Schwartz v. Schwartz

• Decision Date: 07 January 1930
• Docket Number: 34.
• Parties: SCHWARTZ v. SCHWARTZ.
• Court: Maryland Court of Appeals

148 A. 259

158 Md. 80

SCHWARTZ v. SCHWARTZ.

No. 34.

Court of Appeals of Maryland

January 7, 1930

Appeal from Circuit Court of Baltimore City; Duke Bond, Judge.

Bill by Viola O. Schwartz against Henry C. Schwartz, in which the defendant filed a cross-bill. From a divorce decree for plaintiff and a decree giving plaintiff custody of an infant child, defendant appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Francis I. Mooney and George Arnold Frick, both of Baltimore, for appellant.

J. Paul Schmidt, of Baltimore, for appellee.

OFFUTT J.

The parties to this appeal were married on June 29, 1921. The appellant, Henry C. Schwartz, a widower with grown children lived in Baltimore, where he carried on a wholesale and retail kraut and pickle business, had acquired some property and received from his business and his property a comfortable income. Viola O. Schwartz, the appellee, was a widow, also with grown children with whom she lived in her own home on Henrietta street, in Baltimore. They met during the lifetime of the appellant's first wife, who was for some years prior to her death an invalid, apparently confined to her home, and while there is nothing in the evidence to justify the conclusion that at that time they were anything more than friends, they were at least very close friends, often together, and not long after the death of the first Mrs Schwartz, they were married.

Although they both lived in Baltimore at the time, they were married in Philadelphia, and their marriage was apparently not announced until the following September, when he and his children and she and her children went to live in the appellee's home, and on September 30, 1922, Vivian O. Schwartz, the only child of the marriage, was born. As might have been expected, the compulsory association of the members of these illassorted families was neither happy nor harmonious. Schwartz's children apparently believed that the relations between Schwartz and the appellee which culminated in their marriage had begun and continued while his first wife, their mother, was confined to her bed by the illness which finally resulted in her death, and not unnaturally they resented that, and they disliked her. She on her part appears to have done little to conciliate them, so that from the beginning there was much bickering and ill feeling between appellee and Schwartz's children. They reproached her for her relations with their father during their mother's life, and she upbraided them for their disrespect, they quarreled frequently, and finally acting, she said on the advice of her physician, she asked Schwartz to take them away. Accordingly in January, 1922, Schwartz established them in another home, although he continued to live with his wife in her home until December, 1923, when he, too, finally left her home. For a time after he left he allowed her $10 a week for her support and that of their child, but in the latter part of the year 1924, alleging that he had threatened to reduce that allowance, she had him arrested for nonsupport. In obedience to an order passed in that proceeding, he paid her from that time on $15 a week for the support of herself and her infant child, but she continued to live apart from her husband, and on January 20, 1926, she filed the bill of complaint in this proceeding against him. In that bill she alleges that he abandoned her and her infant child, and prays that she may be divorced a mensa et thoro from him, that he may be required to pay permanent alimony for her support and also for the support of the child, and that the custody of the child be awarded to her. In due course Schwartz answered the bill, denied that he had abandoned his wife, and later filed a cross-bill against her in which he prayed that he might be divorced from her on the ground that she had abandoned him. She in turn denied so much of the cross-bill as charged her with abandonment, and the case was tried in open court on those pleadings. At the conclusion of the case the court dismissed appellant's cross-bill and decreed that the appellee be divorced a mensa et thoro from the appellant, that he pay her $15 a week alimony, and that she have the custody of their infant child, subject to the appellant's right to visit and be with him at seasonable times and places. This appeal is from that decree.

Assuming that the appellee was entitled to any relief at all, neither the propriety of the amount allowed for alimony, nor the award of the custody of the infant child of the parties to the appellee, were questioned in this court, but the sole question presented is whether the trial court erred in finding that appellant had abandoned his wife.

