Harding v. Harding

• Decision Date: 25 November 1864
• Citation: 22 Md. 337
• Parties: ELIZABETH A. HARDING v. JOSEPH HARDING.
• Court: Maryland Court of Appeals

22 Md. 337

ELIZABETH A. HARDING v. JOSEPH HARDING.

Court of Appeals of Maryland.

November 25, 1864

APPEAL from the Equity side of the Circuit Court for Montgomery County:

The bill in this case was filed on the 22d of May 1857, by the appellant against the appellee, for a divorce a mensa et thoro, and for alimony. The allegations of the bill and facts of the case, are fully stated in the opinion of this Court.

The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH, and COCHRAN, J A. Randall and A. B. Hagner, for the appellant.

1st. Do the facts authorize the Court to decree a divorce a " mensa et thoro? "

We say they do, showing: " first, cruelty of treatment; and secondly, excessively vicious conduct, abandonment and desertion," (the causes stated in the Act of 1841, ch 262, sec. 3.)

As to the cruelty of treatment. This cruelty may be without personal violence; --it may be a reasonable apprehension of bodily hurt,--something that renders cohabitation unsafe and likely to be attended with injury. Huhme vs. Huhme, 2 Eng. Ecc. Rep., 208. Shelford on Divorce and Marriage, 33 Law Lib., 235. The law does not require many acts,--one act is sufficient. Nor is it necessary that the conduct of the wife should be blameless. Same, 238, 244. Groundless and malicious charges against the wife's chastity, followed by turning her out of doors, with other acts of cruelty, are a ground of separation. Same, 239. Abandonment or desertion for any length of time by the husband of the wife, is sufficient for a divorce, " a mensa et thoro. " Brown vs. Brown, 5 Gill, 355. If a man fails to supply his wife with necessaries and comforts of life within his reach, and by cruelty compels her to quit him and seek shelter and protection elsewhere, we should have no hesitation in saying it would be an abandonment of her by him, as if he had deserted her and gone away. Levering vs. Levering, 16 Md. Rep., 219.

2nd. As to alimony. This point does not seem to have been considered by the Court in any other light than as an incident to the granting of the divorce, and refusing to grant that, nothing is said of alimony. This view does not accord with the history of the jurisdiction of our Courts of Equity in cases of alimony, which they entertained before there was any jurisdiction conferred in cases of divorce. Wallingford vs. Wallingford, 6 H. & J., 488. Crane vs. Meginnis, 1 G. & J., 463. Alimony, says Judge MARTIN, is a maintenance afforded to the wife where the husband refuses to give it, or where from his improper conduct compels her to separate from him, page 488 of 6 H. & J. See also Jamison vs. Jamison, 4 Md. Ch. Dec., 289. Thus we respectfully submit that the right to a decree for alimony to the complainant, is supported by the facts and law of the case, whether a divorce be granted or not.

The third prayer is for the guardianship of the child. This certainly is a matter of equity jurisdiction; the child was of such tender age as required a mother's care. His allowing it to remain with her did not deprive him of the right to take it any time he chose to do so--and therefore the decree was required. This point was decided in Levering vs. Levering, 16 Md. Rep., 219.

We do therefore respectfully submit, that the complainant was entitled to all the three remedies she asked of the Court, and that this Court will so adjudge.

O. Miller and N. Brewer, for the appellee argued:

1. That there is no such cruelty of treatment proved in the case as to entitle the appellant to a divorce a mensa et thoro. The terms " cruelty of treatment," as used in the Act of 1841, ch. 262, are well defined, and have been repeatedly adjudicated upon by the Equity Courts of this State, and the proof in this record is totally inadequate to bring the appellant's case within the well known meaning of those terms. Daiger vs. Daiger, 2 Md. Ch. Dec., 335. Coles vs. Coles, Id., 341. Tayman vs. Tayman, Id., 393. Bouic vs. Bouic, 3 Md. Ch. Dec., 51. Ricketts vs. Ricketts, 4 Gill, 105. Helms vs. Franciscus, 2 Bland, 544. Levering vs. Levering, 16 Md. Rep., 213.

