Kirkwood v. Kirkwood

• Decision Date: 16 January 1934
• Docket Number: 80.
• Citation: 170 A. 180,165 Md. 547
• Parties: KIRKWOOD v. KIRKWOOD.
• Court: Maryland Court of Appeals

170 A. 180

165 Md. 547

KIRKWOOD v. KIRKWOOD.

No. 80.

Court of Appeals of Maryland

January 16, 1934

Appeal from the Circuit Court No. 2 of Baltimore City; Eugene O'Dunne, Judge.

Bill for alimony by Ethel M. Kirkwood against Philip Milton Kirkwood. From a decree for plaintiff, defendant appeals.

Decree reversed and bill dismissed.

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

William W. Powell, of Baltimore, for appellant.

Jacob Blum, of Baltimore (Eli Baer and Louis Peregoff, both of Baltimore, on the brief), for appellee.

PARKE Judge.

The plaintiff, Ethel M. Kirkwood, began on February 27, 1933, a suit against her husband, Philip Milton Kirkwood, for permanent alimony, and an allowance of temporary alimony pendente lite and counsel fees. The ground alleged for relief was a constructive abandonment of the wife by the husband. The specific charge was that the defendant had failed to support the plaintiff since December 28, 1932, and had by his acts and conduct forced her to leave the marital domicile on January 4, 1933. The answer of the defendant was an emphatic denial of the accusations made by the bill, and an extended presentation of his defense. The parties took their testimony in open court, and the chancellor passed a decree awarding the plaintiff permanent alimony, counsel fee, and costs. An appeal was then entered.

The marriage of the parties was on October 6, 1920, and the wife left her husband on January 4, 1933, and did not return. Upon their marriage the couple went to the home of the father of the groom to live. After the death of the father in 1923 they continued to live with his widow until their final separation, when the three were the only occupants of the house.

The wife left the home in the husband's absence while engaged in the service of his employer. She attempted to justify her departure by charging that her mother-in-law was disagreeable, that their household and domestic customs were not to her taste, but that the husband had declined to provide her with another home, and had refused her sexual intercourse for a period of eight months before she left, and that he was uncivil, reticent, and unsociable, and came home drunk once a week and that he and his mother had frequently told her to leave. The husband denied the wife's testimony, which was not consistent, that he had refused his wife's embraces, and stated that there had been no interruption in their sexual intercourse until she left. There was no testimony supporting the wife's charge in this respect, and the accusation is not proved. Owings v Owings, 148 Md. 124-127, 128 A. 748. The other charges are either unsubstantiated by the testimony or insufficient as a basis for divorce, and, being unwarranted, were vexatious in their nature. The mother is seventy-five years old and owned the property where they lived. The husband is her only child. It was by the united effort of the three that the home was maintained. The husband earned a small weekly wage, and could not have provided his wife with a different home, if the circumstances had indicated such a necessity. The household had been the same for twelve years before the wife left, but in the fall of 1931 she began to display a dissatisfaction with her married life. On January 5, 1932 she went away while her husband was at work and in a note she left enjoined her husband not to look for her and added that she had gone for good. The husband did not know where she was and on January 29th had it announced by radio that she was missing, and he received a letter written on that night from her informing him that she had heard the radio message and that he knew she had left him and would not be back. She returned, and left on March 6, 1932; came back the next day and went away on March 11th. Her husband did not see her again until May 4th when she casually met him and asked for money which he declined to give, but said that she should come back, and this she did on May 7th. After this resumption of the marital state, the testimony is that the wife was absent quite often after August on brief visits until she left him a second time, as she phrased it, "for good," on January 4th. Her testimony is that on January 5th, again on the 7th, she called her husband on the telephone. Her husband admits the two calls by telephone and declares there was a third. The wife states that she called him to the telephone in an effort to effect a reconciliation and that the husband refused, but his statement is that he declined to discuss the matter over the telephone, but informed her that he would do so at any place she might designate and that she would not agree. The wife corroborates her husband that he refused to talk with her on the telephone, but denies he promised to meet her according to her choice. Without the two meeting for discussion of their situation, the bill was filed at the end of the next month.

When the plaintiff first testified, the chancellor inquired of her if she would be willing to return, and her reply was that she would, if her husband would provide another home for her away from his mother. To a similar inquiry, the husband said that he did not want to take her back, and he further testified that she had left him so often he had lost all confidence in her. At the closing by both sides of their final testimony, which had been given after an interval of nearly two weeks because the chancellor had adjourned the hearing to afford the parties an opportunity for reconciliation, the chancellor first called the wife to the stand, and, among other questions, asked her what her attitude was with reference to returning. At first, her answer was she was willing to go back, if he provided another home, as she did not want to return to his mother's home; but, finally, after having had pointed out to her by the chancellor that she had lived there under similar conditions for twelve or thirteen years, she, with evident reluctance, said she thought she would be willing to make another trial in the mother's home. The husband then was recalled and had propounded to him the same interrogatory, and his reply was that he did not want her back, because of his loss of confidence on account of her having left him so often. It will be observed that neither the wife nor the husband definitely agreed or declined to resume their marital relations, although the chancellor had given them an interval of two weeks in which to become reconciled or to reach a definite conclusion.

The record does not disclose any sufficient reason for the wife to leave her husband's home, which was, through the co-operation of the husband's mother, assured comfortable, adequate, and suitable, comported with their station in life, and afforded them every opportunity for privacy and entertainment. The evidence does not establish that the mother-in-law's conduct or presence militated in any appreciable degree against the happiness and tranquility of their domestic life. McClees v. McClees, 160 Md. 120, 152 A. 901. The husband had given to his wife every week for the table and clothes for both 75 per centum of his small weekly wage, and his mother's contribution was the...