Singewald v. Singewald

• Decision Date: 26 May 1933
• Docket Number: 44,45,46.
• Parties: SINGEWALD v. SINGEWALD (THREE CASES).
• Court: Maryland Court of Appeals

166 A. 441

165 Md. 136

SINGEWALD v. SINGEWALD (THREE CASES).

Nos. 44, 45, 46.

Court of Appeals of Maryland

May 26, 1933

Appeals from Circuit Court of Baltimore City; Robert F. Stanton Judge.

Bill by Eleanor Smith Singewald against H. Elmer Singewald for a divorce a mensa et thoro. From so much of a decree as dismissed the portion of the bill praying a divorce plaintiff appeals, and from so much of the decree as awarded children's custody to plaintiff and allowed her a counsel fee, defendant takes two appeals, the three appeals being in one record and argued together.

Affirmed.

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

J. Purdon Wright and Isaac Lobe Straus, both of Baltimore, for H. Elmer Singewald.

Paul M. Higinbotham and William Purnell Hall, both of Baltimore (Sophie K. Nordenholz, of Baltimore, on the brief), for Eleanor Smith Singewald.

OFFUTT Judge.

Eleanor Smith and Elmer H. Singewald were married on November 14, 1917, by a Presbyterian minister in Bel Air, Md., and except for occasional intervals of short duration lived together as husband and wife until October 19, or 20, 1932, when they separated. There were two children of the marriage, Eleanor and Ruth, who were at the time this suit was brought, aged thirteen and twelve years respectively. For some time prior to that date, the relations between Mr. and Mrs. Singewald were far from harmonious, and on October 26, 1932, she filed against him in the circuit court of Baltimore city the bill of complaint in this case in which she charged that his conduct towards her had been so cruel, brutal, and vicious that she had been forced to leave him, and in which she prayed that she be divorced a mensa et thoro from him; that she be awarded the care and custody of their two infant children; that she be allowed alimony pendente lite and permanent alimony. The defendant answered, denied the charges, and alleged that his wife had abandoned and deserted him without just cause. The case was tried upon those issues, and on January 31, 1933, a decree was entered in which the court dismissed so much of the bill as prayed a divorce, allowed the plaintiff a counsel fee of $600, and further decreed that "the custody of Eleanor Singewald and Ruth Singewald, infant children of the parties hereto be and it is hereby awarded to Eleanor Smith Singewald, with the right to Elmer H. Singewald to have said children every other week end from one-thirty P. M. Saturday until seven P. M. Sunday, he, the said defendant, to pay all traveling costs incident to the week end visits of the children to him; the said Elmer H. Singewald, defendant, to pay to and unto the said Eleanor Smith Singewald the sum of Twelve dollars and fifty cents ($12.50) a week for each child, emergency and extraordinary expenses, such as doctors' and dentists' bills, to be in addition to the weekly allowance provided; this Court retaining jurisdiction over said children."

From so much of the decree as in part dismissed the bill, the wife appealed, and from so much thereof as awarded the custody of the children to the mother and allowed her a counsel fee, the husband appealed, and those three appeals are submitted by this record. No point was made in this court, either in the oral arguments or the briefs of appellant, as to the allowance of a counsel fee to Mrs. Singewald, and the appeal from so much of the decree as dealt with that question will be treated as abandoned, so that there remain in the case two questions, (1) whether the court erred in denying Mrs. Singewald a divorce a mensa et thoro and (2) whether there was error in so much of the decree as dealt with the custody of the children.

The learned chancellor who heard the case in a very careful and discriminating opinion reached the conclusion that the evidence was not sufficient to justify a decree of divorce, and accordingly dismissed so much of the bill as prayed that relief, and since the parties were in fact actually separated and it was necessary to make some disposition of the children, he reached the further conclusion that under all the circumstances in view of their age and sex it was appropriate and for the best interests of the children themselves that their custody be awarded the mother, reserving to the court jurisdiction over them, and reserving to the father the right to have them "every other week end from one thirty P. M. Saturday until 7 P. M. Sunday."