2. Nor is there any such proof of " abandonment" or " desertion," as to entitle the complainant to a divorce under the 3rd section of the Act of 1841, ch. 262. The abandonment there spoken of must be an abandonment of the party complaining by the party complained against, or caused by his cruelty of treatment. A wife cannot, when in default herself, by her own voluntary act leave her husband, and never offer to return to his house and home, and then say she has been abandoned by him, and call this an abandonment, or desertion, within the meaning of the Act, and thereupon ask for a divorce a mensa et thoro. Brown vs. Brown, 2 Md. Ch. Dec., 316, affirmed in 5 Gill, 249. Levering vs. Levering 16 Md. Rep., 213.

3. Nor is the decree erroneous because it does not sustain the bill for alimony, nor make any provision in reference thereto, and upon this point it will be insisted:

1st. That since the passage of the Act of 1841, ch. 262, Courts of Equity in this State have no jurisdiction to grant permanent alimony, except in cases where a divorce has been granted, or as a consequence of granting the divorce.

2nd. That if this Act of 1841 should not be regarded as repealing the Act of 1777, ch. 12, sec. 14, and it should be held that this latter Act is still in force, and that alimony may be decreed in a case where no divorce has been granted, it is then insisted, that by the terms of this Act of 1777, which declares that the Court of Chancery " shall and may hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there," --to sustain a bill for alimony, such a case must be made out and proved, as would authorize the English ecclesiastical courts to award alimony therein; that is, a case of adultery or cruelty of treatment must be alleged and proved. Mere separation, or abandonment or desertion, is not sufficient.

3rd. But, at all events, to entitle a wife to alimony, it is not sufficient to prove a voluntary leaving of his house and home by her, or a mere voluntary separation by her from him, and refusal or neglect on his part to support and maintain her. The husband must force the wife to leave him. The separation must arise from his misconduct or cruel treatment.

In support of these positions reference will be made to Galwith vs. Galwith, 4 H. & McH., 477. Wallingford vs. Wallingford, 6 H. & J., 485. Crane vs. Meginnis, 1 G. & J., 463. Hewitt vs. Hewitt, 1 Bland, 101. Helms vs. Franciscus, 2 Bland, 544. Fornshill vs. Murray, 1 Bland, 479. Wright vs. Wright, 2 Md. Rep., 429. Dunnock vs. Dunnock, 3 Md. Ch. Dec., 140. Jamison vs. Jamison, 4 Md. Ch. Dec., 289.

OPINION

BARTOL J.

This was a bill filed on the 22nd of May 1857, by the appellant against the appellee, for a divorce a mensa et thoro and for alimony. The bill avers, that the marriage took place on the 31st of January 1856, and that on the 20th of August in the same year, the complainant gave birth to a male child, which has been named Joseph Harding; that after this premature birth, and during the period of her confinement, the husband actuated by jealousy and his own evil disposition, charged her with adultery, and threatened to cowhide her to coerce her to acknowledge some other person than himself to be the father of the child, and so violent was his conduct and cruel his treatment, that she was compelled from fear of personal injury to leave his house and fly to her father's house for refuge, on or about the 11th of September 1856, before her entire recovery from her confinement, and greatly to the danger of her health; she avers, that she has in all things conducted herself chastely, faithfully and affectionately towards him, and earnestly desired to be and remain his true and faithful wife, but disregarding his duty to her, he has aspersed and blackened her fair name, and by his cruelty driven her and his child from his bosom and home, and has wholly abandoned and deserted them, which conduct on his part is the more inexcusable, because he was at the time of his marriage, a widower, and the complainant had not before been married, and was a virgin prior to her intercourse with him; and she charges that her husband has refused to receive her and his child again into his house, and has refused and still refuses to acknowledge her as his wife, and the child as his, and to make any provision or allowance whatever for their support. The bill further charges, that her husband is seized and possessed of large real and personal estate, but that she is entirely without means of support except from her own labor and the charity of her friends. The prayers of the bill are for an answer, a divorce a mensa et thoro, alimony, the custody and guardianship of the child, and for general relief.

The answer of the appellee, admits that he became the dupe of the complainant, then Elizabeth A. Thompson, and was married to her on the 31st of January 1856, and that she gave birth to a male child on the 20th of August 1856, not prematurely and before its time, as alleged in...