Zukerberg v. Zukerberg

• Decision Date: 15 May 1947
• Docket Number: 123.
• Parties: ZUKERBERG v. ZUKERBERG.
• Court: Maryland Court of Appeals

53 A.2d 20

188 Md. 428

ZUKERBERG v. ZUKERBERG.

No. 123.

Court of Appeals of Maryland

May 15, 1947

Rehearing Denied June 11, 1947.

Appeal from Circuit Court No. 2 of Baltimore City; Michael J Manley, Judge.

Suit by Samuel Zukerberg against Sarah Zukerberg for divorce a vinculo matrimonii. From decree granting a divorce a vinculo matrimonii, defendant appeals.

Decree reversed and bill of complaint dismissed.

Arthur R. Padgett, of Baltimore (Samuel J. Aaron and Howard L Aaron, both of Baltimore, on the brief), for appellant.

Eldridge Hood Young, of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

The parties to this cause, Samuel Zukerberg and Sarah Zukerberg were married on March 19, 1942. The husband was a widower with five children. The wife had never been married before, was just over forty years of age and had worked for ten years in a printing establishment. The husband is about two years older than the wife.

Sarah Zukerberg, hereinafter known as appellant, on November 8, 1943, filed a bill for permanent alimony against her husband, Samuel Zukerberg, hereinafter known as appellee, on the grounds of constructive desertion caused by her husband's cruelty. After hearing, Chancellor W. Conwell Smith in Circuit Court No. 2 of Baltimore City on January 11, 1944, passed a decree directing Samuel Zukerberg to pay unto the appellant as alimony the sum of $25 per week for the period of one year from the date of the decree, subject to further order of the Court.

On January 18, 1945, the appellant filed a petition asking that the order of January 11, 1944 for the payment of alimony be extended because the appellee had stopped payments. After testimony taken, Chancellor Eugene O'Dunne on February 15, 1945 decreed that the appellee pay the appellant as alimony the sum of $20 per week, subject to further order of the Court. On April 11, 1945 an appeal was noted by the appellee from that order. This appeal was later dismissed by the appellee.

On April 27, 1946 the appellee filed a bill of complaint in Circuit Court No. 2 for Baltimore City against the appellant, alleging that she deserted and abandoned him on or about the 1st day of November, 1943. He alleged that although the parties had lived separate and apart since that date, he had made repeated efforts and offers of reconciliation in good faith to the appellant, which she had refused. He asked for a divorce a vinculo matrimonii and for other and further relief. After hearing on October 26, 1946, Chancellor Michael J. Manley signed a decree granting to the appellee, Samuel Zukerberg, a divorce a vinculo matrimonii from the appellant, Sarah Zukerberg. From that decree the appellant, Sarah Zukerberg, appeals to this Court.

Alimony can be awarded by equity courts in this State. Code, Article 16, Section 14, provides: 'The courts of equity of this State shall and may hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there.'

It is a well-known principle of law tht alimony will not be awarded except on grounds which would be sufficient to grant a divorce a mensa et thoro or a vinculo matrimonii. Wendel v. Wendel, 154 Md. 11, 20, 139 A. 573; Strzegowski v. Strzegowski, 175 Md. 53, 58, 199 A. 806. A divorce a mensa et thoro may be decreed forever, or for a limited time. Code, Article 16, Section 41. Therefore, when Chancellor Smith passed his decree on January 11, 1944, that decree was an adjudication that the appellee had deserted the appellant. Also when Chancellor O'Dunne, on February 15, 1945, extended the order for the payment of alimony, that decree was an adjudication that as of that date the appellee had deserted the appellant. Therefore if the appellant has committed any act which amounts to desertion of her husband, it must have occurred since the passage of Chancellor O'Dunne's decree of February 15, 1945. All questions as to who was responsible for the separation of the parties before February 15, 1945 have been adjudicated in favor of the wife. The Chancellor in the instant case should not have gone behind the decree of Chancellor O'Dunne of February 15, 1945 and the decree of Chancellor Smith of January 11, 1944 to determine who was responsible for this separation up until February 15, 1945. To allow him to do so would in effect allow him to review the decrees of Chancellors Smith and O'Dunne and this cannot be done. Kruse v. Kruse, 183 Md. 369, 375, 37 A.2d 898.

In the case of Wise v. Wise, 159 Md. 596, 152 A. 230, the wife sued her husband for separate maintenance charging brutality and cruelty. The husband denied those charges and filed a cross-bill alleging that his wife had abandoned him and praying for a divorce a mensa et thoro. The Chancellor dismissed the cross-bill of the husband and required him to pay weekly alimony to his wife. Later the husband sued the wife for a divorce a mensa et thoro upon allegations that he had regularly made the payments directed in the prior decree, that she had abandoned him and refused to consider overtures made by him since the former decree to effect a reconciliation and reunion, and that her attitude constituted a final and deliberate desertion and abandonment entitling him to a divorce a mensa et thoro. The Chancellor, after hearing the case, granted the husband a partial divorce. This Court, in reversing the decree and dismissing the husband's bill, pointed out that the decree in the former case for separate maintenance could have been rendered only upon evidence sufficient to sustain her right to partial divorce if that measure of relief had been requested. Outlaw v. Outlaw, 118 Md. 498, 84 A. 383; Polley v. Polley, 128 Md. 60, 63, 97 A. 526; Wilson v. Wilson, 152 Md. 632, 137 A. 354. This Court in holding that the testimony was insufficient to prove that the husband's overtures to the wife were made and refused under such circumstances as to place her in the position of a deserting spouse, notwithstanding the previous adjudication in her favor on the issue of abandonment and cruelty, said, 159 Md. at pages 598 and 599, 152 A. at page 231: 'The testimony at the former trial was not reproduced in the present case. It may have proved conditions which justify the appellant's unwillingness to resume the marital association. There should be no presumptions against her upon that subject in the absence of evidence tending to qualify the significance of the judicially ascertained act that her husband's conduct was responsible for the separation. The determination of the question as to whether the appellant was wrong in her refusal to live again with the appellee depends on the kind and degree of mistreatment to which she was previously subjected. It was incumbent upon him to prove that the causes and circumstances of the separation were not such as to prevent his wife, with due regard to her safety, comfort and self-respect, from accepting his proposal for a reunion.' In other words, the testimony in the former case could not subtract from the decree in her favor, which could have been passed only if the wife had proven desertion on the part of the husband in the former case. Although in the instant case the testimony in the two former cases were offered in evidence and are in the record, as in the case of Wise v. Wise, supra, the testimony in the cases helf before Chancellors Smith and O'Dunne could not subtract from the fact that the decrees in those cases established that the husband was responsible for the separation up until Chancellor O'Dunne's decree of February 15,...