Wald v. Wald

• Decision Date: 29 October 1931
• Docket Number: 5.
• Parties: WALD v. WALD.
• Court: Maryland Court of Appeals

159 A. 97

161 Md. 493

WALD v. WALD.

No. 5.

Court of Appeals of Maryland ^[a1]

October 29, 1931

On Motion to Modify February 12, 1932.

Appeal from Circuit Court of Baltimore City; Walter I. Dawkins Judge.

Suit for divorce by Abraham Wald against Rose Wald, who filed a cross-bill. From a decree dismissing the cross-bill, awarding the husband an absolute divorce, awarding the guardianship and custody of the infant daughter to the wife, and charging the husband with the support and maintenance of such infant the wife appeals.

Reversed in part, affirmed in part, and remanded.

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

Eldridge Hood Young and Robert L. Mainen, both of Baltimore (Young, Crothers & Settle, of Baltimore, on the brief), for appellant.

R. Lewis Bainder, of Baltimore, for appellee.

PARKE J.

Abraham Wald and Rose Wald were married in Poland in 1911, and he emigrated to United States in 1914. His wife and daughter Esther remained in Poland, and he saved, and in 1919 sent his wife a ticket and money to rejoin him, which she and their daughter did in August or September of 1920, and a second daughter, Jeanette, was born as a result of their reunion. The couple separated in June, 1921, and have not since cohabited. On April 20, 1929, the husband filed his bill for an absolute divorce on the ground of desertion, and the following month the wife answered and denied the material allegations. On October 4, 1930, she filed a cross-bill for permanent alimony on grounds that would have entitled her to an absolute divorce. After the husband had filed his answer denying his wife's charges of desertion and adultery, testimony was taken before the chancellor who dismissed the wife's cross-bill, and awarded the husband an absolute divorce, and the guardianship and custody of the infant daughter to the mother, and charged the husband with the support and maintenance of the infant to the extent of $10 a week until the infant should become of age or self-supporting. The wife took an appeal from this decree.

At the time of the institution of his suit, the elder daughter was married, and her mother and infant sister lived with her, and Wald was involuntarily paying, pursuant to a judgment of the criminal court of Baltimore city, the sum of $15 a week to his wife for her support and that of the younger child. He had been compelled, by criminal prosecution, to pay, first, the sum of $12.75 to his wife during 1922, and then $15 a week for the remainder of the period of the separation of himself and his wife.

Before his wife came from Poland, Wald, who is an expert baker, had formed a partnership with David Kermisch, and they lived and carried on their bakery in a large building in the 1200 block of E. Lombard street in Baltimore, where their affairs were prospering. The business was conducted on the first floor, and Wald and his wife had their apartment of five rooms on the third floor; and Kermisch and his wife, with their four children, were located on the second floor. Wald informed his wife that she would have to stand in the shop, but she objected. The husband asserted her objection was to the partnership, because she wished no one to be associated in the business except her own family, whom she suggested should be brought from Poland. On the other hand, while the wife admitted that she desired her family to be substituted in the business, she testified that her primary objection was her husband's apparent intimacy with Mrs. Kermisch, who she asserted was his mistress. Whatever the cause, about a month after his wife's arrival, Wald removed his family to two rooms in a residence at corner of Pratt and Ann street, but continued in business until it failed, because, he maintains, of his wife's meddlesome interference and behavior which alienated the customers.

