Klein v. Klein

• Decision Date: 01 July 1924
• Docket Number: 26.
• Parties: KLEIN v. KLEIN.
• Court: Maryland Court of Appeals

125 A. 728

146 Md. 27

KLEIN v. KLEIN.

No. 26.

Court of Appeals of Maryland

July 1, 1924

Appeal from Circuit Court, Baltimore County; Walter W. Preston Judge.

"To be officially reported."

Bill by George P. Klein against Caroline Klein, who interposed a cross-bill. From a decree for complainant, and dismissing cross-bill, defendant appeals. Affirmed.

Argued before PATTISON, URNER, ADKINS, OFFUTT, and DIGGES, JJ.

Thos F. Cadwalader, of Baltimore, for appellant.

R. E Kanode and Louis J. Roth, both of Baltimore, for appellee. DIGGES, J.

This is an appeal from a decree of the circuit court for Baltimore county, dated July 13, 1923, by which the appellee, George P Klein, was granted a divorce a mensa et thoro from the appellant, his wife, Caroline Klein, and dismissing the cross-bill of the appellant. The bill of complaint was filed on January 16, 1923, and prays for a divorce a mensa et thoro, on the ground of abandonment and desertion.

The appellant filed her answer February 7, 1923, denying the material allegations of the bill of complaint against her, and on the same day filed her cross-bill, in which it is alleged that the appellee without just cause or reason abandoned and deserted her, and before and after said abandonment the appellee had treated her with gross cruelty, indifference, and disrespect. The prayer of the cross-bill is for permanent alimony, as well as alimony pendente lite and counsel fees.

The appellee filed his answer to the cross-bill, in which he denied the material facts therein alleged, and reiterated the matters set out in the original bill of complaint. The two cases were heard and considered together, and resulted in a decree as above stated.

The law in this case is simple and well settled by decisions of this court and elsewhere. Code of Public General Laws, art. 16, § 38, provides:

"Divorces a mensa et thoro may be decreed for the following causes, to wit: First, cruelty of treatment; secondly, excessively vicious conduct; thirdly, abandonment and desertion."

Abandonment or desertion, as a marital offense, consists in the voluntary separation of one of the married parties from the other, or the refusal to renew suspended cohabitation, without justification, either in the consent or the wrongful conduct of the other party. Bishop on Marriage, Divorce and Separation, vol. 1, §§ 1662, 1663; Gill v. Gill, 93 Md. 654, 49 A. 557; Taylor v. Taylor, 112 Md. 666, 77 A. 133; Buckner v. Buckner, 118 Md. 101, 84 A. 156, Ann. Cas. 1914B, 628. It must be the deliberate act of the party complained of, done with the intent that the marriage relation shall no longer exist. Young v. Young, 136 Md. 84, 110 A. 207; Fleegle v. Fleegle, 136 Md. 630, 110 A. 889; Ruckle v. Ruckle, 141 Md. 213, 118 A. 472.

Separation and intention to abandon must concur, and desertion does not exist without the presence of both. The two need not begin at the same time, but desertion begins whenever to either one the other is added. Taylor v. Taylor, supra; Muller v. Muller, 125 Md. 76, 93 A. 404; Meginniss v. Meginniss, 124 A. 393, No. 59, April term, 1923, of this court. A divorce for abandonment and desertion may be granted without regard to duration. Brown v. Brown, 2 Md. Ch. 317; Harding v. Harding, 22 Md. 337; Young v. Young, supra.

The law governing this case being thus established, it is only necessary to examine the evidence, to ascertain whether or not the facts upon which the decree must rest have been proven. The testimony covers more than 250 pages of the record, much of it is immaterial and irrelevant, and the language and acts of the parties towards each other, as testified to by them and other witnesses, is often profane, obscene, and vulgar. It would serve no useful purpose to recite herein this disgusting language and these revolting acts.

The parties are each about 56 years of age, and had been chums as young people, both at that time living in Baltimore city. The marriage took place in Philadelphia on November 22, 1921. Both had been previously married; the first wife of the appellee having died not a great while before the marriage in this case. He had, at the time of this marriage, a single daughter and a single son living with him at No. 4203 Connecticut avenue, Baltimore, and two other children, who were then married and not living with their father. He owned the Connecticut avenue property, which was a three-story apartment; his family occupying the lower or first apartment, and the other being rented to tenants.

The appellant's first husband was a Mr. Smith, with whom she lived for 28 years and until his death, and by whom she had a large family; there being six children, all grown, at the date of her marriage to the appellee. Among these children was a son, Martin Smith, a non compos mentis, and who was an inmate of a hospital in Philadelphia at the time of his mother's marriage to the appellee. About 5 years after the death of her first husband, the appellant married a Mr. Wood, of Philadelphia, in September, 1920, and from whom, in July, 1921, she obtained a divorce on the ground of adultery. Before her marriage to the appellee she was acquainted with members of his family, and knew the conditions surrounding the place that would be her future home, and that the single daughter and son would constitute members of the family who would occupy that home.

On the evening of the day of the marriage the appellee and appellant went directly from Philadelphia to Baltimore and took up their residence in the Connecticut avenue apartment. The appellant was welcomed by the children of the appellee, and apparently the married life of the parties was a happy and contented one, until the advent into the home of Martin Smith, the mentally afflicted son of the appellant. This was on December 26, 1921, and almost coincident with his coming certainly within a very short time thereafter, friction, disagreement, and discord between the husband and wife began; the husband frequently requesting the appellant to return her son to the hospital, and she apparently feeling that her son should be allowed to remain with her in the home of...