Schwartzman v. Schwartzman

• Decision Date: 12 February 1954
• Docket Number: No. 76,76
• Citation: 102 A.2d 810,204 Md. 125
• Parties: SCHWARTZMAN v. SCHWARTZMAN.
• Court: Maryland Court of Appeals

Page 125

204 Md. 125

102 A.2d 810

SCHWARTZMAN v. SCHWARTZMAN.

No. 76.

Court of Appeals of Maryland.

Feb. 12, 1954.

Herbert Myerberg, Baltimore, and J. Edgar, Harvey, Salisbury (Harvey & Cropper, Salisbury, on the brief), for appellant.

Hamilton P. Fox, Jr., Salisbury, and Harry C. Dashiell, Princess Anne (Hearne, Fox & Bailey, Salisbury, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Esther F. Schwartzman, a resident of Princess Anne, brought this suit against her husband, Morton I. Schwartzman, a resident of Baltimore, for a divorce a mensa et thoro, temporary and permanent alimony, sale and division of jointly owned personal property, and counsel fee for her attorneys.

The parties were married in Baltimore on March 18, 1951. At that time complainant, a daughter of Mr. and Mrs. Herman Fox, of Princess Anne, was 21 years old. In June, 1950, she was graduated from Goucher College, and in the following September she accepted a position as statistician in the State Department of Education. Defendant was 24 years old at the time of marriage. In 1943, while a student at the University of Maryland at College Park, he entered the United States Army. He was sent to Europe where he engaged in combat in the infantry. At the conclusion of the war he was sent to England to take a three months' course in literature at Oxford University. Upon his discharge in 1946, he resumed his studies at the University of Maryland, and received the degree of Bachelor of Arts in 1948. He also entered the Law School of the University of Maryland in Baltimore in 1947, and in June, 1950, he received the degree of Bachelor of Laws and was admitted to the Maryland bar. He thereupon obtained employment in a law office in Baltimore, for which he received a salary of $50 a week.

The couple lived together only one year, residing in an apartment on Manordene Road in the suburbs of Baltimore. Complainant continued working for the State Board of Education, receiving a salary of over $50 a week. She did not enjoy her work, however, and her husband planned to study accountancy with the hope of augmenting his income. While such additional study would require more time downtown and considerable work at home at night, his wife approved of the plan. Accordingly in September, he entered the course in accountancy given by the Baltimore College of Commerce at the Y. M. C. A. He attended classes three days each week from 8:15 a. m. to 10:30 a. m.

Defendant testified that both before and after marriage, he had poor circulation in his legs, which occasionally produced sudden muscular spasms. However, he applied himself to his work with diligence. While studying accountancy, he had to make up in the law office late in the afternoon the time he lost in the morning. Consequently on three days a week he seldom arrived home much before 8 o'clock in the evening. He then found it necessary to study at home, sometimes until after midnight.

After they had been married about six months, complainant began to complain of fatigue. She consulted two physicians and took vitamin pills. For a while she felt better, but soon she complained again. 'Off and on,' defendant testified, 'she would get the tried fatigue periods and complain about her job and cry, and I would try to soothe and caress her, and try to see if there was anything I could do to comfort her.' Her mother persuaded her to consult Dr. Samuel Whitehouse, a specialist in internal medicine. Dr. Whitehouse examined her on January 21, 1952. Not finding any serious ailment, he suggested that she be examined by a gynecologist. Dr. Ruth Finkelstein, a gynecologist, who had examined her before she was married, examined her again and diagnosed her complaint as tension.

On February 14, 1952, there appeared on the scene a young man whom complainant had met at the University of Wisconsin when she was taking a summer course there. She took him around Baltimore on a sightseeing trip, and invited him to dinner in the apartment that evening. Whether the young man's visit had any bearing on the quick succession of events is not entirely clear. However that may be, defendant testified that on the night of February 17 his wife drew away from him when they were in bed and said: 'Morty, it isn't your fault. You haven't done anything wrong to cause this. I have just fallen out of love, and I want to go home to my parents.'

