McClees v. McClees

• Decision Date: 13 January 1931
• Docket Number: 57-60.
• Citation: 152 A. 901,160 Md. 115
• Parties: MCCLEES v. MCCLEES (FOUR CASES).
• Court: Maryland Court of Appeals

152 A. 901

160 Md. 115

MCCLEES v. MCCLEES (FOUR CASES).

Nos. 57-60.

Court of Appeals of Maryland

January 13, 1931

Appeals from Circuit Court No. 2 of Baltimore City; George A. Solter Judge.

Suit by Beulah P. McClees against J. Sheridan McClees for divorce from bed and board. From the decree dismissing the bill plaintiff appeals, and, from that part of the decree allowing counsel fees, defendant appeals, and both parties appeal from an order directing the allowance of alimony pending appeal and of counsel fees in the Court of Appeals.

Decree and orders affirmed.

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

Isaac Lobe Straus and William Pinkney Whyte, Jr., both of Baltimore, for Beulah P. McClees.

Wm. H Lawrence and Frank Driscoll, both of Baltimore, for J. Sheridan McClees.

DIGGES J.

The bill in this case was filed by the wife, alleging cruelty and desertion on the part of her husband, the appellee, and praying for a divorce a mensa et thoro, alimony pendente lite and permanent, and counsel fees. Pending the litigation in the lower court, the chancellor made an allowance of alimony to the wife of $50 a week. The case was heard in open court, and resulted in a decree, dated June 18, 1930, wherein two things were ordered: First, the divorce was denied and the wife's bill dismissed; second, the husband was required to pay a fee of $1,500 to the wife's counsel for services in the lower court. There are four appeals in one record. The appeal in No. 57 is by the wife from that part of the decree dismissing her bill. The husband appealed from that part of the decree allowing the $1,500 counsel fee; that appeal is No. 59. On the same day that the decree was passed, on petition of the wife, the court ordered the payment of $25 per week as alimony pending the appeal, and a $500 fee to her counsel for services in this court. The wife appealed from this order, contending that the alimony and counsel fee were not sufficient in amount; and this is the subject of the appeal in No. 58. The husband also appealed from that order, contending that, the lower court having denied the divorce, there should be no allowance of alimony pending the appeal, nor allowance of counsel fee in this court. This is the subject of the appeal in No. 60. The wife will be referred to herein as the appellant, and the husband as the appellee.

The marriage of the parties took place in Baltimore on August 1, 1928. It was not the first matrimonial venture of either of the parties. The husband is 52 years of age; and his previous marriage resulted in his having three children, a daughter and two sons, who at the time of the trial were aged 18, 16, and 13 years respectively. Their mother and father were married January 26, 1910, and the mother died May 17, 1924. On May 21, 1924, Dr. McClees' father died, and his mother went to the appellee's home, 2929 North Charles street, taking charge of the home and the children. The appellant is 42 years of age, and had been married twice before her marriage to Dr. McClees. From each of her former husbands she obtained a divorce, and from her second husband a settlement in the way of alimony amounting to about $11,000. The parties had known each other since about 1901. About 18 months prior to the marriage, Dr. McClees began paying attention to the appellant, with the object of matrimony. During that period the appellant had met Dr. McClees' mother and children, who were living in his home; and she was fully aware of the fact that she was expected to occupy his home with them. Dr. McClees was the sole support of his mother, who was over 75 years of age. His profession is dentistry, his offices being away from his home, and he appears to have had a lucrative practice. The home on North Charles street is the property of the appellee, a large three-story house, with three rooms on the third floor. The home was nicely furnished, and the doctor employed several servants, cook, chambermaid, and man who attended to the furnace. At the office he had several assistants, including two young ladies as secretaries, and also two janitors. Before the wedding, the parties had agreed on some alterations, repairs, and improvements which were to be made in the home, especially in respect to the third floor, which entire floor was designed to be the apartment of the husband and wife, this selection being made by the appellant. They had also agreed upon the route of the trip to be taken after their marriage, including New York, from which point they were to go by ship, stopping at Havana, to Vera Cruz, and then on through Mexico. This trip was to last for approximately a month. The arrangements as to the trip were carried out. The wedding was attended by relatives and friends of both parties, although the children were not present, they being at that time with their maternal grandparents in Cambridge, Md. They returned from their wedding trip to Baltimore the last of August or the first of September, 1928, and took up their residence in the Charles street home. About two weeks after the wedding, Dr. McClees' mother and her daughter, Mrs. Bumgarner, left Baltimore for practically the same trip which the doctor and his wife had taken.

