Fischer v. Fischer

• Decision Date: 04 November 1943
• Docket Number: 17.
• Citation: 34 A.2d 455,182 Md. 281
• Parties: FISCHER v. FISCHER.
• Court: Maryland Court of Appeals

34 A.2d 455

182 Md. 281

FISCHER v. FISCHER.

No. 17.

Court of Appeals of Maryland

November 4, 1943

Appeal from Circuit Court No. 2 of Baltimore City; Samuel K. Dennis Chief Judge.

Bill for divorce a mensa by Romaine Fischer against William C Fischer. From a decree denying divorce, complainant appeals.

Reversed and case remanded.

Where husband, though able to do so, made no attempt to provide a separate home for his wife and child, but insisted upon wife's living in home run by husband's mother, and husband treated wife's complaints as complaints of a child, wife was justified in leaving the husband, and was entitled to divorce on ground of "constructive desertion."

George M. Brady, of Baltimore, for appellant.

Harry B. Wolf, Jr., of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON MELVIN, ADAMS, and BAILEY, JJ.

MARBURY Judge.

This is a bill for divorce a mensa by a wife, alleging cruelty, excessively vicious conduct and abandonment. Testimony was taken in open court, and at its conclusion a decree was signed, denying the divorce, but assuming jurisdiction to protect the rights of the infant child, now a little over four years old. The child was awarded to the wife with the usual privilege of seeing it at reasonable times given to the husband, and the husband was directed to pay the sum of $15 a week for support of the child. From this decree the complainant appeals.

It may be stated at the outset that there is no evidence in the record of excessively vicious conduct or cruelty of treatment in any physical sense. The husband is shown to be a man interested in various business affairs, not spending a great deal of time with his wife, but the testimony does not show that his conduct towards her was in any respect improper, or that he ever engaged in any acts of physical cruelty towards her. The third ground, namely, abandonment and desertion, is the one, therefore, upon which the case rests. Inasmuch as the wife left the husband, the abandonment charged is constructive. In order to entitle the wife to a divorce, it must appear from the evidence that she had sufficient cause to leave her husband. His conduct may give such cause, even though it may not amount to cruelty. Kruse v. Kruse, 179 Md. 657, 22 A.2d 475.

The parties were married in February, 1938. The husband was forty years old at the time of the taking of testimony and the wife was twenty-five. He had been married before. She had not. He had known her fifteen or eighteen years, according to his testimony, and according to hers, practically all her life. He had been visiting her four years before they were married. At the time of the marriage the husband was living with his mother, who was a widow, at 1186 Nanticoke Street in the City of Baltimore. It was a double house with a saloon downstairs, and there were approximately six rooms upstairs with a hall running through. The family kitchen was downstairs, and there was one bathroom upstairs. To this home the defendant took his wife after they were married, but she was never given a place at the head of the household. The husband's mother had charge of the running of the establishment, did the purchasing for the family meals, and did all the cooking. She continued doing just as she had done prior to the marriage. The only difference was that the wife and husband occupied one room, and after the arrival of the baby, a second room, of which the wife had charge. There is much in the record about the presence of roaches and other disagreeable insects in the house, but it is unnecessary to discuss that phase of the case. If the wife had charge of the home, the responsibility of keeping it free from pests of this nature would rest upon her. The question is not whether the home was properly kept. It is rather who was put in charge of it, and of this there seems to be no question. The mother of the husband continued to manage it just as she had always done, the food was of her choice, and the kind that she had always had, and the wife was to all intents and purposes, a boarder.

The wife testified that she knew that when she was married she was to be taken to the house on Nanticoke Street, and that she was satisfied to go at the time. She stated that she knew from the beginning that her mother-in-law objected to her entirely, so she wanted a home of her own, and she started right in to plead for one. After the baby came there was some dispute with the mother-in-law about correcting him, and the wife asked the mother-in-law to leave him alone, and for the past two years the wife and mother-in-law did not speak, or at least only spoke when it was absolutely necessary. The wife testified that she only cooked for the baby, that she did not help her mother-in-law in the kitchen, because the latter would not let her. 'That was her own home', and the wife said that she had practically nothing to do with anything, that she was practically a maid, and neither her mother-in-law or her husband would let her have anything to do. On one occasion the wife asked her husband to please take her out of the place, and she couldn't stand it any longer under those conditions, and that she would be satisfied if he would just take two rooms for them. He refused and she then said that she was going to do something about it. The husband replied, 'Well, go ahead and go'. The wife said that, 'She would if it weren't for the baby', and the husband said, 'Don't worry about the baby, I will give you three dollars a week for him'. The wife the next morning sent for her mother, but the latter persuaded her not to leave. The husband gave as his reason for refusing that his business was there and he couldn't leave. It is a little difficult to understand just what he meant by this, because, while he owned the property and rented it to the man who kept the saloon, both he and the man who kept the saloon denied that he had any interest in the place of business. It appears, however, that all of the bills of the place of business were paid by his check, that he went there every Sunday morning and kept bar, that he had an interest in some pin-ball machines which were formerly in the place, and that he bought some more for the saloonkeeper, although this was explained as being a loan. It was also shown that on Friday evenings the husband did a considerable business in cashing checks for people coming into the saloon, the record showing that he made about $30 an evening, and he himself saying that the check business was very promising. The husband also owned some other properties, was the head of a finance company which loaned money on automobiles, and did some personal financing on his own. It was admitted by his counsel that his yearly income was $6,544. His bank account, which was put in evidence, shows that during the period of several months, he had at times very large sums in bank, sometimes amounting to $19,000, and frequently running in excess of $10,000. He was amply able to support his mother and to provide a separate home for her, or to get another home for his wife, and in fact admitted that he could. In his testimony he said that he was prepared to offer his wife an independent home away from his mother, if she would come back, although he did not deny that he had refused some two or three months before she left. He told the court that when his wife was talking to him about it, that then things were so high, and on account of the draft situation (although he was over 38 years old), he didn't think it was the proper thing to buy anything, and that apartments and homes were high and hard to find. He did not, however, testify that he had made any effort whatever to find a separate place, and it is apparent that he did not intend to. He brought his wife home to live in his mother's home, and expected that she and he would live there together under the same conditions that he had lived previously with his mother running the house, doing the cooking, and his wife simply being an added member of the household without any authority over it.

The husband's mother testified. She admitted that they all had a common place where they ate, that she did the housekeeping and the cooking, and that two years prior to the hearing, her daughter-in-law told her she did not want her to have anything to do with the baby because of some candy she was giving him, and from that time she didn't say much to her daughter-in-law and her daughter-in-law didn't say much to her. She did not testify at all either way concerning the desire of her daughter-in-law for a separate home. The husband admitted that the wife protested to him about living with his mother, and when asked what was the complaint, said that the protest was against his mother and the neighborhood, and the main thing was the neighborhood.

The testimony of the husband himself is sufficient corroboration of the wife's, although there is the additional testimony of the wife's mother, who went to see the husband after the time he had told his wife to go, and asked him if he meant it. As the result of this conversation, she persuaded the wife to stay longer. The husband did not make any attempt to get his wife back after she left, and went to her mother's home, although he said at the trial that he wanted her back. He appeared to have been kind to her in his way. She made no complaint about the amount of money he gave her. He occasionally gave her presents, one being an expensive wrist watch, and also a ring. She had entire freedom of going out at all times, and did in the last part of her married life spend every evening with her baby at her mother's. She seems to have been well enough treated as far as her station in life...