Roth v. Roth

• Decision Date: 01 February 1924
• Docket Number: 104.
• Citation: 125 A. 556,145 Md. 74
• Parties: ROTH v. ROTH.
• Court: Maryland Court of Appeals

125 A. 556

145 Md. 74

ROTH v. ROTH.

No. 104.

Court of Appeals of Maryland

February 1, 1924

Motion for Reargument Overruled. Denied April 8, 1924.

Appeal from Circuit Court No. 2 of Baltimore City; Duke Bond, Judge.

"To be officially reported."

Action by Louis J. Roth against Ida B. Roth. From a judgment of dismissal, plaintiff appeals. Affirmed in part and reversed in part and remanded.

See also, 125 A. 400.

Argued before BRISCOE, THOMAS, PATTISON, URNER, ADKINS, and OFFUTT JJ.

Richard S. Culbreth, of Baltimore, for appellant.

David Ash, of Baltimore, for appellee.

THOMAS J.

This appeal is from a decree of circuit court No. 2 of Baltimore city dismissing the bill of complaint of the appellant for a divorce a vinculo matrimonii from the appellee.

The bill, which was filed on November 1, 1922, charges that the plaintiff and the defendant were married in October, 1893 and lived together in Baltimore city until some time in June 1918; that they had six children living, the youngest having been born on November 9, 1912, all of whom were being supported, maintained, and educated by the plaintiff; that the defendant had frequently ordered the plaintiff "out of their house and home, and told him to get out and stay away, that she did not want him" and "would not live with him any longer"; that the defendant, against the "wishes and protestations" of the plaintiff, associated herself and "their minor children with some of her relatives who were living * * * immoral and improper lives" and "were unfit and improper associates for their minor children"; that she had "poisoned the minds of their children against" the plaintiff, and had "incited them to acts of disobedience" and "to disrespect" him, and had for many years interfered with the exercise of his parental authority; that for many years the defendant had, without just cause, treated him "with excessively vicious conduct and cruelty" and did "brutally beat and assault" him and fractured several bones in his right hand; that notwithstanding his conduct had always been kind, affectionate, and above reproach, the defendant, without just cause, "willfully and deliberately abandoned and deserted" him, and has declared her "intention to live with him no longer," and that such abandonment has "continued uninterruptedly for more than three years last past, and is deliberate and final, and the separation of the parties is beyond any reasonable expectation of reconciliation"; that in the month of June, 1918, the defendant refused to occupy the same bed and room with the plaintiff, and has ever since refused to do so, and has "refused to live with him as man and wife," to eat with him and to speak to him.

The defendant in her answer admits the marriage and that she and the plaintiff have six children living, but denies the other matters alleged in the bill, except the averment in the seventh paragraph thereof that in the month of June, 1918, she "refused any longer to occupy the same bed or room with" the plaintiff, as to which her answer alleges, "The plaintiff has demeaned himself against this respondent in such a manner that she could not with decency and self-respect occupy the same bed or room with" him, and, "that she arranged another bed and room in another part of the house." The answer further alleges that she brought suit in the circuit court of Baltimore city on the 8th of January, 1920, for a divorce from the plaintiff, and that from the final decree in that case she had entered an appeal, which appeal had not been disposed of, and that therefore circuit court No. 2 of Baltimore city was without jurisdiction in this case.

