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KATHERINE S. HOFFHINES

V.
ARTHUR R. HOFFHINES, Appt.
Maryland Court of Appeals — July 22, 1924.

(- Md. - 126 Atl. 112.) Divorce and separation, $ 42 — duty of wife to live with husband's parents.

1. A wife is not bound to make her home with her husband's parents, where he is able to provide a separate one and the experiment of living with the parents has proved unsatisfactory, while his conduct is such as to indicate that his insistence on her so doing is to cause her to leave him.

[See note on this question beginning on page 338.] Divorce and separation, & 87 — when cause, to treat his wife in such a manwife entitled to alimony.

ner as to compel her to leave him. 2. To entitle a wife to a decree of [See 9 R. C. L. 366; 2 R. C. L. Supp. permanent alimony, such facts must 787; 4 R. C. L. Supp. 603.] be alleged and proved as would en- Domicil, § 8 right of husband to title her to a decree of divorce either select domicil. a vinculo matrimonii or a mensa et 4. A husband has the right to deterthoro.

mine the domicil of himself and fam[See 1 R. C. L. 936.]

ily, and his wife is compelled to accept Divorce and separation, § 41 - what as her domicil the place selected and is abandonment by husband.

maintained by the husband. 3. It is abandonment and desertion [See 9 R. C. L. 365; 2 R. C. L. Supp. by the husband for him, without just 786.]

APPEAL by defendant from a decree of the Circuit Court No. 2 of Baltimore City (Bond, J.) dismissing his cross bill and sustaining plaintiff's bill for permanent alimony, counsel fees, and costs. Affirmed.

The facts are stated in the opinion of the court.

Mr. George W. Cameron, for appel- er than to encourage divorce proceedlant:

ings. No evidence in this case is legally Harrison v. Harrison, 117 Md. 612, sufficient to have granted plaintiff a 84 Atl. 57. divorce a mensa et thoro, or a vinculo, The causes must be grave and and in this state that is the test, where weighty, and such as show an absothe relief prayed is permanent ali- lute impossibility that the duties of mony.

the married life can be discharged. Outlaw v. Outlaw, 122 Md. 695, 91 Childs v. Childs, 49 Md. 514. Atl. 1067; Outlaw v. Outlaw, 118 Md. Messrs. Lee I. Hecht and Webster C. 503, 84 Atl. 393; Polley v. Polley, 128 Tall, for appellee: Md. 62, 97 Atl. 526; Marshall v. The conduct of the husband may at Marshall, 122 Md. 694, 91 Atl. 1067; times be such as to compel the wife to Theiss v. Theiss, 124 Md. 298, 92 Atl. leave. 922; Twigg v. Twigg, 107 Md. 681, 69 Kott v. Kott, 135 Md. 696, 111 Atl. Atl. 517; Bounds v. Bounds, 135 Md. 240. 224, 108 Atl. 870.

Every wife is entitled to a home corA court should be careful not un- responding with the circumstances necessarily to widen a breach between and condition of her husband, over husband and wife by its orders and which she shall be permitted to predecrees.

side as mistress; and she does not forMcCaddin v. McCaddin, 116 Md. 571, feit her right to maintenance by re82 Atl. 554.

fusing to live in the home with, and It is the long-settled policy of the under the control of, her husband's courts of this state to discourage rath- mother.

(- Md. 126 Atl. 112.) Brewer V. Brewer, 79 Neb. 726, 13 plaint by denying its allegations as L.R.A.(N.S.) 222, 113 N. W. 161; to desertion and abandonment, and Shinn v. Shinn, 51 N. J. Eq. 78, 24 Atl. on the same day, August 20, 1923, 1022; Wright v. Wright, | N. J. Eq. filed his cross bill, in which the cause 43 Atl. 447; Marshak v. Marshak,

of complaint is stated to be that the 115 Ark. 51, L.R.A.1915E, 161, 170 S.

appellee, without just cause, reason, W. 567, Ann. Cas. 1916E, 206; Hall v.

