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Sellman v. Sellman

Decided: July 13, 1964.

SELLMAN
v.
SELLMAN



Appeal from the Circuit Court No. 2 of Baltimore City (CARDIN, J.).

The cause was argued before Brune, C.J., and Hammond, Prescott and Horney, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.

Prescott

PRESCOTT, J., delivered the opinion of the Court.

The chancellor granted the appellee a limited divorce on the ground of desertion, permanent alimony and custody of, and support for, an infant child of the parties. At the same time, he dismissed appellant's cross-bill, which prayed for a limited divorce on the ground of desertion, and custody of the child.

The appellant claims that the chancellor committed error in seventeen rulings on evidence and seven other alleged assignments of error. However, the case may be determined by answering the following questions: (1) Was the chancellor clearly

in error in finding that the appellant deserted the appellee on, or about, July 10, 1962, and that, under the circumstances, the appellee should be awarded custody of the infant child; (2) Did the chancellor commit prejudicial error in holding an alleged "secret" conference at the bench; (3) Did the chancellor commit reversible error in denying appellant's motion for a mistrial; (4) Did the chancellor's rulings on the evidence constitute reversible error?

I

Since the record extract contains 309 pages, it will have to be scaled down considerably in stating the facts, if this opinion is to be of reasonable length. Although the testimony in most of its aspects is sharply in dispute, it is sufficient to support a finding of the following facts. The parties were married in Baltimore in 1936. Three daughters were born as a result thereof. The oldest is married and has her own family. The next in point of age was nineteen at the time of the trial below, was self-supporting, and was living with her mother. The youngest, Gwenda, was eight, and she was enrolled in a boarding school for girls.

After marriage, the conjugal relations of the parties were satisfactory until about nine years ago, when they began to deteriorate. The husband became interested in another woman. He told his wife that he was "very much" in love with this woman, but he loved her (his wife) more than the other woman. She forgave her husband for his relationship with this woman because she wanted to keep the family together and raise her children. However, the husband started on a course of conduct, which finally culminated in his locking her out of the house. The wife stated that when Gwenda was a baby, her husband, who had been drinking, came home, and, without provocation, shoved her and threw her on the bed. She retreated through the house from room to room, but he followed her. She finally wound up in the living room and was sitting in a chair, but he came in and upset the chair, knocking her to the floor. She took the child and left home. However, upon the request of her pastor and the entreaties of her husband, who promised to mend his ways, she returned to the home.

Things were better for a while; then he started "getting very nasty again." The wife testified that he threatened her, kicked and struck her, and threw things at her. He also called her vile and humiliating names. On one occasion, he took a gun and "fired it off" in the house. In 1961, he told her to get "the H. out of" his bedroom, and she did. On another occasion, she had been visiting her "people," and when they brought her home her husband would not open the door; so she was required to spend the night away from home. When she returned on the following morning, she gained entrance by letting Gwenda climb in a window. She testified that his attitude, manner and course of conduct caused her to fear for Gwenda's and her own safety.

On the evening of July 10, 1962, the appellee went to a neighbor's house across the street to call her married daughter on the telephone. The appellant came out into the street and yelled, "Stella Mae [the appellee], come over here and get your G.D. dishes done." Realizing that her husband usually left home each evening at about 7:00 p.m., she waited until he had driven off in his automobile before returning home. After seeing him leave, she returned and was washing dishes when the appellant came home. He went to the kitchen, and "he knocked me [the appellee] down so hard that my back struck the step stool and my arm and bruised it." After getting back onto her feet, ...


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