The plaintiff testified that he and the defendant and their five youngest children reside at 3009 Garrison boulevard, and have resided there ever since 1910; that he and the defendant have not lived together as man and wife since June, 1918, at which time she left his bedroom and has refused to "cohabit" with him ever since; that prior to June, 1918, he and Mr. A. J. Simon owned a farm in Talbot county, Md., near Easton, which was subject to a mortgage of $4,000 and was not paying them, and they decided to sell it; that the defendant knew that the farm was not paying them, and that when he spoke to her about selling it she gave her consent, but that after he and Mr. Simon had entered into a contract to sell it in May, 1918, and he asked her to execute the deed, she refused to do so unless he gave her a large part of the proceeds of sale, which he declined to do because in addition to the mortgage indebtedness he was indebted to the National Bank of Baltimore to the extent of about $3,500 on a note which had become due and payable and he needed his share of the proceeds of sale to pay the note; that Mr. Simon, by reason of the refusal of the defendant to execute a deed, was compelled to file a bill for the sale of the property for the purpose of partition, and that after it was sold and the proceeds were distributed she filed an exception to the auditor's account; that the reason the defendant gave him for leaving his bed was because he refused to give her a part of the proceeds of the sale of said property, and that when she left his bedroom in June, 1918, she took a room on the opposite side of the house and told him she would never live with him any more, did not want to have anything more to do with him and was through with him, and that, notwithstanding he has made repeated efforts to induce her to return to his bed, she positively declined to do so, and has occupied another room ever since; that after she left his room she repeatedly told him to get out of the house and go live with his sister or at a hotel, as she did not want him in the house at all; that the reason he knows that the separation is final, and beyond any hope or expectation of a reconciliation is that in addition to having said to him "over and over again" that she would not live with him or resume marital relations with him, and did not want to have anything more to do with him, the defendant had instituted two suits against him for a divorce; that the first of said suits was brought in October, 1919, and was dismissed in December, 1919, because of her failure after he had filed his answer to comply with the rule for further proceedings, and that after the bill was dismissed he asked her on New Year's Eve in the presence of five of their children to resume marital relations with him and she positively declined to do so and on the 8th of January, 1920, filed another bill against him for a divorce, which, after having been heard on its merits, was dismissed by the circuit court of Baltimore city, and its decree was affirmed by this court in March, 1923 (143 Md. 142, 122 A. 34); that on October 21, 1919, he returned home from Oklahoma, where he had been engaged in some business, and finding the defendant and two of his daughters out, he retired about 11 o'clock, taking his little baby, who was seven years years old, to bed with him; that the defendant and his two daughters came in about half past 1 o'clock and he opened the door for them and then went back to bed; that a short time after he returned to his bed, the defendant came into his room and attempted to take the child out of his bed; that he asked her to leave the child alone, and told her there was no reason to wake him up as he could take care of him, but that she created a scene and woke the child up and he started to cry; that she insisted that the child should go to bed with her, threatened to "take something and knock his [[the plaintiff's] brains out," and finally called up stairs to the third story to his eldest son, who was about 24 years old, to come take the child from him, and incited his son to assault him and compelled him (the plaintiff) to send for police protection and to order his son out of the house; that his son refused to leave the house, and the police officer refused to arrest him unless he accompanied him to the station house and preferred charges against him, but as he was his son and he did not like to see him locked up, he deposited collateral for his appearance next morning; that he (the plaintiff) appeared the next morning before the magistrate, and after asking the magistrate to talk to his son, he withdrew the charges against him; that on another occasion, on the 27th of July, 1920, when he was about to return to Oklahoma on business and was packing his grip, he looked into his bureau and around his room for some handkerchiefs and a towel or two, and finding none he went into the defendant's room to look for some, and as he was looking for some handkerchiefs in her bureau drawer she came in with some of the children and in a furious manner started to villify and abuse him, and with all the force she could she closed the bureau drawer and caught his hand in it so that he could not pull it out, and then picked up a large hand mirror that was on the bureau and struck him with it repeatedly and broke four bones in his right hand; that she constantly interfered with the exercise of his parental authority over his children and threatened to shoot him a number of times.

On cross-examination the plaintiff said that the defendant had on three occasions prior to 1918 refused to occupy his bed and that in 1895 she deserted him for four years, and in October of that year filed a bill against him for a divorce a mensa et thoro, alimony and counsel fees, which she afterwards dismissed; that he never gave her "any cause * * * and did not know any reason" for such treatment, except that she had declared to him that she had married a man she never loved because of her mother's request, and he objected to her taking his daughters to visit her brother, who was living in open and notorious...