With so much of the decree as denies the divorce and awards the general custody of the children to the mother, we are in entire accord, and in view of that opinion it would serve no useful purpose but would be needlessly embarrassing to the parties to review in detail in this opinion the voluminous and recriminatory evidence found in the record, and we will therefore merely state our conclusions in respect to it.

The case was ably presented to this court, but in strict accord with the conventional traditions of our system of litigation under which each side assumes the infallibility of favorable witnesses and the fallibility of adverse witnesses, leaving to the court to discover as best it may the truth which lies somewhere between those extremes. In dealing with so much of the case as relates to the prayer for a divorce the court is aided by the rule that one holding the affirmative is under the burden of proving it, while in dealing with so much of the decree as relates to the custody of the children it is aided by no rule or presumption other than that some positive weight must be given the conclusion of the chancellor who had before him the witnesses, and who had therefore in determining the credibility of their testimony opportunities of observing their demeanor and attitude denied to this court.

The wife's complaints as to cruelty may be classified in respect to two periods, one, prior to October, 1919, the other subsequent to that date. Whether the acts and conduct of which she complained and which occurred prior to October, 1919, were sufficient in themselves to constitute legal cruelty as defined by this court in such cases as McKane v. McKane, 152 Md. 516, 137 A. 288, and Short v. Short, 151 Md. 444, 135 A. 176, need not be considered or decided in this case, for whatever the effect of such acts and conduct may have been they were condoned by the wife.

As a result of her husband's alleged cruelty, Mrs. Singewald in October, 1919, left his home, carrying with her their infant child, and went to live with her mother in Bel Air, and shortly after that brought a suit for a limited divorce against him on the ground of cruelty. After that, at his request, she returned to his home, lived with him as his wife until October, 1932, throughout that entire period had marital intercourse with him, from time to time left his home because of cruelty of which she now complains, and after each separation, returned, and after each return resumed marital intercourse with him. Such conduct amounts in law to a condonation of offenses occurring prior to October, 1919. For while condonation is based upon an implied promise that the erring spouse will not repeat the injurious offenses, nor be guilty of other misconduct which would render the continuance of the marital relation intolerable to the injured party and upon the implied condition that a breach of the promise revokes the condonation, Keezer on Marriage and Divorce, § 425, 9 R. C. L. "Divorce and Separation" § 177, 19 C.J. 87, Duckett v. Duckett, 143 Md. 556, 123 A. 55, there must of necessity be some limitation to that rule. And where the offenses sought to be revived are so remote in point of time and the conduct of the parties has been of such a character that no rational conclusion can be reached other than that the complainant has finally and unconditionally surrendered any and all rights to complain of such offenses they may not be revived as a separate and sufficient ground for divorce, Duckett v. Duckett supra, 143 Md. 551, 123 A. 55, Daiger v. Daiger,

154 Md. 505, 140 A. 717, although they may be considered in determining the quality and significance of defendant's subsequent conduct. For as stated in a quotation from McFarlane v. McFarlane, 11 Scotch Sess. Cas., 2d Ser., 633, found in Bishop on Marriage, Divorce and Separation § 304: "Although acts of violence committed at an earlier period, and which have not prevented her from living with him, or going back to him after they have been separated, cannot be made the sole foundation of an action of separation, they may form the subject of investigation and proof with a view to determine what is the true issue of the case; namely, whether the wife can with safety to person and health live with him now. Because not only do they afford an indication of what the man's temper and habits are, but they also show what may be the result of still continuing to live with him if there have been acts of recent occurrence, although these may not be of the same aggravated type. In the words of Lord Jeffrey in another case, 'the last drop makes the cup of bitterness overflow.' "

As is not unusual in cases of this character, the key to the case as well as to the evidence lies in the varying viewpoints of the parties, and in the failure of each to allow for the peculiarities of the other. Each expected of the other a degree of tolerance, forbearance, and submission which neither yielded to the other, and each measured the other's conduct by a standard which neither regarded as binding himself or herself. Consequently every slip, every fault, every harsh word, or inconsiderate act was noted and preserved with that intense and unyielding bitterness which so often reaches its flower in domestic litigation.

The parties themselves are...