Polley v. Polley
| Decision Date | 29 February 1916 |
| Docket Number | 104. |
| Citation | 97 A. 526,128 Md. 60 |
| Parties | POLLEY v. POLLEY. |
| Court | Maryland Court of Appeals |
Rehearing Denied May 5, 1916.
Appeal from Circuit Court of Baltimore City; John J. Dobler, Judge.
"To be of officially reported."
Bill by Margaret E. Polley against Louis G. Polley for permanent alimony, alimony pendente lite, and counsel fees. Decree for plaintiff, and defendant appeals. Reversed, and bill dismissed, without prejudice to the ascertainment and allowance upon notice and hearing of such additional compensation, if any, to the solicitor of the appellee for his services in the circuit court and in the Court of Appeals as to the circuit court may seem proper.
Isaac Lobe Straus, of Baltimore, for appellant. C. Arthur Eby and John F. Frazer, both of Baltimore, for appellee.
The bill in this case was filed by the wife against the husband on the 22d day of January, 1915, in the circuit court of Baltimore City, for a divorce a mensa et thoro, alimony, and counsel fees, upon the ground of abandonment and desertion. The defendant answered the bill on the 16th of February 1915, denying its allegations, and avers that he has not abandoned and deserted his wife in the legal sense, but that her conduct has been such as to make it impossible for him to live with her as her husband, and that he is under no legal obligation any longer to support her. The case was heard in open court, upon bill, answer, and proof, but after the hearing, and before final decree, it is stated by the appellee, in her brief:
"That the plaintiff, not desiring a divorce of any kind from her husband, in fact, being opposed to the same upon principle, and having been informed that she might obtain alimony without divorce from her husband, filed a petition to amend her bill by striking out the prayer for partial divorce, and this was authorized by order of court on June 30, 1915."
The prayer of this petition was for leave to amend the bill, by striking out the prayer therein contained for divorce a mensa et thoro, so that the bill may remain a bill for permanent alimony, alimony pendente lite, and counsel fees to be allowed the plaintiff as against the defendant. Upon this petition the court below on the 30th day of June, 1915 granted the leave "to amend the bill as prayed," and on the 21st of September, 1915, passed the decree, set out in the record, from which this appeal has been taken.
By the decree the defendant was directed, first, to pay unto the plaintiff, by way of alimony, a weekly allowance of $5, during the lifetime of the plaintiff; second, that the plaintiff was entitled to receive one-half of the net proceeds from the income or sale of certain property held by them as tenants by the entireties; third, that the defendant deliver up to the plaintiff such of the personal property which he has belonging to her; and, fourth, that he pay a certain named counsel fee to the attorney of the plaintiff and the costs of the suit.
One of the causes for which a divorce a mensa et thoro will be decreed, as set out in section 38 of article 16 of the Code, is abandonment and desertion, and this is the ground relied upon by the wife for the award of alimony, the principal relief sought by the amended bill. It is well settled, by numerous decisions of this court, that where the allegations of a bill of complaint are sufficient to support a decree for a divorce, they would be sufficient upon proof also to support a bill for alimony alone, but that alimony alone can only be granted upon grounds sufficient to justify a divorce a vinculo or a mensa. Helms v. Franciscus, 2 Bland. 544, 20 Am. Dec. 402; Wallingsford v. Wallingsford, 6 Har. & J. 485; Dunnock v. Dunnock, 3 Md. Ch. 141; Outlaw v. Outlaw, 118 Md. 498, 84 A. 383; Walker v. Walker, 125 Md. 649, 94 A. 346; Outlaw v. Outlaw, 122 Md. 695, 91 A. 1067. In the case at bar it seems to have been conceded, upon the hearing, that the proof would not support a decree for a divorce a mensa, and the bill was dismissed in this respect.
It is stated in the appellant's brief that at the conclusion of the argument the judge presiding stated from the bench that he could not grant the divorce prayed for upon the proof, but would hold under consideration the question whether she was entitled to alimony under the amended bill. No further proof was taken, but the case was submitted on the amended bill and the proof taken on the original proceedings. In Wallingsford v. Wallingsford, 6 Har. & J. 485, it is said that alimony is a maintenance afforded to the wife where the husband refuses to give it, or where from his improper conduct he compels her to separate from him. It is a provision for her, to continue their joint lives, or so long as they live separate. Upon the death of either, or upon their mutual consent to live together, it ceases. McCaddin v. McCaddin, 116 Md. 572, 82 A. 554; Emerson v. Emerson, 120 Md. 590, 87 A. 1033; Outlaw v. Outlaw, 118 Md. 498, 84 A. 383; and Id., 122 Md. 695, 91 A. 1067.
By section 14 of article 16 of the Code it is provided the courts of equity of this state shall and may hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there. In Helms v. Franciscus, 2 Bland, 544, 20 Am. Dec. 402, Chancellor Bland, in referring to this act (chapter 12, § 14, Acts of 1777), said:
"Yet according to the provisions of this act it [the court] cannot allow itself to receive any matter, as a sufficient ground for granting alimony alone, which would not be a sufficient foundation in England for granting a divorce a mensa et thoro, together with its incident alimony."
This rule, it will be seen, has been approved and followed in numerous cases in this court, some of which will be found cited herein. Outlaw v. Outlaw, 118 Md. 503, 84 A. 383; Walker v. Walker, 125 Md. 649, 94 A. 346; Outlaw v. Outlaw, 122 Md. 695, 91 A. 1067. Unless, then, the proof in this case furnishes a sufficient ground or foundation to justify the court in granting a divorce a mensa, with alimony, it is too clear for any question that under the authorities it would not be sufficient to justify a decree awarding alimony alone.
This brings us to a consideration of the facts, as disclosed by the record. While the case is an unfortunate one for both parties, and the facts are both unusual and revolting, we do not consider it necessary to set out the testimony at any length, because in our opinion it does not sustain the appellee's contentions, and the plaintiff has failed to make out a case entitling her to alimony under the bill.
It appears that the plaintiff and defendant were married on the 25th day of June, 1902, in the city of Savannah, Ga., and lived together as husband and wife until the 16th day of May 1914, when she returned to Savannah and remained until the 1st of October, 1914; that about two months after their marriage the plaintiff developed a severe and serious case of syphilis, which she did not contract from her husband, and which has continued in an aggravated form until the present time. At the date of the trial, in June, 1915, she was under care and treatment for the disease by Dr. Settle, chief of the Out-Patient Department and of Nervous Diseases, of the University of Maryland. Dr. Settle testified that she was in need of continual treatment, at this time, for the disease. Dr. Heriot, of Savannah, Ga., testified that upon his first examination of her, two months after the marriage, he found a severe case of syphilis, in the latter part of the secondary stage of the disease, and in his opinion, at that time, she had it "a little over 4 1/2 months," from the condition he found her. He treated her for over 2 years, and was treating her for it when she left Savannah, in 1904. The proof is clear that she did not contract it from her husband, and he had no knowledge of her condition, until 2 months after ...
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