Oertel v. Oertel

• Decision Date: 13 February 1924
• Docket Number: 85.
• Citation: 125 A. 545,145 Md. 177
• Parties: OERTEL v. OERTEL.
• Court: Maryland Court of Appeals

125 A. 545

145 Md. 177

OERTEL v. OERTEL.

No. 85.

Court of Appeals of Maryland

February 13, 1924

Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge.

"To be officially reported."

Suit by Ethel F. Oertel against Carl H. W. Oertel. Decree for complainant, and defendant appeals. Reversed, and bill dismissed.

Argued before BOYD, C.J., and URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Horton S. Smith, of Baltimore, for appellant.

Philander B. Briscoe and Albert S. J. Owens, both of Baltimore (Briscoe, Jones & Martin, of Baltimore, on the brief), for appellee.

OFFUTT J.

Ethel F. Oertel on the 18th day of July, 1923, filed in the circuit court of Baltimore City a bill of complaint against Carl H W. Oertel, her husband, in which she asked that she be divorced a mensa et thoro from him; that she have the guardianship of their infant child; and that she be allowed permanent alimony as well as alimony pendente lite. This relief she asked on the ground that the defendant had treated her with such vicious cruelty, harshness, and brutality that she was afraid to live with him. The defendant answered the bill and denied all of the allegations contained in it which charged him with cruel, vicious, or improper conduct.

Testimony in connection with the issues thus tendered was taken in open court, and at its conclusion the court on June 5, 1923 signed a decree divorcing the complainant a mensa et thoro from the defendant, awarding her $7 per week alimony accounting from the 5th day of June, 1923, but awarding to the defendant the custody and guardianship of their infant child, subject to the right of the mother to have access to it from time to time, and from that decree this appeal was taken.

The only question which it presents for the consideration of this court is whether all the evidence in the case supporting the appellee's contention is sufficient to justify the act of the lower court in divorcing the complainant a mensa et thoro from the defendant. In dealing with that question we are affected by certain statutory mandates as well as by certain obvious legal presumptions. For instance, the statutory law of the state imposes upon the complainant the burden of corroborating her own testimony (article 35, § 4) while on the other hand the fact that the trial court had before it the witnesses who gave the testimony and was able to note the manner in which they testified, their appearance, their demeanor, their attitude, and the readiness or the hesitation with which they testified, gave him a better opportunity to accurately estimate the value of their testimony than can possibly be had by an appellate court which is confined to an examination of the cold, dry facts contained in the printed record, and for that reason the finding of the trial court should not be lightly disturbed.

The case records the effort of one party to an unhappy marriage to free herself from the bonds of matrimony which link together two people neither of whom appears to be wicked or vicious, but who are, according to their testimony temperamentally unsuited to live together. Temperamental incompatibility, however, is not a ground for divorce in this state, and no matter how desirable it may be as a moral abstraction that two people should be divorced who cannot live happily together and no matter how injurious it may be to them or to either of them to continue to live together subjected to bonds which have become galling, nevertheless a divorce cannot be granted to either of them unless for causes recognized by the state speaking through the Legislature as sufficient for that purpose, and under the laws of this state a divorce a mensa et thoro will be decreed only where the established facts of the case show cruelty of treatment, excessively vicious conduct, abandonment, or desertion.

After a diligent and very careful examination of the record before us in this case we have been unable to discover anything in it which could justify this court in holding that the appellee has met the burden she assumed of showing the existence of any one of those grounds.

The established facts of the case are these: On April 30, 1919, Ethel Fortenbaugh was married to Carl H. W. Oertel at St. Mark's English Lutheran Church in Baltimore. Oertel is a man of some education. He was born in Germany and educated there, and he received from some German institution a degree which he said was equivalent to a B. A. degree. At the time of his marriage he was employed in a shipbuilding company; later he worked at several drug stores and eventually established a drug store of his own which he still conducts. An apt description of his character is found in the appellee's brief in which he is thus described:

"Dr. Oertel is bright and makes a quite dependable witness, but it is easy to imagine that he is high strung and becomes nervous and wrought up at times, as he himself testified on more than one occasion. His self-interest and determination to win out in business is outstanding in the case, and anything that interferes with or blocks this ambition is, in his mind, greatly to be detested."

Mrs. Oertel is not mentally normal. She belongs to what one of the physicians who testified in the case described as the 60 per cent. class, that is to say, her mentality does not exceed the mental grade of 60 per cent. of the people. That rather indefinite expression is taken from the testimony of Dr. Irving J. Spear who, in defining a term used to indicate her mental state, said:

"It means this: That there is a certain average for every person as far as their station in life is concerned, and I judge 60 per cent. of people fall below that."

She appears to have been neurasthenic and had had prior to her marriage a nervous breakdown. While she was devoted to her child, it is rather clear from the evidence that in its early infancy she was unable to properly care for it and that her attentions to it were through her inexperience and want of skill rather detrimental to its health. It cannot however be doubted that she had a real love for children and especially for her own child, but, either because of her temperament, inexperience, or a lack of training, she could not properly care for it.

Mrs. Oertel inherited from her father an estate valued at approximately $20,000. When her husband was about to establish a drug store of his own he applied to her for a loan of $5,000 to finance his undertaking. He was unable to get that loan from her either because she was unwilling to lend the money or because the estate was not then in a condition to be settled, but whatever the cause may have been she said in her testimony that from that time on he began to lose interest in her.

In her bill of complaint she relies upon the defendant's cruelty to her as the basis for the relief prayed. Her own story of her relations with her husband, if we could accept it as sufficiently proved to comply with the requirements of the law, would undoubtedly establish that charge,. She testified that her husband repeatedly struck her, abused her, cursed her, referred to her in a manner that was calculated to humiliate and degrade her, called her "nutty" and "feebleminded," took her child away from her unnecessarily and subjected her to rules and restrictions upon her conduct which were unnecessarily irritating and annoying to her, by his conduct put her in such fear that she was always apprehensive of bodily injury, and that he continually neglected her and that even at the time of the birth of her child, when every principle of decency and humanity would have required him to show her unusual...