In accordance with her resolve, complainant on Wednesday, February 20, abandoned the apartment and took a bus to Princess Anne. Her husband phoned to the home of the Foxes to plead with her to come back, but she refused to talk with him. Her parents, disapproving of her desertion, implored her to go back to her husband. Finally, after several days of consideration, she agreed to return, but she asserted that 'there was nothing that could be done to make the marriage agreeable.' On Sunday, February 24, her parents brought her back to Baltimore. Her husband was waiting for her at the apartment to give her a cordial welcome, but he found her to be sullen and sarcastic. One of the names she called him was 'big gawk.'

It is plain that complainant did not want to resume matrimonial relations. Her husband testified that, by her own admission, she came back only as a favor to her father and mother, who were starting on a vacation trip to Florida, and they were anxious for her to stay with her husband in Baltimore while they were on their trip. During that interim of one month she called her husband conceited, narrow-minded, and 'stuffy,' and declared that she had no further love for him.

On March 18, 1952, the first anniversary of their wedding, defendant offered his wife some presents, but she spurned them. She called the anniversary a 'farce.' On the following day her father and mother arrived in Baltimore, and that evening she told her husband that she had decided to leave him and to go back to Princess Anne to live with her parents. Defendant testified that he begged her not to leave him, but she said that her decision was final. He further testified that she said she had no grounds for a divorce, but she wanted a divorce, and she hoped he would not give her 'a hard time.' Thus it is undisputed that complainant deserted her husband on March 20, 1952, and that she has not lived with him since.

On September 22, 1952, complainant instituted this suit against her husband in the Circuit Court for Somerset County alleging (1) that ever since their marriage her conduct toward her husband was kind, affectionate and beyond reproach; and (2) that while they were living together in Baltimore, her husband without just cause or reason constructively deserted her.

It was not until January 22, 1953, four months after the institution of suit, that complainant petitioned the Court to authorize her to take testimony for the purpose of determining the allowance of alimony pendente lite.

On February 14 the chancellor, acting upon an agreement of the parties, ordered defendant to pay alimony pendente lite at the rate of $20 a week, accounting from that date to February 26, the date set for the trial of the case, provided that if the trial should be postponed upon defendant's request, then the payments should continue until further order of the Court.

On June 2, 1953, the chancellor passed the final decree, which (1) awarded complainant a divorce a mensa et thoro, (2) ordered defendant to pay permanent alimony at the rate of $15 a week, (3) ordered him to pay to complainant's attorneys the sum of $300 as counsel fee, and (4) ordered that jointly owned personal property be sold and divided equally between them.

On August 6 the chancellor passed an order adjudging defendant guilty of contempt of Court for failure to pay (1) alimony pendente lite in accordance with the order of February 14, and (2) permanent alimony in accordance with the decree of June 2; and directed the sheriff to arrest him and bring him before the Court.

On August 22 the chancellor passed another order which (1) interpreted the order of February 14 to mean that defendant was obligated to pay alimony pendente lite at the rate of $20 a week from February 14 to June 2; and (2) revoked that part of the order of August 6 which adjudged him in contempt for failure to pay alimony pendente lite.

Defendant appealed here from the decree of June 2, 1953, and also from the order of August 6 adjudging him in contempt, and the order of August 22.

It is the law of Maryland that any misconduct of a husband that endangers his wife's health to a degree rendering it physically or mentally impossible for her to properly discharge the marital duties constitutes cruelty within the meaning of the divorce statute. Moreover, any misconduct of a husband that renders the marital relation intolerable and compels the wife to leave him may justify a divorce on the ground of constructive desertion, even though the misconduct may not justify a divorce on the ground of cruelty. Any misconduct of a husband that makes it impossible for his wife to live with him without loss of her health and self-respect, or gives her reasonable apprehension of bodily injury, will justify her in leaving him. Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609; Lent v. Lent, Md., 96 A.2d 14; Rosenthal v. Rosenthal Md., 96 A.2d 500. But in this case there is no evidence that defendant was guilty of misconduct. There is no charge of infidelity, and no charge of cruelty. There is no charge even of redeness, or the use of profane and abusive language, or sallies of passion, which of themselves are not sufficient to warrant a divorce....