Jacobs v. Jacobs

• Decision Date: 19 May 1936
• Docket Number: 20.
• Citation: 185 A. 109,170 Md. 405
• Parties: JACOBS v. JACOBS.
• Court: Maryland Court of Appeals

185 A. 109

170 Md. 405

JACOBS v. JACOBS.

No. 20.

Court of Appeals of Maryland

May 19, 1936

Appeal from Circuit Court, Anne Arundel County; Linwood L. Clark Judge.

Suit by Joseph Hoffman Jacobs against Anna Weiner Jacobs. Decree for complainant, and defendant appeals.

Reversed and bill dismissed.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Eugene P. Childs, of Annapolis, and Harry J. Green, of Baltimore for appellant.

George B. Woelfel, of Annapolis, and Vernon Cook, of Baltimore, for appellee.

OFFUTT Judge.

This appeal is from a decree of the circuit court for Anne Arundel county divorcing the appellee a vinculo matrimonii from the appellant. In reaching the conclusion embodied in the decree, the court found that the appellant, Anna Weiner Jacobs, had abandoned the appellee, Joseph Hoffman Jacobs; that the abandonment had continued uninterruptedly for three years; that it was deliberate and final; and that the separation of the parties was beyond any reasonable expectation of reconciliation. Code, art. 16, § 38. The question presented is whether the evidence supports those findings.

The parties were married in Baltimore City on May 26, 1901. There are two children of the marriage, Benedict W., the elder aged thirty-three years, and Elmer H., the younger, aged thirty. The parties lived together with occasional interruptions until the autumn of 1930 when they separated, Mrs. Jacobs remaining in the home which they then occupied in Baltimore City, Jacobs removing to Creston Park, in Anne Arundel county, where he operates a chicken farm.

Jacobs filed the bill in this case on August 2, 1935, to secure a divorce a vinculo matrimonii from the defendant, alleging statutory abandonment as ground for that relief. He also alleged that the defendant and their two sons were about to take possession of his Anne Arundel county property, "besides creating a good deal of disturbance," and that on several occasions the two sons had severely beaten him.

Mrs. Jacobs in her answer categorically denied those allegations, and affirmatively alleged that she had made repeated attempts to effect a reconciliation, but that the plaintiff had not only refused to consider that, but had refused even to talk with her, and that she was without resources or means of support other than an allowance of $10 per week from the plaintiff.

Jacobs' contention is that prior to the separation the conduct of his wife and their two sons towards him was insulting and abusive; that at times they attacked him physically; that on the evening preceding his leaving the Baltimore City home, September 25, 1930, he and his wife quarreled over a request by him that she sign a paper guaranteeing his note for $75,000; that they nagged him until he left his bed and stated that he was going to Creston Park; that his wife and youngest son "jumped" on him; that in the struggle they "hurt him a plenty and sat on me and I struggled"; that the struggle lasted for probably two hours; that in the course of it the oldest boy came in and said, "* * * Let me fix him, I will fix him," but they motioned him away; that he then fell asleep and the next morning he left the home and went to Creston Park where he has since remained; that he invited his wife to join him at Creston Park on the condition that the sons should not live with them; that he had in good faith attempted a reconciliation which his wife had refused; and that while she had offered to resume their marital relations, the offers were not made in good faith.

Mrs. Jacobs' contention is that her husband is highly excitable, nervous, irritable, and emotional; that the incident did not occur as he described it; that what occurred was that she had already signed one paper guaranteeing the note and when he on October 25th, asked her to sign another, telling her that it was the same thing as the first paper she had signed, she asked him, why, if it was the same thing, it was necessary for her to sign another; that he then fell into a tantrum, became very angry, threw himself on the floor, beat his head with his fists, kicked his feet against the floor; that they placed him in his bed; that he then threatened to kill himself with a lamp cord; that she and Elmer sat beside him; that she said, "If you are going to go on about this I will sign the note"; that when he became calmer they left him; that the next morning when he came down she asked him if he would not have breakfast; that he answered, "No indeed," and walked out; that later he called up and said to her, "If those boys dare to come down the country I will have them arrested"; that after that she made repeated efforts to effect a reconciliation, but that he not only refused to consider that but declined even to see or talk to her.

