Roth v. Roth

• Decision Date: 16 March 1923
• Docket Number: 36.
• Citation: 122 A. 34,143 Md. 142
• Parties: ROTH v. ROTH.
• Court: Maryland Court of Appeals

122 A. 34

143 Md. 142

ROTH v. ROTH.

No. 36.

Court of Appeals of Maryland

March 16, 1923

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

Suit by Ida B. Roth against Louis J. Roth. From a decree of dismissal, plaintiff appeals. Affirmed.

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

David Ash, of Baltimore, for appellant.

John L Sanford, of Baltimore, for appellee.

BOYD C.J.

The bill in this case was filed on the 8th of January, 1920, by the present appellant, by which she sought to obtain a divorce a mensa et thoro from the defendant (appellee), asked for the guardianship and custody of their five minor children, for almiony, alimony pendente lite, and counsel fees. An injunction was also prayed for to prohibit the defendant from disposing of or incumbering his property and from taking any of the children out of the jurisdiction of the court.

The bill alleges that the defendant for many years past had treated the plaintiff "with great cruelty, harshness and brutality, has threatend to strike and beat her, has insulted and vilified her, and for some time past his conduct became so intolerable that your oratrix left his bed." On the 23d of March, 1920, a plea was filed in which the defendant pleaded that on the 23d of October, 1919, the plaintiff filed a bill of complaint in that court against the defendant "for the same matters and to the same effect and for like relief and purpose," to which the defendant answered, and other proceedings were thereupon had, "and the said former bill and proceedings now remain pending in that court, and the said cause is yet undetermined and undismissed." The record does not show what disposition was made of the plea, but on the 13th of April, 1920, the defendant answered the bill at length, in which he denied under oath the allegations of the bill and set out in great detail what he alleged to be the facts. He not only denied the charge of cruelty, etc., made in the bill, but charged that she "for years past has refused to speak to him, neglected and refused to perform her duties towards him appertaining to a dutiful wife, which continued for long periods of time, that would average in recent years one-half or more of the time; that she has treated him with great cruelty, excessive vicious conduct, upbraided him in violent, abusive language, falsely accusing him with committing the crime of adultery and of having and maintaining illegitimate children; that she has repeatedly made remarks to him in the presence of their children impugning the legitimacy of his sister, vilified, abused and slandered his parents." The answer also states occasions when it is alleged she threatened to shoot him, to stab him with a carving fork, to scald him with a tea kettle of hot water, and on October 21, 1919, two days before she filed a previous bill, which the defendant alleges was dismissed by the court, "at about 2 o'clock in the morning she threatened to take something and beat his brains out while he was lying in bed trying to take care of their youngest child about seven years of age, she having gone out and remained out somewhere unknown to the defendant until about between 1:30 and 2:00 o'clock a. m." The answer alleges many other things which, if true, have been seldom equaled by anything which appears in the records of this court. That answer was signed by a former responsible and prominent member of the bar of this court, Mr. S. S. Field, now deceased.

The bill does not disclose that the plaintiff and their infant children were still living in the house of the defendant, 3009 Garrison avenue, in the city of Baltimore, although it does allege simply that the plaintiff "left his bed," but the answer states that--

"The defendant says that the plaintiff is not without means of support, because she is living in the defendant's house, No. 3009 Garrison boulevard, Forrest Park; that the defendant and the plaintiff and their minor children have been living in that house since January, 1910; that the defendant has paid all the expenses of the house, including the expenses of the table and clothing of the plaintiff and their children, including college fees, music lessons and business college fees; that he has provided the support for his wife and their six children until their oldest son became of age 4 years ago; and that the other five children are still minors, ranging in age from 7 to 19 years, and are still being educated, supported, and maintained and provided with a home, comfort, and needs, indeed with many luxuries beyond his ability and station in life; that the plaintiff was living in the house of the defendant, and being amply provided for by the defendant at the time of the filing of the bill, and is still living there and is being provided with the home and the money necessary for the table and support in every way by the defendant as heretofore."

The answer further states that their second son, who was in his twentieth year when the answer was filed, which would make him of age now, earned at least $1,500 a year, of which the defendant received no part, although he was supporting and maintaining him, and denies that he is the owner of other valuable property and large sums of money as alleged in the bill, and states "that practically all of his means have been expended in supporting and maintaining his wife and their large family of children." The defendant also filed an answer to an order to show cause why he should not be required to pay alimony pendente lite which, if true, would be a strong reason for the court to hesitate to require the defendant to pay it. There was an order, however, passed on the 13th of May, 1920, requiring the defendant to pay the plaintiff $20 per week as alimony pendente lite. The defendant took an appeal from that, but just what became of the appeal is not shown.

Orders or decrees were passed at different times by five judges, but on the 5th of September, 1922, Judge Stump passed a decree in which it was recited that "the above entitled cause having come on for hearing upon bill, answer, and testimony taken in open court, and having been heard and submitted," it was decreed that the bill of complaint be dismissed; "that the plaintiff shall have the guardianship and custody of the infant children, John Conrad Roth and Walter Louis Roth, for the term of one year from this date, the court to retain jurisdiction over said infant children for said term, and it is also further ordered that the defendant shall be charged with the support and maintenance of said infant children, the defendant to pay the court costs of these proceedings and the sum of $500 to Ida B. Roth as and for counsel fees. The court reserving for future determination questions of requiring the husband to reimburse the wife for any moneys expended necessarily or properly in connection with this cause."

This appeal was taken on the 18th of October, 1922, "from the order, adjudgment, and decree of the 5th day of September, 1922, dismissing complainant's bill of complaint, and allowing only a $500 counsel fee to the solicitor of the plaintiff, and each and every part of said order, adjudgment and decree."

The next day the plaintiff filed a petition to have the testimony in said cause written up and filed among the proceedings filed a letter from the stenographer in...