It will be seen that the arrangements, all of which were known to the appellee, should have been reasonably conducive to the contentment and happiness of the married couple. This did not prove to be true; for almost as soon as they returned to Baltimore, if, indeed, it did not begin during the wedding trip, disagreements, bickerings, arguments, and quarrels occurred between them. This situation continued, and gradually grew worse; and at times, according to the testimony, resulted in physical encounters between the husband and wife, culminating in the appellant leaving the Charles street home on August 23, 1929, and going to her sister's, where she has since remained. The cause of this condition, the wife contends, was the presence of the appellee's mother and children in the home; while the appellee contends that it was caused by the ungovernable temper and generally hostile attitude on the part of the wife, with the purpose of compelling him either to get rid of his mother and children, or provide a separate apartment outside of his home for his wife.

The testimony is exhaustive in support of the respective contentions, requiring eight days for its presentation, and making up a large record. A thorough study of the record convinces us of the painstaking patience exhibited by the chancellor, and the exactness with which he understood even the minutest details given in evidence. The record presents a case in which, as has been many times said by this court, the atmosphere of the trial is invaluable in reaching a correct and just conclusion. This atmosphere is reflected, to a degree, in the record; but the appearance and demeanor of the witnesses, and their manner of testifying, the chancellor had the benefit of, while it is denied to us. For this reason we are not at liberty to disturb the chancellor's findings of fact except in cases where they are clearly contrary to the weight of the evidence.

A considerable part of the appellant's brief is devoted to the argument that it is the duty of a husband to maintain a matrimonial domicile where the wife will be free, in the management of the home, from the interference of others. She relies largely upon the case of Hoffhines v. Hoffhines, 146 Md. 350, 126 A. 112, 38 A. L. R. 332. The rule there stated was applied to the peculiar circumstances of that case; and in each case such facts must be shown to exist as make the rule applicable. The facts now before us present a case more analogous to the case of Ewing v. Ewing, 154 Md. 89, 140 A. 37. In the Hoffhines Case, the effort was made by a husband, financially able to maintain a separate domicile for his young wife, to require her to live with his parents in a home controlled and dominated by them, while here the home is owned by the husband, is thoroughly comfortable, and even pretentious. The wife was given complete charge, with a corps of servants under her control and direction, ample funds for the conduct of the home being turned over weekly to the wife, to be expended as she might decide. In addition, it is shown that Dr. McClees' credit was of the best; and his wife was given unlimited authority to buy what she pleased at the stores in Baltimore City, and charge to her husband's account. Yet it is claimed on behalf of the wife that at least the mother of Dr. McClees, if not his children, should be compelled to leave the home. While it is true that a husband owes the duty to his wife of doing those things conducive to her happiness and comfort, yet this does not mean that he should disregard the duty of caring for and protecting others of his immediate family who are dependent upon him. Common sense does not suggest it, and the law does not require it. Parties to the marriage must realize that the relationship is seldom perfect, and that it is essential to the happiness and contentment of the parties, as well as for the benefit of society, that each tolerate inconveniences, annoyances, even hardships, and make sacrifices for the common welfare. It is for this reason that the law does not recognize trivialities, but requires that the causes for divorce be grave and weighty. Persons having natural or legal duties and obligations before marriage should not be required to entirely relinquish or disregard them upon assuming the marital status.

It would serve no useful purpose to set forth at any great length the testimony contained in this record. As stated, it discloses that the husband and wife lived together but little more than a year, during the whole of which time...