Ashman v. Ashman

Collins, J., delivered the opinion of the Court. This is an appeal from an order sustaining a demurrer to part of a petition filed by the appellant. ⁴⁴⁸ On September 14, 1948, Olga E. Ashman, the appellee in this case, filed a bill of complaint in Circuit Court No. 2 of Baltimore City, against her husband, Louis S. Ashman, the appellant here, for permanent alimony and counsel fees on the ground that he had deserted and abandoned her without just cause. In that case an answer was filed by her husband denying the desertion and in which he stated among other things “that he admits taking some of his clothes to the Guilford home of Chaplain (Colonel) and Mrs. Harry D. Southard on September 8, 1948—in pursuance of the mutual separation agreement of the parties on that day — as recited in his Special Delivery letters of September 9th and 14th, 1948, to the Plaintiff — * * *.” The chancellor on February 17, 1949, granted Mrs. Ashman permanent alimony of $50.00 per week and counsel fee. From that decree Mr. Ashman appealed here and this Court affirmed the decree of the chancellor in an opinion in Ashman v. Ashman, 194 Md. 565 , 72 A. 2d 250 , decided March 8th, 1950.

On April 30, 1952, appellant filed in the previous case a petition in which he alleged for the purposes of this case the following. He set out the finding of this Court in the former case. He further alleged: “3 — That subsequent to their aforesaid separation of September 9, 1948, and for at least three consecutive years prior to the filing of this Petition — [April 30, 1952,] the said Olga E. Ashman and Louis S. Ashman (this Petitioner) have voluntarily lived separate and apart, without any cohabitation, and their separation is beyond any reasonable expectation of reconciliation.” In the petition now before us he set out his then present financial and physical condition. He prayed that the aforementioned permanent alimony decree be terminated and annulled; that he be granted a divorce a vinculo matrimonii from the said Olga E. Ashman with reasonable Permanent Alimony to her; that in any event the above mentioned alimony of $50.00 per week to the ⁴⁴⁹ said Olga E. Ashman be reduced to a reasonable weekly sum; and for other and further relief.

Olga E. Ashman demurred to those parts of the petition which requested that the above mentioned permanent alimony decree of February 17, 1949, in her favor be terminated and annulled, and the petitioner be granted a divorce a vinculo matrimonii from her. General Equity Rule 18. From an order sustaining the demurrer the appellant appeals. Of course, a separation may be involuntary when it first occurs and later may become voluntary.

The word voluntary of course “connotes an agreement”. France v. Safe Deposit and Trust Company, 176 Md. 306, 326 , 4 A. 2d 717, 726 . Hahn v. Hahn, 192 Md. 561, 566, 567 , 64 A. 2d 739 , and cases there cited. Under the provisions of Code, 1951, Article 16, Section 33, the court may decree a divorce a vinculo matrimonii among other grounds “when the husband and wife shall have voluntarily lived separate and apart, without any cohabitation, for three consecutive years prior to the filing of the bill of complaint, and such separation is beyond any reasonable expectation of reconciliation.” As the petition in the instant case was filed on April 30, 1952, the alleged agreement, if one was made, to be effective in the instant case, must have been made prior to April 30, 1949.

In fact the petition now before us alleges that subsequent to September 9, 1948, and for at least three consecutive years prior to the filing of the petition on April 30, 1952, that the voluntary separation occurred. In his answer in the former case he alleged a mutual separation agreement of September 8, 1948. We said in the former case, 194 Md. at page 570 , 72 A. 2d at page 252 : “His special delivery letter of September 9th in which he advises her that he is residing with friends in Guilford, until he settles for the property on Cathedral Street or until she advises him that she intends to join him at the Cathedral Street home, seems to absolutely negative any separation agreement.” Therefore, it is clear from the allegations of the part of the petition here before us, ⁴⁵⁰ that, if there was a voluntary separation agreement as alleged, it was made between the dates of September 9, 1948, and April 30, 1949. In the former case the bill of complaint was filed on September 14, 1948, the decree of the chancellor was signed on February 17, 1949, which was affirmed by this Court on March 8, 1950.

All questions as to who was responsible for the separation of the