Porter v. Porter, 5.

• Decision Date: 06 March 1935
• Docket Number: No. 5.,5.
• Citation: 177 A. 464
• Parties: PORTER v. PORTER.
• Court: Maryland Court of Appeals

177 A. 464

PORTER

v. PORTER.

No. 5.

Court of Appeals of Maryland.

March 6, 1935.

Appeal from Circuit Court, Allegany County; Albert A. Doub, Judge.

Suit by Elsie M. Porter against Charles A. Porter. From an adverse decree, defendant appeals.

Affirmed in part, reversed in part, and remanded.

See, also, 177 A. 460.

Argued before BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN, SIIEHAN, and JOHNSON, JJ.

Simon E. Sobeloff, of Baltimore (George Henderson and Elmer J. Carter, both of Cumberland, and Wm. Taft Feldman, of Baltimore, on the brief), for appellant.

Charles Z. Heskett, of Cumberland (David A. Robb, of Cumberland, on the brief), for appellee.

SHEHAN, Judge.

This is a suit for divorce a mensa et thoro brought by Elsie M. Porter, the appellee, against her husband, Charles A. Porter, the appellant. A final decree was passed whereby a divorce a mensa et thoro was granted to the appellee, and the custody of their child, Gail Porter, was awarded to the mother. Other relief was granted, as prayed in the bill. From this decree the defendant, Charles A. Porter, appealed.

The parties to this suit were married on May 3, 1923, and resided together in Cumberland, Md., until about the 1st of September, 1933. There was one child, Gail Porter, born to them, who at the time of the institution of this suit was seven years of age.

The bill of complaint was filed on the 14th day of September 1933. In the bill there are allegations of great cruelty, harshness, and brutality. It is charged that at times the appellant struck and beat the appellee, and by threats put her in fear of her life, and his conduct became so intolerable that she could no longer live with him, in safety to herself and to their child.

The title to the property in which they lived is in dispute, and the suit relative thereto is on appeal in this court it is alleged that in addition to his cruelty, threats, and violence, he had lately been removing much of the furnishings from the home. Upon her return from a trip with her daughter she found other furniture packed and ready for removal from the home, and that articles of furniture, including rugs, pottery, most of the table silver, and the clothing of her husband had been carried away.

The complainant alleges that she has been faithful, affectionate, and chaste, and her conduct above reproach. Allegations relating to the financial condition of the defendant, his earnings, her lack of means with which to support and maintain herself and their child, are set forth with some particularity in the bill. She charges that, by reason of the threats made by her husband against her, she is fearful for the life of herself and her child, if he be allowed to come to her home after the filing of her suit.

The bill then prays for a divorce a mensa et thoro, for the guardianship of the infant child, Gail Porter, for permanent alimony, alimony pendente lite, counsel fees, and also prays that the furnishings which had been removed from their home be returned, and that her husband be restrained from going to her home or interfering with her or her child in their manner of living, and for general relief.

The suit was filed in Allegany county, and a preliminary order was passed thereon allowing alimony pendente lite, counsel fees, and restraining the defendant from interfering with the plaintiff and the infant child, Gail Porter, and awarding the custody of the child to her mother. The defendant filed an answer denying all the essential allegations of the bill of complaint, especially those relating to his misconduct and cruelty.

A voluminous amount of testimony was taken, and on the 28th day of May, 1934, a decree was passed by the circuit court for Allegany county, in equity, in which a divorce a mensa et thoro was granted to the plaintiff from the defendant, permanent alimony was allowed to her, and the permanent guardianship and custody of Gail Porter was awarded to the mother, who was charged with the maintenance and support of said infant child, with certain rights of visitation to the father, and the jurisdiction of the court was retained as to such alimony, and the custody, maintenance, and support of the infant child. From this decree the appeal in this case is taken.

In view of the fact that the parties are now separated and living apart from each other, so much of the decree as awards the permanent guardianship and custody of the child Gail Porter to her mother is affirmed, and a reasonable sum should be allowed for the support, maintenance, and education of the child, payable to Elsie M. Porter, her permanent guardian and custodian. The welfare and happiness of the child requires this disposition to be made of her custody, support, and maintenance. She is the innocent victim of circumstances entirely beyond her control, and her well-being is of first consideration in this suit. Her age, sex, education, and mother's parental care, together with the probable embarrassment and humiliation that she may suffer because of the differences that have arisen between her father and her mother, doubtless have been given the most careful consideration by the chancellor, and it is our opinion that the decree dealing with this part of the case be affirmed. There remains for our consideration the question of whether the chancellor erred in granting a divorce a mensa et thoro to Mrs. Porter, and in awarding alimony to her.

The conduct of the parties to this case towards each other, as detailed by the testimony, is difficult of comprehension. At times they were apparently kind and congenial. They took many long trips together, especially before the child was born, after which event Mrs. Porter's presence was required at home to a much greater extent than formerly. She was helpful to him in his business affairs, and on many of these trips aided him in examining and checking accounts, and at times he was most generous with her. She dutifully cared for him when he was sick with diabetes, and the home was exceptionally well kept. They lived together for about ten years. In certain parts of the testimony there is no serious conflict, but in most instances, especially where the evidence is of greater importance, there are hopeless contradictions and some recriminations. Mr. Porter seems to have been an eccentric man, lacking a true sense of proportions, and certainly this is the case in his dealings with his wife generally, and especially relating to the manner in which he treated her with regard to their financial affairs. He limited her and her daughter to $25 a week for expenses during their trip or vacation to Ocean City. On the other hand he gave her a diamond ring that cost more than $1,000 and a bracelet that cost over $400. In some instances he seems to have been selfish and penurious; in others his generosity extended to lavishness. At times he was exceedingly kind; at others harsh, and, according to her testimony, unusually cruel. He afforded her a pretentious home, equipped with beautiful and costly furnishings of all kinds, yet he permitted her to do the drudgery naturally incident to an establishment of such proportions.

He occupied a position of importance and responsibility in his city and apparently had friends of high standing in the place in which they lived; yet he brought Mrs. Porter to Cumberland before they were married and they lived together. Later she was subjected to the chagrin of being named corespondent in a divorce suit brought against him by a former wife, and after having been divorced, and after paying a substantial sum of money to his former wife, he married the appellee. Nevertheless, she apparently was a complacent party to all of this. After they were married, and during a period of six or eight months, he manifested kindness and consideration towards her, but differences arose and then it is charged he treated her with indignity,...