or provocation therefor, abandoned Hall, 69 W. Va. 175, 34 L.R.A.(N.S.)

and deserted him; and the prayer of 758, 71 S. E. 103; Albee v. Albee, 141 III. 550, 31 N. E. 153; Powell v. Powell,

the cross bill is for a decree of di29 Vt. 148.

vorce a mensa et thoro on that It is the duty of a husband to pro

ground. By her answer the appellee vide a home for his wife separate from

denied the material averments of that of his relatives, and the conse- the cross bill, and asserted that quential privilege of the wife to re- the conduct of the appellant was the fuse to live at the home of her hus- cause of their separation and their band's parents.

ceasing to live together. Young v. Young, 136 Md. 84, 110

Testimony was taken on behalf of Atl. 207; Taylor v. Taylor, 112 Md.

the parties in support of their re666, 77 Atl. 133.

spective contentions, in open court. The inherent affirmative elements

On November 2, 1923, the chancellor of abandonment as a matrimonial defense are two-the cohabitation end

passed the following decree: ed, and the defending party's intent

“Decree. to desert.

"This cause standing for hearing 1 Bishop, Marr. Div. & Sep. § 1672;

and having been submitted, the Muller v. Muller, 125 Md. 72, 93 Atl.

counsel for the parties were heard, 404.

and the proceedings read and conDigges, J., delivered the opinion sidered: of the court:

“It is thereupon, this 2d day of The appellant and appellee in this November, 1923, by the circuit court case are husband and wife. They No. 2 of Baltimore city, adjudged, were married September 23, 1922, ordered, and decreed that the bill in the city of Baltimore. After the of complaint of Katherine S. Hoffmarriage they went to live with the hines, for alimony, is sustained, and husband's parents at 109 Beechwood that the defendant, Arthur R. Hoffavenue, Catonsville, Maryland, and hines, shall pay to the complainant, remained there for about two Katherine S. Hoffhines, as alimonths, until the latter part of No- mony, the sum of forty dollars vember, 1922. On November 28, ($40) for the period from October 1922, they moved to and occupied a 3, 1923, to November 3, 1923, and small, three-room apartment at No. the further sum of seven dollars 811 North Charles Street, Balti- ($7) per week beginning November more, Maryland, said apartment 3, 1923, and until the further order having been leased for four months. of this court. On April 5, 1923, the appellee left "And it is further adjudged, orthe Charles street apartment and dered, and decreed that the cross went to live at her mother's home, bill of Arthur R. Hoffhines v. KathNo. 3118 Baker street, Baltimore, erine S. Hoffhines, for a divorce a and since that time they have not mensa et thoro, be and the same is lived together as man and wife. hereby dismissed.

On August 2, 1923, the appellee “And it is further adjudged, orfiled in circuit court No. 2 of Balti- dered, and decreed that the defendmore city her bill of complaint ant, Arthur R. Hoffhines, shall pay against her husband, alleging aban- to the complainant, Katherine S. donment and desertion, and praying Hoffhines, the sum of twenty-five for alimony, both pendente lite and dollars ($25) as a counsel fee for permanent, counsel fees, and costs. services of counsel in defending the Appellant answered the bill of com- proceedings in this court on the

--

when wife en-
titled to ali-
mony.

cross bill filed therein by the said the understanding apparently being defendant.

that they would try this arrange“And it is further adjudged, or- ment, and, if found satisfactory, dered, and decreed that the defend- they would remain, and, if not, they ant, Arthur R. Hoffhines, shall pay would secure a home for themselves the court costs in this proceeding." at some place in the city of BaltiFrom this decree the husband,

more; that almost from the beginArthur R. Hoffhines, has appealed.

ning of their residence with the To entitle a wife to a decree of

husband's family there was evident permanent alimony, such facts must friction, the wife telling her husbe alleged and proved as would en

band that, while they were supposed title her to a decree

to be boarding at his parents' home, Divorce and separationof divorce, either a

she was in fact compelled to help vinculo matrimonii

with all the work of the household,

including the washing and ironing; or a mensa et thoro. Wallingsford v.

