Wilner v. Wilner

• Decision Date: 08 October 1968
• Docket Number: No. 303,303
• Citation: 246 A.2d 273,251 Md. 13
• Court: Maryland Court of Appeals
• Parties: Alan M. WILNER v. Brenda K. WILNER.

Page 13

251 Md. 13

246 A.2d 273

Alan M. WILNER v. Brenda K. WILNER.

No. 303.

Court of Appeals of Maryland.

Oct. 8, 1968.

Carville M. Downes, Towson (Downes & Seiland, Towson, on the brief), for appellant.

Thomas L. Hennessey, Towson, for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

SINGLEY, Judge.

This is an appeal by Alan M. Wilner from a decree of divorce a mensa et thoro entered against him by the Circuit Court for Baltimore County in a suit brought by his wife, Brenda K. Wilner.

The parties were married on 20 April 1958, and have two children, now eight and six. The Wilners' marital difficulties apparently commenced in January of 1965, when according to Mr. Wilner's testimony, which was not denied, Mrs. Wilner took a bank book belonging to Mr. Wilner's mother, forged Mr. Wilner's name to a withdrawal order, withdrew the entire balance of $3,000, nd spent some $1,900. As a result of the recriminations which followed this incident, Mrs. Wilner consulted a lawyer with a view to arranging a separation, but was persuaded by her counsel to seek psychiatric help. Her psychiatrist recommended intense psychotherapy. Mrs. Wilner discontinued treatment after 'a week or two' and in early February 1966, again saw her lawyer with the idea of arranging a voluntary separation.

On 17 February 1966, an altercation developed over Mr. Wilner's race track pass. The parties differ as to what happened. Mrs. Wilner described the incident:

'I went about my normal household responsibilities, took care of the children, came home, prepared dinner, and he did come home and ate. Then, he went up to his room and read. Then, later on in the evening, I had asked him could I please borrow a racing commission pass that he had had from the racing commission. I thought I'd like to go the following day and take a friend and he said, 'You cannot have it.' I said, 'But you have lent it to me before and it said Mr. and Mrs Wilner so it is partially mine,' and as I was going downstairs, he had all of his papers and his wallet on the piano and as I was going down the stairs, he screamed, 'Don't you touch that pass,' and I was walking downstairs toward the piano where I assumed the pass was. He grabbed me, threw me to the floor and I can remember he had his hands over my mouth and nose and I felt like I was suffocating and when I got up, I couldn't see and I felt wet and I ran to the bathroom and saw that I was bleeding and I immediately ran and called the police and he immediately ran and called his mother.'

This was Mr. Wilner's version:

'I had a racing pass for Mr. and Mrs. Wilner and one guest, and Brenda said, this is half mine, and I want half, and I am going to take half of it. She went downstairs with the purpose of taking it out of my wallet and tearing it in half. This is what she told me she was going to take half, half that belonged to her. I went down to stop her because I needed the pass and when I got downstairs, she already had my wallet in her hand and when I reached for it, she put her hand behind her back and I went to get it and the area in which we were standing is not carpeted, it's a wood floor and we both (fell) and I removed my wallet by simply taking it away from her. I never hit her, I never kicked her, I never tried to smother her. As soon as I got my wallet, I went back upstairs, and when Brenda got up, the first thing she said is, I'm glad you finally have done that, she ran to the phone, called the police, called the lawyer, called Judge Allen, and then went upstairs into the bathroom. I went upstairs as soon as I heard she called the police, I called my mother, just to have a witness there, if I was going to be carried away to the police station, someone was going to have to stay with the children. The police came, one officer, I believe came. Shortly after that, my mother and my brother came. Brenda was very upset, she was hysterical.

She wanted to swear out a warrant and Judge Allen, she called Judge Allen, and apparently he persuaded her for some reason. She said, if you leave, I won't swear out the warrant and I was concerned again about the question of, was this a desertion, what was I doing if I left, and she said, no, I just want you out. It isn't desertion, just go, and it was the-understanding was, I was to leave for that night only. I was to come back the next day and that was the only basis on which I left. It was just for the night, to give her a chance to cool off. After she talked to Mr. Myerberg (Mrs. Wilner's counsel), I spoke to Mr. Myerberg that same night and, it was decided that she would not let me back in the house, and I stayed away for a period of about ten days, except for a birthday party and she would not let me come back to live in the house. I came back to get some clothes and I came back for the child's birthday party, and the next time I saw her was, I think, at the birthday party. She had painted herself all up with gentian violet.'