When the bakery enterprise was closed out at the end of May, 1921, Wald had $50 or $60 left, which he affirms he divided with his wife and went to New York to search for work. While there he wrote to his wife and sent her $5, and, not finding employment, he returned home after several weeks' absence. According to his testimony, he went immediately to the rooms, where he and his wife had their home, left his suitcase, and went out, as his wife and daughter were not there; met a friend, Charles Roffeld, and they returned and found his wife, who greeted him with opprobrious names and informed him that she had made her living in the old country and could make it in this without him; that she did not need him any more, and, finally, ordered him away; and that he left in order to avoid fighting. In this narrative, Wald is partly confirmed by Roffeld, who left a few minutes before Wald, and did not understand from what he had heard that Wald's wife had refused to let Wald stay in their home. There is no testimony from which it could be inferred that the wife contemplated physical violence. At the most the scene described was one in which an angry, vituperative shrewish wife held the stage, but this occasion afforded the husband no justification in law to abandon his home and desert his pregnant wife and a daughter, who was about eight years old. In such circumstances, a husband should have recourse to "Tricks * * * to tame a shrew and charm her chattering tongue." Shakespeare's Taming of the Shrew, 1 V. 2, 58. The law is tolerant of this common termagancy to the extent of not regarding it as of itself sufficient to be a cause of separation. It follows that, even if the version of the husband were held to be established, the behavior of the wife could not be considered a constructive abandonment and desertion by the wife who was ever anxious for a reconciliation. Bounds v. Bounds, 135 Md. 220, 108 A. 870; Twigg v. Twigg, 107 Md. 676, 69 A. 517; Wheeler v. Wheeler, 101 Md. 427, 61 A. 216; Harding v. Harding, 22 Md. 337; McKane v. McKane, 152 Md. 515, 137 A. 288; Hillwood v. Hillwood, 159 Md. 167, 150 A. 286; Schwartz v. Schwartz, 158 Md. 90, 148 A. 259.

The husband, the titular head of the house, stated that he walked out to avoid a fight. although there is nothing to show a blow struck or threatened, but he never returned to test his wife's recalcitrance, nor sought a reconciliation, nor made any advance toward a renewal of their cohabitation although he knew she was bearing his child in June, 1921, and gave birth to it in December. By his own account he was not without fault in so complacently acquiescing in his dismissal. The wife, however, contradicted the husband's testimony with reference to the cause of the separation. She testified that he left for New York without giving her any money, and that, when he came back, he went to the home of the Kermischs, and that he never did return to her, although she has persistently importuned him to resume their relations and restore their home. The mother is corroborated by the older daughter, who was then a child, and their testimony, if believed, would convict the father of abandonment and desertion in June, 1921, and entitle the wife to an absolute divorce, since there is no controversy that the spouses have been continuously separated, without marital intercourse since June, 1921, and that the abandonment is deliberate and final and the separation beyond any reasonable expectation of reconciliation. Code, art. 16, sec. 38.

If other persuasive circumstances be ignored, there is one independent, decisive, and undisputed corroborative fact which is convincing proof of the guilt of the husband. After their separation in June, 1921, the wife did not submit to the situation, but shortly charged her husband with nonsupport and desertion. It is true that sections 87-89 of article 27 of the Code create two separate and distinct offenses, one of desertion and the other of nonsupport, as where, first, the husband abandons his wife and lives elsewhere, or, secondly, the husband continues to reside in the same domicile but fails to provide for her support and maintenance. Desertion, however, may include the offense of nonsupport, but the offense of nonsupport may exist without desertion within the meaning of the statute. Pritchett v State, 140 Md. 310, 314, 117 A. 763. So evidence of conviction under these sections is ambiguous, unless the proof disclose the nature of the prosecution. While the testimony was in parol, no objection to its introduction was made in this contested cause; and the testimony must be given its effect, which is clearly that the husband was prosecuted for the desertion, accompanied by nonsupport, of the wife. The burden of proving this desertion was upon the state, as it was on the several subsequent occasions when, with his wife as prosecuting witness, he was re-arrested, at her instance for desertion. Sentman v. Gamble, 69 Md. 293, 13 A. 58, 14 A. 673; Bowersox v. Bowersox, 157 Md. 476, 480, 146 A. 266, 65 A. L. R. 165; Wigmore on Evidence (2d Ed.) § 1270. As the result of these successive prosecutions, where the issue was an abandonment of the wife, sentences were imposed which have compelled the accused and convicted husband constantly to pay to his wife a specified monthly amount from 1922 to the bringing of his suit for divorce in 1929, when he was paying $15 every week for the support of his wife and infant daughter pursuant to a judgment of the criminal court of Baltimore city. Under the circumstances, these repeated judgments are convincing evidence of the husband's wrongful abandonment of the wife. Commonwealth v. James, 9 Pa. Co. Ct. R. 145, 146; Grimm v. Grimm, 8 Pa. Dist. & Co. Rep. 484, 485; Weymers v. Weymers, 81 Pa. Super. Ct. 432, 435, 436; Bauder's Appeal, 115 Pa. 480, 10 A. 41; In re Phillips' Estate, 271 Pa. 129, 132, 114 A. 375; Hahn v....