Suit by Katherine S. Daiger against John M. Daiger. From decrees dismissing the bill of complaint, ordering plaintiff to pay part of the costs of appeal, and refusing to continue alimony from the time of dismissal to final determination on appeal plaintiff appeals. Decree of dismissal affirmed, other decrees reversed, and case remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Philander B. Briscoe and Willis R. Jones, both of Baltimore, for appellant.

Isaac Lobe Straus, of Baltimore (Carlyle Barton and Niles, Barton Morrow & Yost, all of Baltimore, on the brief), for appellee.

DIGGES J.

There are three appeals in this record: First, from the decree of the circuit court of Baltimore City, under date of June 22, 1927, dismissing the bill of complaint; second, from the decree of July 20, 1927, ordering the appellant to pay two-thirds of the costs of this appeal, and requiring her to deposit with counsel for the appellee a note, due from the appellee to her, in the sum of $1,362.50, as security for her proportion of the costs; and, third, from the action of the court taken on September 15, 1927, refusing to continue the alimony from the time of the decree of the lower court dismissing the bill to the final determination upon appeal from that decree to this court. The bill of complaint in this case was filed by the appellant, the wife, against her husband, the appellee, for divorce a mensa et thoro on the ground of abandonment and desertion, the date of such abandonment being alleged as beginning on the 28th of April, 1926. The relief prayed for is that she be divorced a mensa et thoro; that she be awarded alimony pendente lite and counsel fees; that she be awarded the guardianship and custody of the two infant children; and for permanent alimony. The questions thus presented are simple and are three in number: First. Did the living apart of the parties, which the record discloses began on April 28, 1926, take place or continue under such circumstances as constitutes abandonment and desertion by the husband for which the wife is entitled to a decree of divorce a mensa et thoro? Second. Should a wife, in the financial circumstances such as disclosed by this record, be compelled to pay any portion of the costs of her appeal to this court from a decree of the chancellor denying her a divorce? Third. Is a wife, under the circumstances here shown, entitled to alimony pending a decision of the case on appeal to this court?

In order to determine the first of these questions it is necessary to examine the evidence adduced in behalf of the respective contentions as gathered from the record, and apply such facts to the definition of abandonment and desertion as repeatedly laid down by this court, as well as by text-writers and courts of other jurisdictions. In the case of Klein v. Klein, 146 Md. 27, 125 A. 728, after quoting the Code, art. 16, § 38, we said:

"Abandonment or desertion, as a marital offense, consists in the voluntary separation of one of the married parties from the other, or the refusal to renew suspended cohabitation, without justification either in the consent or the wrongful conduct of the other party. 1 Bishop on Marriage, Divorce and Separation, §§ 1662, 1663; Gill v. Gill, 93 Md. 654 ; Taylor v. Taylor, 112 Md. 666 ; Buckner v. Buckner, 118 Md. 101 [84 A. 156, Ann. Cas. 1914B, 628]."

In that case the court set forth the necessary elements to constitute desertion, and there are collected numerous authorities in support of its declaration. It was there said:

"A divorce for abandonment and desertion may be granted without regard to duration. Brown v. Brown, 2 Md. Ch. 316; Harding v. Harding, 22 Md. 337; Young v. Young, 136 Md. 84 ."

The law on this subject being so well settled, there can be very little difference on that score, even among counsel; and the first question mentioned above resolves itself into whether or not the evidence on behalf of the appellant meets the test prescribed by law. In a case decided in 1850, in which, singularly, the parties were also Daiger v. Daiger, 2 Md. Ch. 335, Chancellor Johnson used language which is particularly applicable to the record now before us. He stated: "A vast mass of evidence has been taken, and a great deal of time consumed, in the discussion of this evidence. I do not deem it necessary, and I certainly feel no inclination, to follow counsel in their investigation of facts, not essential to the point to be decided; and my disinclination to do so is not diminished, in this case, by the nature of these facts."

We have here a record of 858 pages, 800 of which are taken up with testimony describing in detail the alleged marital infelicities of the parties from the date of their marriage in 1916 to the date of the hearing in the summer of 1927. Much of this testimony is of an inconsequential and irrelevant nature, interspersed with discussions and colloquies between counsel and between court and counsel, in the course of which there are probably a thousand rulings of the court on evidence, and hundreds of exceptions taken to such rulings. Counsel for the appellant in their brief say:

"To attempt to discuss the exceptions would create a brief almost as extensive as the record itself. We, however, waive none of these exceptions, and submit that the record is replete with reversible errors upon the evidence."

Were this court to pass in detail upon each one of these rulings, and state ever so briefly its reason for the conclusion reached thereon, the result would probably require one full volume of our reports for its record. It is not our purpose or intention to circumscribe or limit legitimate, material, and pertinent testimony contained in records coming to this court, but only to suggest to trial courts, and admonish counsel, that they should endeavor to limit the evidence in such cases to that which is material, relevant, and directed to the point at issue. As stated, the evidence in this case begins with testimony as to the conduct and language of the parties as far back as 1916, the appellant contending that the actions of the appellee, so remote as that, constitute justification for her leaving, and the appellee contending, on the other hand, that similar words and acts on the part of the appellant justified him in leaving her, admitting for the sake of the argument that he did leave her. A complete answer to both of these contentions is that the parties on several occasions separated and lived apart from each other, and after such separation, voluntarily and of their own accord, reunited and lived together; the last of such reunions having been in March, 1925.

We have consumed much time in a thorough examination of this record and have reached the conclusion that a very large part thereof has no legal pertinency upon the question of whether or not Mr. Daiger abandoned and deserted his wife on April 28, 1926, and, if so, whether her conduct justified such abandonment. The chancellor reached the conclusion that there had been no abandonment and desertion by the husband such as the law recognizes as a ground for divorce; and with this conclusion we agree. Regardless of what had taken place prior to the date of the last reunion, which might or might not constitute abandonment by one or the other, all such causes were condoned, obliterated, and canceled, as a basis for future divorce action, when they voluntarily resumed full and complete marital relations, as evidenced by the subsequent birth of a child in January, 1926. The parties...