that she could do her own work, but Wallingsford, 6 Harr. & J. 485;

did not feel that she should have to Dunnock v. Dunnock, 3 Md. Ch. 146;

assist in the work of the family; Outlaw v. Outlaw, 118 Md. 503, 84

that she had no freedom of action, Atl 383; Polley v. Polley, 128 Md.

could not go anywhere, but had to 62, 97 Atl. 526.

do just as his people said ; that her In this case the alleged cause for

husband agreed it would be better divorce is the abandonment and de

for them both to move in town and sertion of the appellee by her hus

live by themselves; that they moved band, as stated her bill of com

into the Charles street apartment plaint. It is admitted that the phys

on November 28, 1922, they both ical separation was the act of the

having decided upon that location; wife, but it is contended that the

that the lease of the apartment was conduct of the husband toward the

for a period of four months, and wife, and his treatment of her, con

that the rent was $32.50 per month; stituted legal justification for the

that the husband was earning $125 appellee ceasing to live with him,

per month, from the date of their and therefore the acts of legal aban- marriage to the time of separation, donment and desertion were those and $25 each month was allowed to of the appellant.

be retained by the company by It requires no citation of author

which he was employed, in accordity to support the legal proposition

ance with a stock-purchasing plan that it is abandonment and desertion which that company then had with

by the husband, for its employees; that during the pe-what is abandonment by him, without just riod they lived together, in addition husband.

cause, to treat his to the cooking and general housewife in such a manner as to compel

work incident to the family, the wife her to leave him. Harding v. Hard- had temporary employment, and ing, 22 Md. 337; Levering v. Lever

from November, 1922, to April, ing, 16 Md. 213; Taylor v. Taylor, 1923, she earned the sum of $300, 108 Md. 129, 69 Atl. 632; Polley v. $200 of which was expended in the Polley, supra.

maintenance of the home; that the The evidence in this case, while in

husband had a life insurance policy some instances conflicting, is in the at the time of the marriage, by the main uncontradicted, and shows terms of which his mother was the that the parties had known each beneficiary; that sometime in Deother for several years before their cember, 1922, he was requested by marriage, both being employed by his wife, the appellee, to change this the Standard Oil Company at its policy so as to make her the beneBaltimore branch; that immediately ficiary in place of his mother, which after the marriage they had lived at request was refused; that shortly the home of the husband's parents, before the expiration of the lease on (- Md. 126 Atl. 112.) the Charles street apartment the ap- objectionable when we lived there pellant told his wife that he was not when first married, and I am sure going to renew the lease, because he that conditions have not improved. could not afford it, and that they If you do not provide a home for would have to return to his moth- me as you should, then you must, as er's to live, and told the landlady my husband, provide for me and that he had given up the apartment, send me an allowance each and and that she could show any pro

every week. spective tenants to the apartment I expect to hear from you at for the purpose of renting it to other once, as to just what you propose parties; that, during the period the doing either a home where we can appellee was employed, her husband live as we should, as man and wife, furnished very little for the support or assistance in the way of support of the family; that the appellant re- to me, as your wife. peatedly told his wife that they “Your wife, would have to return to his mother's “Katherine Sanford Hoffhines.” to live, and this conversation on one occasion occurred in the presence of

On April 20, 1923, the appellant the appellee's mother; that the ap

replied to this letter as follows: pellee, in reply, told her husband

“109 Beechwood Ave., that she was perfectly willing to live

“Catonsville, Md., in one room by themselves, but

“April 20, 1923. would not return to his parents' “Dear Katherine:home.

