McCaddin v. McCaddin

• Decision Date: 22 November 1911
• Citation: 82 A. 554,116 Md. 567
• Parties: McCADDIN v. McCADDIN.
• Court: Maryland Court of Appeals

82 A. 554

116 Md. 567

McCADDIN v. McCADDIN.

Court of Appeals of Maryland

November 22, 1911

Appeal from Circuit Court No. 2 of Baltimore City; Henry Stockbridge, Judge.

Suit by Louisa H. McCaddin against James McCaddin. From a decree for plaintiff, defendant appeals. Affirmed.

Argued before BOYD, C.J., and PEARCE, BURKE, THOMAS, PATTISON, and URNER, JJ.

Warren A. Stewart, for appellant.

Burdette B. Webster, for appellee.

BOYD C.J.

This is an appeal from a decree allowing the appellee $7.50 per week as permanent alimony and also counsel fees.

The bill does not pray for a divorce, but only for temporary alimony pendente lite, permanent alimony, and counsel fees. There is no question in this state about the power of a court of chancery to entertain an application by a wife against her husband for alimony, although she does not ask for a decree of divorce. As recently as Taylor v. Taylor, 108 Md 129, 69 A. 632, such a suit was entertained, and there are a number of other decisions by us and our predecessors including the late one of Stewart v. Stewart, 105 Md. 297, 66 A. 16, in which the right is fully recognized.

We do not deem it necessary to quote at much length the testimony in the case; but, in our judgment, it sustains the appellee's contention that the appellant had abandoned her and failed to support her. It is a peculiarly sad case as the parties have been married over 40 years, and the appellant has met with financial reverses which undoubtedly lessened his income very materially. The wife was evidently an economical woman, as her savings out of money earned by the husband and turned over to her in their early married life furnished the means by which he established what was for some years a very prosperous business. At one time, his habits were such as would necessarily make the home an unhappy one; but he seems to have corrected them. We refer to them in connection with the fact brought out in the testimony that some years ago the appellee left the bedroom occupied by her and her husband, and slept in one in the third story. It was explained by the wife that when she first occupied that room her husband would sometimes be away for weeks and frequently all night, or until very late at night, and as her daughter slept in that story she moved up there for protection and company. Although the evidence of the husband is in many particulars in conflict with the material parts of the wife's testimony, she is sustained by that of her daughter. It must be admitted that the appellant's treatment of his wife on many occasions was, to speak mildly, not to be commended, and possibly the appellee was not always entirely free from blame, as a more considerate course might at times have avoided unhappy differences.

The appellant contends that he was ready and willing to support the appellee, and still is, if she will live with him on a farm in Baltimore county which he speaks of as his, but which, according to the evidence, belongs to Mr. Furst, who is willing to let the appellant have it on payment of what is due by him. But, while he alleges that he offered to take his wife to the farm, her testimony and that of their daughter is to the contrary, He wrote at the bottom of a notice of expiration of an insurance policy on the furniture, "I ain't going to have this renewed because I am going to move and I expect to move this week." The daughter was asked, "Do you remember the circumstances under which your father left home?" and answered: "He always would threaten. Every little disturbance he would threaten he was going to get another home, and finally he went to the farm, and we did not know he was going until the wagon drove up and he moved some things to the farm; but he left a little note." The above is the note referred to. She also testified: "Mamma said, 'What am I going to do?' He said, 'You can go to your sister's, or work like I am doing.' My mother's sister lives a few doors below. She is a widow." The appellee testified to the same effect; and she also said, on cross-examination, in answer to the question, "When he left you to go to the farm, did Mr. McCaddin ask you to come with him, and say that he would provide a house for you there?" "No, sir; he never asked me to go at all. He just made arrangements to go himself, and he has not been out on it himself hardly all the time. We would not have had a home out there if we wanted." So the preponderance of the testimony shows that he did not offer to take his wife with him, but left her to take care of herself. According to the evidence offered in his behalf, it is perfectly evident that he knows but little about farming, and the farm is run down for want of proper attention to it, although there is a tenant on it; and it is doubtful whether he could support himself and wife on it, even if Mr. Furst continued to indulge him as he has done.

But it is contended that, as he expressed his readiness and willingness to support her, and as she testified she was willing to go to the farm and make that her home, or if he opened a store on Gay street, as he spoke of doing, that she was willing to live over the store, alimony should have been refused. It would be an easy way of avoiding the obligation to support his wife which rests on a husband, if, when a bill for alimony is filed, the mere assertion that he is ready and willing to support her, if she will live with him, is to satisfy the requirements of the law. There is not a particle of evidence in the case tending to show that he had made any effort, after he left, to have her move to the farm, or that he had, after that time, offered to provide her a home there or elsewhere; and his evidence that he had so offered before he left is overcome by that of his wife and daughter. If, however, both are now willing to live together, and they do so, the alimony can cease, as will be seen later.

It is true that a court should be careful not to unnecessarily widen a breach between husband and wife by its orders and decrees; but it is equally true that the law demands of a husband that he support his wife, if he has the ability to do so, and that if they are separated by his, and not by her, fault he must make reasonable provision for her. Being satisfied by the evidence that the appellant has within the meaning of the law, abandoned the appellee, the next question is whether the...