The plaintiff in a suit instituted for the purpose of obtaining a divorce assumes the burden ordinarily borne by plaintiffs in other proceedings of proving facts necessary to justify the relief sought (Wigmore on Evidence, §§ 2483-2488; 19 C.J. 125 et seq.), and in this state that burden can never be met by the uncorroborated testimony of the plaintiff (Code art. 35, § 4; Tomkey v. Tomkey, 130 Md. 292, 100 A. 283). It was therefore incumbent upon Jacobs to prove by some evidence, in addition to his own testimony, the facts upon which he relied for relief to enable the court to weigh his testimony at all. Tomkey v. Tomkey, supra. Those facts were: (1) That the appellant had abandoned him; (2) that the abandonment had continued uninterruptedly for three years; (3) that it was deliberate and final; and (4) that the separation was beyond any reasonable hope of reconciliation. If he failed to furnish the kind and quantity of proof which the law requires of those facts, he failed to prove his case and the trial court was bound to dismiss his bill whether his own testimony was believed or not. In other words, his own testimony, unless corroborated, proved nothing. The corroboration required varies with the circumstances of particular cases, and as the danger of collusion, which is the evil at which the statute is directed, increases or diminishes, in the same ratio the rule prescribed by the statute is applied with greater or less strictness ( Appel v. Appel, 162 Md. 5, 158 A. 65), but under no circumstances may it be dispensed with altogether (Tomkey v. Tomkey, supra; Twigg v. Twigg, 107 Md. 676, 69 A. 517; 19 C.J. 133; Garrett v. Garrett, 86 N.J.Eq. 293, 98 A. 848; 9 R. C.L. 435). While the corroboration must extend to every element necessary to justify the relief sought (Garrett v. Garrett, supra; 9 R.C.L. 436), it need not in itself be sufficient to warrant that relief (9 R.C. L. 435), nor need it go to every particular statement found in the plaintiff's testimony, but it is sufficient if it lends substantial support to his testimony as to material and controlling facts (19 C.J. 134).

The evidence relating to abandonment may be considered under two heads, one whether Jacobs' action in leaving his home in Baltimore City in September or October, 1930, was justified by the conduct of his wife and sons, the other whether after that separation its continuation was due to his fault or the fault of his wife.

Dealing with those two questions in their order, there is literally no evidence of any kind to support Jacobs' version of the circumstances under which he left his home in the fall of 1930. Moreover, apart from the lack of corroboration, Jacobs' description of the happenings of the night preceding the separation tends to support his wife's statement of what took place. He testified: "That your wife and son threw you on the floor? A. No they threw me down on the bed and sat on me. Did you not get down on the floor that night yourself and rap your head and kick your feet? A. No I was not on the floor at any time. * * * You finally went to sleep while they were holding you? A. I don't think I can tell you the exact scene that happened I know I fell asleep and they let up on me. I want to know whether you fell asleep while they were holding you or whether you were free when you went to sleep? A. I have heard the story of the man with a beard going to sleep but whether he slept with the beard under the cover or over the cover I don't think it makes any difference I don't remember. It occurs to me that you testified that your wife was quite bulky and heavy and possibly that would have a tendency to keep you awake? A. No doubt it would. Can you say whether your wife was sitting on you when you went to sleep or not? A. I know she sat on me while I was in bed and while I dozed off she got off me that twlight." The testimony of Mrs. Jacobs and their two sons that Jacobs was nervous, excited, that he threatened suicide, and that they tried to calm him is inherently more credible than that he went to sleep while his wife was sitting on him.

Turning to the second question, it may be said that it is consistent with both common sense and law that if Jacobs' two adult sons treated him as he stated in his testimony, and that his wife insisted nevertheless that they remain in the household his abandonment of it was justified. The husband, who supports and maintains the home, is regarded as the head of the family, and may within reasonable limits determine who shall reside in, or even visit it (30 C.J. 510; Crouch v. Crouch, 150 Md. 608, 133 A. 725, 47 A.L.R. 681), and even if it be assumed that the conduct of the sons towards him was all that it should have been, nevertheless he had the right to insist that they live apart from him and his wife. On the other hand, his wife had no right to demand that they be permitted to continue to live with her in her husband's home as a condition to her continuing to...