Mrs. Cyril M. Wyatt, called as a witness by Mr. Wilner, in response to the question, 'Did she (Mrs. Wilner) ever complain to you about being threatened or about being beaten by her husband?' said:

'I did not want to get involved in this and at one time, she told me something about a scuffle over a wallet and I did not remember what the problem was with the wallet, but she did say to me that she had fallen down and that Alan-that he did not really hurt her, but she let him think she (sic) did.'

Sometime after the wallet incident, Mrs. Wilner again sought psychiatric assistance. According to Mr. Wilner, during the first joint session with a new psychiatrist, the psychiatrist said, '(I)f this was the case, he could see no future in the marriage and recommended that Brenda (Mrs. Wilner) seek counsel to terminate it.' In response to the chancellor's inquiry, 'If what was the case?', Wilner continued 'If she said she was going to continue this kind of spite work, not cooking meals, running up credit, based on that, he said he could see no future in the marriage, and we left and then we made another appointment to come back after Brenda had a chance to talk to a lawyer and we did go back for the second joint visit. Brenda had been to see, I think, Mr. Hennessey (Mrs. Wilner's counsel at that time), and said that we had both agreed to seek a termination of the marriage.'

Later, the Wilners visited the psychiatrist a second time, and Mr. Wilner described that interview:

'The recommendation was made in the first joint visit, Your Honor, and then on the second visit, we came back and simply reported that we had followed his recommendation, that she had seen an attorney, and that we were then in the process of attempting to terminate the marriage or at least agreeing on a separation, which would lead to a termination of the marriage. That was the last visit we had jointly with the psychiatrist and I understand she went one or two more times. I didn't know she was going since then.'

The record is not clear as to the dates of these interviews, but it would appear from Mrs. Wilner's testimony that the last joint visit was just before mid-August, 1966. According to her testimony, co-habitation had ceased in July.

On 15 August, Wilner left Baltimore to attend a convention in Indiana, and returned on 20 August. On his return, he found a letter dated 17 August from Mrs. Wilner, who had written to him just prior to leaving for New York City:

'Alan,

The girls received your post cards this morning and as I read them I did shed some tears. I don't think for me, (although I feel very sorry for myself) but for them and how terribly they miss you already and how hard it's all going to be.

I truly don't think there can be anything left between us. There are times I have my doubts. Like Mon. morning when you left without a good-by. Again, I guess I'm feeling sorry for myself. Probably, even if things were normal you wouldn't have thought of this little nothing which always was so important to me.

Be assured I'll never ever turn the children against you or use them for my personal gain. They need you now and will continue to need you. No matter what you think me capable of doing this I promise.

I left the house as comfortable as possible. Jo Ann will be in Tues. She has the key and has been paid thru Aug.

I'm hoping you'll arrange to come to N. Y. for the childrens sake and to help me with the drive home. This whole business has taken a terrible toll on me physically and mentally as you know and I'm trying my best with the girls and the outside world.

Also, please don't stand on ceremony about contacting Tom Hennessey and getting the ball rolling. The existing situation is truly destructive for the four of us and as soon as some order can be put into our lives again hopefully everyone will benefit. Hoping to hear from you soon.

/s/ Bren'

On 18 August, Mrs. Wilner wrote a letter to her mother-in-law, which read, in part:

'Truthfully, it's been a miserable week for me. I guess I mostly feel very, very sorry for myself besides a great deal more physical & mental work. I truly doubt there is anything left between Alan & myself but the little things still hurt. Like Mon. morning when the left without even saying good by and this mornings phone call when he didn't even ask to speak to me when the girls had finished. I suppose all these things should make the break easier for me but they aren't.

The children's missing him tear me to pieces but I can't let them see that. No matter what Alan thinks of me, I'll never, never use them for my own benefit or as a weapon against him. They need him too much. And, he needs them desperately I hope.

Well, enough of this. My only hope at this point is Alan won't stand on ceremony and keep me hanging. He's got to move now that I've got the ball rolling. If you have any influence with him now please help me with getting our lives organized as quickly as possible. The current...