Foxwell v. Foxwell
| Decision Date | 14 January 1914 |
| Citation | 89 A. 494,122 Md. 263 |
| Parties | FOXWELL v. FOXWELL. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City, in Equity; James P. Gorter, Judge.
"To be officially reported."
Suit for divorce by H. Webster Foxwell against Hattie M. Foxwell. From an order vacating a decree for plaintiff, he appeals. Affirmed.
Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.
James Fluegel, of Baltimore (O'Mara & Angelmier, of Baltimore on the brief), for appellant.
Lewis Hochheimer, of Baltimore, for appellee.
The petition in this case was filed by the appellee, Hattie M Foxwell, asking that the enrollment of the decree by which she was divorced a vinculo matrimonii from her husband, the appellant, and the care and custody of her three minor children awarded to him, be annulled and set aside. As alleged in her petition, she, on the 17th day of April, 1907 filed a bill in the circuit court of Baltimore city against her husband, H. Webster Foxwell, charging him with abandonment and cruelty of treatment, and praying for a divorce a mensa et thoro and other relief; that he, on the 12th day of May, 1908, after having been summoned in the proceedings instituted by her, filed his cross-bill praying for a divorce a vinculo matrimonii from the plaintiff on the ground of alleged adultery. The right of each to the relief prayed for in their respective bills was heard by Judge Heuisler, sitting in the circuit court, and on the 8th day of October, 1909, a decree was passed divorcing the plaintiff, Hattie M. Foxwell, a mensa et thoro from the defendant, H. Webster Foxwell, and awarding Esther Foxwell, the youngest of their infant children, to her care and custody, and ordering the defendant to pay unto the plaintiff the sum of $25 per mouth for her maintenance and support. From this decree no appeal was taken, and while it was still in force, as the petition alleges, the said H. Webster Foxwell and his solicitors, who were his solicitors in the divorce proceedings in which the above decree was passed, and to whom the matters above stated were well known and understood, fraudulently and corruptly contriving, designing, and devising to defeat the operation of said decree and to obstruct the administration of justice, on the 6th day of April, 1911, filed their bill of complaint in the present suit--in the circuit court No. 2--alleging that on the 15th day of January, 1906, the petitioner had abandoned and deserted him, the said H. Webster Foxwell, and further alleging, in vague terms, that she had committed the crime of adultery with divers men, to the plaintiff unknown, at various times and places, and praying for a divorce a vinculo matrimonii and for the custody of the infant Esther Foxwell, who, at such time, was in the care and custody of her mother, the petitioner, and a ward in chancery of said circuit court of Baltimore city, under the provisions of the decree above mentioned; that said allegation of adultery was "a pure fiction, a willful and corrupt falsehood, and that throughout the testimony taken in support of his bill absolutely no attempt was made to introduce any evidence, even in the remotest degree, tending to establish it"; that "the cause was never heard upon its merits, there having been a decree pro confesso under which the ex parte testimony was taken," and upon which the final decree was passed; that the evidence of abandonment and desertion offered by him covered the period of time when she lived apart from him under the sanction of the decree in the former case; that the fact of the passage of said decree by the circuit court of Baltimore city on the 8th day of October, 1909, "was willfully, fraudulently, and corruptly concealed and suppressed throughout the whole proceedings" before Judge Stump, sitting in circuit court No. 2, who subsequently, on the 27th day of June, 1911, without knowledge of said proceedings and the decree granted therein, passed a decree divorcing the said H. Webster Foxwell a vinculo matrimonii from his wife, the petitioner, and granting to him the care and custody of all their infant children, including Esther Foxwell. The petition further alleges that the passage of such decree was procured by H. Webster Foxwell in consequence of the fraud and imposition practiced upon the petitioner and the court; that when summoned to appear before the court to answer the bill in such divorce proceedings she, Hattie M. Foxwell, hastened from her home in a distant part of the state to the office of the clerk of the circuit court No. 2 of Baltimore city, where, as she alleges, she was informed by one
"supposedly in authority" that she need not come into court until further notified, and that, as she was without funds enabling her to remain in the city, or with which to employ counsel, she returned to the home of her father in St. Mary's county, without having employed counsel, expecting to be further notified when her presence in the city was needed; that not until she received a letter from H. Webster Foxwell's solicitor, dated July 19, 1911, inclosing a copy of the decree and threatening her with contempt proceedings if she did not give up her child confided to her by the circuit court of Baltimore city in the decree in the former case, did she know of the passage of said decree, and that "she was taken utterly by surprise" when she so heard of it; that "immediately upon receipt of this letter she hastened to Baltimore and in her distress and poverty applied to Alexander H. Robinson, Esq., who, as she learned, was the master in chancery who had passed on the cases; it was through his good offices and advice that the counsel who now appears for her was interested in her behalf." The counsel so employed, as disclosed by the record, on the 31st day of October, 1911, filed a petition, for and on her behalf, asking that the decree be stricken out. The defendant filed a demurrer to this petition, which demurrer was sustained by an order of Judge Harlan, passed on the 15th day of March, 1912, in which order he refused to strike out the decree of June 27, 1911, and dismissed the petition, with costs, from which order an appeal was taken to this court (Foxwell v. Foxwell, 118 Md. 471, 84 A. 552), and we decided that the averments in the appellant's petition were too general and indefinite to warrant the court in disturbing and vacating the enrollment of the decree, and the order of the court below was affirmed, without prejudice to the appellant, the appellee to pay the costs. In affirming the order of the lower court, we stated that the petitioner might be entitled to the relief prayed upon the institution of proper proceedings, and therefore held that she should not be precluded from presenting her case in a proper way, by filing an amended petition or original bill.
It was upon the return of the case to the court below that the petition of the plaintiff was filed and to which a demurrer was interposed and overruled, whereupon the defendant to the petition answered, admitting the fact of the former proceedings in the circuit court and the passage of the decree therein, as alleged in the petition, but denied that he or his solicitors fraudulently or corruptly contrived designed, or devised to defeat the operation of the first-mentioned decree, or to obstruct the administration of justice, and especially denied the alleged fraudulent suppression and concealment by himself and his solicitors of the former proceedings and...
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