Under Code, art. 16, § 39, a divorce a mensa et thoro may be granted where the erring spouse has been guilty of (1) cruelty of treatment, (2) excessively vicious conduct, or (3) "abandonment or desertion." "Abandonment" has been defined to mean the voluntary, unjustified, and final separation of one of the married parties from the other accompanied by an intention to terminate the marital relation, Buckner v. Buckner, 118 Md. 113, 84 A. 156, 160, Ann. Cas. 1914B, 628; Keezer on Marriage & Divorce, § 326; Muller v. Muller, 125 Md. 76, 93 A. 404; Hubbard v. Hubbard, 127 Md. 620, 96 A. 860; Polley v. Polley, 128 Md. 66, 97 A. 526; Young v. Young, 136 Md. 85, 110 A. 207; Klein v. Klein, 146 Md. 29, 125 A. 728; Miller v. Miller, 153 Md. 218, 138 A. 22; Daiger v. Daiger, 154 Md. 503, 140 A. 717, or an unjustified refusal to resume suspended cohabitation, Buckner v. Buckner, supra.

The fact that Schwartz actually left the home in which he was living with his wife, and which she owned, and eventually went to live with his children in the home which he owned, is undisputed, so that the inquiry is whether, under the circumstances of the case, (1) in so separating from his wife he intended to terminate the marital relation, (2) whether his act was justified, and (3) whether she was justified in refusing to accept his offer (assuming that it was made) to resume marital relations with her if she would come to live with him in his home with his children.

There can be little doubt that the disposition which the trial court made of the case would best promote the happiness and welfare of the parties to this appeal, but since its right to grant that relief is challenged, the propriety of its decree is not to be measured by such considerations, but by the limits of the power which the Legislature has granted to it in dealing with such cases, as that grant has been construed by this court. So that the question presented to the trial court was not what would best serve the interests of the parties to the cause, but whether the evidence proved a ground for divorce under the statute. The evidence relating to that issue is not only conflicting, but is vague, indefinite, and confused both as to dates and incidents, and the only facts which emerge from it with reasonable certainty and clearness are that Schwartz did leave his wife's home, that since December, 1923, they have been living apart, and that it is impossible for Mrs. Schwartz and Mr. Schwartz's children by his first wife to dwell together amicably.

Mrs. Schwartz, testifying in her own behalf, said that prior to September, 1921, Mr. Schwartz suggested that he bring his three children to live with him in the house which she then owned; that she consented, and that Mr. Schwartz and his three children moved into her house, which she and her three children then occupied; that the Schwartz children ignored her, kept to themselves, failed to introduce her to such friends as happened to visit them, were disrespectful to her, and were so disagreeable and unpleasant in their manner that, acting upon the advice of her physician, she asked Mr. Schwartz to take them away until her baby was born; that he did in January, 1922, take them away; that after her baby was born she asked him to bring them back, but that he reported to her that they refused to return. While neither of Mr. Schwartz's children admitted that they were in any way to blame for the unpleasant relations between them and Mrs. Schwartz, nevertheless their testimony tends to corroborate much of what she said in regard to their conduct towards her.

Mildred Schwartz, the oldest daughter, said that on one occasion after an altercation over some household work, she had told Mrs. Schwartz:

"That she was no lady, if she had been she would not have gone with my father when my mother was still living, and that led to an argument. She tried to push me out of the door and I held on to the refrigerator.

Q. How do you know she went with your father while your mother was still living. A. On several occasions my sister followed my father down to her home."

Thelma the younger daughter, also testified that Mrs. Schwartz nagged and abused them, and said that on one occasion "there was some argument over some trifling matter; I would not do what she said, or something, I supposed, and she grabbed hold of me and tried to choke me, and I shook her away, and on another occasion I was on the back porch and she wanted a little girl to disobey her mother--the little girl's mother wanted her to watch for her father to come home from work; she told Virginia to watch for her father, and Mrs. Schwartz wanted her to go to the store, and there it was some more talk about that and I told the little girl if her mother told her not to go that she should not go, and Mrs. Schwartz came out and slapped me, and I started to go down to the factory to my father, and when I got there she had already called up and told my father the whole story, so I stayed there until supper time when I came up with my...