"I am in receipt of your letter of With these conditions existing the 19th inst., and have carefully the appellee on April 5, 1923, while

noted your proposition contained her husband was at the office of his therein, i. e., your willingness to live employer, left the Charles street

any place, no matter how humble. apartment, taking with her the ar

“It is utterly impossible, at the ticles of furniture belonging to her present time, for me to provide any self, and removed to the home of her place other than at my home. My mother on Baker street; that, upon mother joins me in this invitation. the husband's return to the apart- “Yours very truly, ment on the evening of April 5,

"A. R. Hoffhines.” 1923, and finding his wife away, he made no effort to inquire as to her

This letter of the husband was whereabouts, but went to the home immediately replied to by the apof his parents and remained there pellee as follows: after that date, never making any “3118 Baker St., Balto., Md., effort to see his wife or induce her

“April 21, 1923. to return; that, on April 19, 1923, “Dear Arthur:the appellee wrote her husband the

Your letter of the 20th inst. in following letter:

reply to mine of the 19th received. “3118 Baker St., Balto., Md., You should have known before you

“April 19, 1923. asked me to marry you whether or "Dear Arthur:

not you could support me. "As I repeatedly stated to you, I "As I stated in my letter I will not was and am perfectly willing to live live at your mother's home, because with you as we should, as man and that is most objectionable, and is not wife, provided you provide a suit- our home. As you continue to fail able place for me to live and trust to provide a home for me, I underme properly as your wife.

stand that you must provide me "I am willing to live with you any with the necessities of life as your place that you provide, no matter wife, and I shall expect you to send how humble it be, but positively will me a sufficient amount to live and not live with you at the home of clothe myself on at once, and reguyour parents, as you know that was larly each week hereafter.

“Should I not have a favorable re- and place when these propositions ply to this letter, then I will know were made by his wife, he was unthat I must consult legal advice. able to do so, further than claiming Your wife,

on one occasion his wife's mother “Katherine Sanford Hoffhines." was present. This testimony was The husband's reply to this letter

emphatically contradicted by the ap

pellee and her mother, and we are was as follows:

convinced that the testimony of the "April 23, 1923. appellant in this regard is not re“Dear Katherine:

liable. Your letter of the 21st received

We have set out at some length and in reply I wish to say again

the evidence in this case, as disthat a home with my mother is the

closed by a careful examination of very best that I am able to provide. the record, for the reason that it "Yours very truly,

presents for the determination of "A. R. Hoffhines." this court for the first time the di

rect question of whether a husIn addition to this correspond- band's failure to provide a home for ence, the testimony shows that, after his wife other than with his parthe separation of the parties, they ents, he being financially and othermet each other on Lexington street, wise able to provide a different place

a the mother of the appellee being of abode, is sufficient cause to enpresent on this occasion; that at title a wife to refuse to accompany this meeting the appellant refused her husband to the home of his to speak to the appellee, but told her

parents, and justify her in leaving mother that he and his wife would under such conditions. have to go to his parents to live; Stating the proposition in a difthat the wife then said in the pres- ferent form: When a husband is ence of her mother that she would financially able to do so, does the live in one room with him, but would law impose upon him the obligation not live with his people, the hus- of providing an independent home band's reply being that his parents' for himself and wife, and does his home was the place he would pro- failure so to do justify the wife in vide; that it was up to him to pro- refusing to live with him in the vide a home, and that his wife had home of his parents ? no say.

The general rule, supported by The evidence fails to show any the great weight of authority, is friction occasioned by the mother of that the husband has the right to the appellee, but, on the contrary, determine the domiindicates that the appellant and his

cil of himself and right of hasmother-in-law were on the most family, and that the band to select

. friendly terms during the time in wife is compelled to which he and his wife lived togeth- accept as her domicil the place so er. This is strongly indicated by selected and maintained by her husthe appellant's own testimony.

band. This right is correlative with There is testimony by the appel

the husband's duty to provide for lant to the effect that the appellee

the support and maintenance of his had endeavored to induce him to wife and family, and if the wife releave her and give her money for

fuses to accompany her husband, support, and that under such condi- and live with him in the home protions she would be perfectly willing vided by him, without sufficient for him to leave, but that he would cause, hers is an act of desertion. not agree to this, unless his wife As stated in 19 C. J. 60: “When would sign a contract relieving him a husband has established a matrifrom the payment of alimony. On monial domicil, and makes a percross-examination, when pressed by emptory and unconditional demand appellee's counsel to specify the time upon the wife to live with him

Domicil

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