Lemmert v. Lemmert

• Decision Date: 13 February 1906
• Citation: 63 A. 380,103 Md. 57
• Parties: LEMMERT v. LEMMERT.
• Court: Maryland Court of Appeals

63 A. 380

103 Md. 57

LEMMERT v. LEMMERT.

Court of Appeals of Maryland

February 13, 1906

Appeal from Circuit Court No. 2 of Baltimore City; J. Upshur Dennis Judge.

Action by August Lemmert against Barbara M. Lemmert. From a decree dismissing the bill, plaintiff appeals. Reversed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE JONES, SCHMUCKER, and BURKE, JJ.

George Forbes, for appellant.

BOYD J.

The appellant filed a bill for divorce a vinculo matrimonii against the appellee on the ground of abandonment. The defendant answered, denying that she had abandoned and deserted him without cause, and alleged that on April 13 1900, "after cursing, abusing, and beating her, he ordered her to leave the house and finally drove her out." Testimony was taken orally before the court, and an order was passed dismissing "the original bill of complaint and cross-bill of complaint," from which the appellant took this appeal. We do not find the cross-bill in the record, but, in the answer the defendant set up the defenses above stated, as well as others, to the plaintiff's bill. A paper was produced in evidence called a "Contract and Deed," and it was stated by plaintiff's solicitor that the bill was dismissed on the ground that that paper was an agreement of separation and as such barred this suit. There was no appearance in this court for the appellee, and the case was disposed of below at the conclusion of the plaintiff's evidence. The testimony shows that the differences between the appellant and the appellee were the result of the latter being "a follower of Dowie." Both were members of the Lutheran Church, were teachers in the Sunday School, and seemed to have lived happily until Mrs. Lemmert became what is called in the record a "Dowieite." On April 12, 1900, a Dowie preacher came to their house, and according to plaintiff's testimony told his wife that she need not obey her husband, who was objecting to her going to the Dowie meetings. He called a policeman to put the preacher out of the house, and the appellant and his wife then had a quarrel. He admits cursing her, told her it was a wonder he "did not knock her d___d head off," but denied striking her then or upon any other occasion. One witness testified that she said in his presence that he had thrown her against a sewing machine, and that he did not deny it. The next day she left the house, in his absence, and went to her brother's. The appellant went to see her and asked her to come home; but she refused, and said her brother had offered her a home and she was going to stay there. She sent for some things she had at her husband's house, and subsequently went to Philadelphia. In the spring of 1901 she returned to Baltimore, and on May 21st instituted a suit for a divorce a mensa et thoro. He went to see her the next day; said he put his arm around her, kissed her, and asked her to return home, but she refused; that in answer to his inquiry as to what she wanted she demanded $100, and he gave her $200, and the paper above spoken of was executed. He paid the cost of the suit against him, which was then dismissed.

This brings us to the consideration of that paper, which is dated May 24, 1901. It does not in terms agree that the parties should live apart, although it does undoubtedly imply that they expected to so live. After reciting their marriage and that they had lived together until the 13th of April, 1900, it proceeds: "Whereas, owing to certain disagreements, it is impossible for the said parties hereto to live together in peace and happiness; and whereas, the said August Lemmert, considering the condition in life and the health of the said Barbara M. Lemmert, and of ability to support herself, has agreed to pay her the sum of two hundred dollars in full payment, release, and satisfaction of all claims and demands of all kind and nature which she has against him or may have for support and maintenance, or against his property, real, personal, and mixed, which he now owns or may hereafter acquire," etc. She then, in consideration of that sum of money paid her, the receipt of which she acknowledged, released him and his property from all such claims, and as signed and conveyed, and agreed at any future time to make other assignments and conveyances to John R. Lemmert, trustee, of all her right, title, interest, and claim of all kind and nature which she had against August Lemmert, by virtue of said marriage, or against his property. The contract cannot be read without reaching the conclusion that they did contemplate living apart, for they would not have considered "her ability to support herself," or provided for a release of all the wife's claims upon her husband and his property, which he then owned or thereafter acquired, if they expected to live together. Such expressions, taken in connection with that quoted above, in which they said it was impossible to live together in peace and happiness, do not seem to admit of any other conclusion. But it does not follow from the language used in the contract, when considered in connection with the surrounding circumstances, that the separation was by mutual consent. The proof is that the wife had left the husband more than a year before, and she had filed a bill for a divorce a mensa et thoro and asking for alimony just three days before the contract was signed. When he went to see her on May 22, 1901, the day after the divorce proceedings were begun, he treated her affectionately and tried to persuade her to return to his home, but she declined. It may be that she was wise in doing so, for she was apparently infatuated with the Dowie religion, and he was violently opposed to it at that time, and she may therefore have thought they never could live happily together. But, however that may be, the appellant was confronted with the choice of having the litigation go on and paying such alimony and costs as the court required of him, or making a settlement with his wife. She was willing to accept $100, but he said he wanted to do what was right, and gave her one-half of what he was worth, and paid all expenses of the suit, including her attorney's fee. Even after they had signed the papers, as they walked along the street together, "he said to his wife, 'Come home to me, and give all this up, and live with me,' and she said she could not do it, and she went to where she was boarding, and I went home." He was corroborated by several witnesses as to his asking his wife to return, although one of them said his wife told her that he used a very harsh expression towards her at the time, and she did not think he was in earnest. He certainly made great efforts to avoid trouble with his wife on account of her infatuation for the Dowie religion, if his testimony is true. When she was in Philadelphia he went there, studied the subject for a month, and said he agreed to some things, but others he could not agree to. Some of the mutual friends of his wife and himself studied the subject with them. He concluded his reference to that by saying: "When they said, if a man had his finger cut off, that these men praying for them he would get a new finger, I could not go those kind of things. That is when the trouble began." He was even baptized, by immersion, in order to conform as far as he could to the requirements of that religion, and, although differences in religious views ought not to separate husband and wife, if it be true that the teachings of the Dowie elders and followers were such as the appellant testified to, it is at least not a cause for censure if he was unable or refused to accept them. The facts to which we have referred, as well as others in the record, certainly tend to show that the appellant's wife did not leave him with his consent, and that he did not drive her out of the house, as alleged in the answer, and under the circumstances it would not be just to infer that the separation, which we have said was apparently contemplated by the terms of this contract, was by their mutual consent, or to hold that it of itself precludes him from suing for a divorce for abandonment.

In Barclay v. Barclay, 98 Md. 366, 56 A. 804, we held that the deed of separation, followed by the living apart by mutual consent, together with the lapse of time, was a bar to that suit for a divorce a mensa et thoro. But there the husband abandoned his wife in January, 1895, and on March 7th of that year they executed the deed of separation, in which they...