Two appeals in one record from the Circuit Court of Baltimore City; Cardin, J.
Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.
A decree of the Circuit Court of Baltimore City dated June 4, 1963, awarded Harry C. Grossman an absolute divorce and
his wife Mildred L. Grossman the sum of $1500 and counsel fee of $500. Mrs. Grossman appeals from that portion of the decree which grants the divorce and the sum of $1500. A cross-appeal was filed on behalf of Mr. Grossman from that portion of the decree which required him to pay $1500 plus counsel fee and from a subsequent order requiring payment of the counsel fee in accordance with the prior decree.
The parties, a widow and widower, were married September 28, 1957, and Mrs. Grossman, together with a son (who soon thereafter married and moved) and a daughter then ten years old, moved into the established home of Mr. Grossman in Baltimore. The union proved unsuccessful, and both parties testified that many arguments ensued between them. One subject in particular which caused the strife concerned the care and treatment of the daughter of Mrs. Grossman by a previous marriage. The husband testified that he merely attempted to establish living habits which he felt reasonable for a child of ten. The wife's testimony was to the effect that she thought the standards he had established too strict and in fact unreasonable. Further testimony on this aspect of the rift was offered by Mr. Grossman's grown daughter in his behalf and by Mrs. Grossman's sister in her behalf, based upon observations these witnesses had made from many visits during the year the parties lived under the same roof.
On November 6, 1958, with the aid and advice of competent counsel on both sides, an agreement was signed by both Grossmans which provided generally that in consideration of receiving $20 per week for maintenance and support until she either remarry or die, Mrs. Grossman released all of her marital rights in her husband's real and personal property. Immediately thereafter Mrs. Grossman moved out of the house and established separate residence.
Shortly after this, Mr. Grossman began visiting his estranged wife at her home, bringing to her the money due under the postnuptial contract. Quite often during these visits sexual intercourse would take place between the parties, but nearly always afterward the old disputes which had eventually led to the separation would again ensue. The couple did not, however, ever remain together any considerable length of time, although
on at least one occasion Mrs. Grossman admitted she took a ride with Mr. Grossman and his daughter to Pennsylvania, and on several occasions spent some time, but not overnight, in his home. The visits continued and payments were made by Mr. Grossman until about March of 1960 when, according to the appellant, she demanded that he either reconcile with her or stop visiting. The appellee claims that he had asked her to come back and live with him, but that she refused, saying according to him "as long as she's got a sucker like me and $20 a week, she wasn't worrying about living with me; she wouldn't live with the best man alive, and that is the last time I saw her." At any rate, the payments stopped, and the first phase of this litigation took place. That was when Mrs. Grossman sued her husband in the People's Court of Baltimore City and got a judgment for back payments due under the agreement, which judgment was subsequently paid. There were two other suits for accrued payments based upon the same agreement, but the record is silent as to when they were filed. At the oral argument we were informed a judgment was entered against the husband in each of them, but instead of satisfying these, he appealed. These cases were consolidated and with the consent of the parties were heard by Judge Cardin concurrently with this suit by Mr. Grossman for divorce, and the effect of the decree was to reverse those judgments.
The appellant first contends that the chancellor was in error in granting Mr. Grossman an absolute divorce, based upon a suit which alleged desertion by the wife after her refusal to reconcile in March 1960. Like so many contested divorce actions, the testimony was in considerable conflict with respect to who made the offer to reconcile. The appellee argues that his conduct after the separation clearly indicated he was desirous of having his wife and her daughter return to his home, citing the frequent visits and the sexual intercourse in support of his attitude. Mrs. Grossman, on the other hand, contends that he gave her no choice but to leave when he told her, concerning her daughter, to "either give her away or get out of the house," all of which he denied. She also contends that the lower court erroneously construed the fact of sexual intercourse as a condonation by her of her husband's misconduct, if it be that, of
ordering her from the home. The record before us contains only the decree of the chancellor unaccompanied by oral or written findings, or opinion, but there is sufficient testimony which the court could have accepted to show that the husband offered to reconcile ...