Bowersock v. Bowersock

Corrins, J., delivered the opinion of the Court. This is an appeal from a decree dismissing the amended bill of complaint of Robert W. Bowersock, appellant, for a divorce a vinculo matrimonii from his wife, Dorothy Barrett Bowersock, appellee. These parties were married on May 20, 1938, in Philadelphia, Pennsylvania. They lived together until 1940.

During those two years the appellee left her husband several times and returned. She finally left him in the spring of 1940. Three children were born as a result of that marriage, a daughter, Lorraine, eighteen, a daughter, Carolyn, seventeen, and a son, Robert, sixteen, at the time of the trial below on December 16, 1955. The husband, who has been a resident of Maryland all his life, testified before an examiner that, after his wife left him in 1940, he tried to persuade her to return to him but she would not do so.

On March 1, 1942, she was committed to Embreeville State Hospital, Embreeville, Pennsylvania, a State mental institution. She was taken there by her father and sister. Three or four months previous to her entry there, she had terrible crying spells and wanted to ⁴³¹ die. She has been in that institution since that time.

The appellant and his son live with his aunt, Mrs. Leona Cox, in Anne Arundel County, Maryland. The two girls have been living with his wife’s mother for many years. His wife, previous to her marriage to him, was married at the age of thirteen years, and was divorced from her first husband. On December 13, 1955, the appellant filed an amended bill of complaint in which he alleged the aforesaid marriage, the birth of the aforesaid children, and his residence in the State of Maryland for more than two years.

He further alleged that the appellee without just cause or reason abandoned him, and that said abandonment had continued uninterruptedly for more than eighteen months prior to the filing of the bill of complaint. He further alleged that his wife, after said desertion, became permanently and incurably insane without hope of recovery, and as a result had been confined in the aforesaid mental institution since March 1, 3942. He prayed a divorce a vinculo matrimonii, and the care and custody of his minor children. Mrs. Leona Cox, the aunt of the appellant, testified before the examiner that her nephew and his son lived with her.

She further stated that during the marriage he had treated his wife well and she left him time and time again. The desertion had continued uninterruptedly since 1940. Her nephew has raised his sixteen year old son. Harrison J. Gaston testified before the examiner that he had known the parties to this suit for approximately twenty-six years.

He was their mutual friend. She was interested in her first husband. The appellant gave his wife no just cause or reason to leave him. The appellant was a devoted husband and gave his wife everything she wanted.

He has always acted in a proper manner. Dr. Eleanore R. Wright testified in a deposition that she was a psychiatrist, a graduate of a medical school and clinical director of the Embreeville State Hospital. She came to that institution on June 27, 1955, and met the appellee in July of that year. She was familiar with the appellee’s case history.

Mrs. Bowersock was admitted to that institution on March 1, 1942, having been mentally depressed for three months. She had neglected herself and her children. She had had intervals of mental confusion and had expressed the desire ⁴³² to die. She had lost forty pounds in the year before her admission to that institution, and had been there since March 1, 1942.

She testified that the appellee is still mentally ill. Her thought processes are disassociated. She is out of contact with reality. When asked what was her prognosis of Mrs. Bowersock’s condition, she replied: “Our term for the prognosis is guarded to poor.

This indicates that we cannot be optimistic about her response.” She had had seventy electric convulsive treatments and also, on June 4, 1952, a transorbital leucotomy, which is brain surgery. Recently she had been given Thorazine, which is a new drug being used in mental illnesses. After this brain surgery there was no change in her behavior except that she was “more quiet”. She further stated that at the present time appellee was not able to distinguish between right and wrong.

On cross-examination she stated that after each treatment of electric shock, she showed some improvement and also there had been some improvement in her condition since she had been taking Thorazine. Her present condition was better than it was at the time she was admitted to the hospital. She could not say when she would be released as cured. When asked what were her chances of recovery, she replied: “I could only give you a very vague approximation and I would say somewhere between 30 and 50 per cent.” When asked whether she could say with any degree of certainty “when she would recover within the limits of that 30 to 50 per cent chance”, she replied: “No, sir.

I might clarify that by saying that we have had patients in the hospital for thirty years who suddenly recovered.” She could not say that appellee’s condition was permanently incurable nor could she say that it was not permanently incurable. The appellee was at the institution on an indefinite commitment. Dr. Arthur O. Hecker testified in a deposition that he was a physician specializing in psychiatry at the Embreeville State Hospital. He had reviewed Mrs. Bowersock’s case history at the time of her commitment on March 1, 1942.

She was mentally ill with schizophrenic reaction. When asked whether her condition was permanent or temporary, he replied : “Frankly, I would not determine it to be either except to this ⁴³³ extent. It was certainly not temporary, having existed at least since March 1942 to the present time. I cannot give a medical opinion that any illness is permanent.

However, in view of the prolonged period of symptoms, the chances of recovery are lessened to the chronicity.” Her mental judgment is still quite impaired. When asked what was his prognosis of her condition, he replied: “Ordinarily the prognosis in schizophrenia of this duration and the treatment the patient has received is poor. She has recently responded somewhat to Thorazine. Nevertheless, experience would indicate that the prognosis remains poor.” As a result of the aforesaid testimony the chancellor found that it did not meet the requirements of Code, 1951, Article 16, Section 35, and the facts would not entitle the appellant to a divorce on the ground of abandonment.

Accordingly he dismissed the appellant’s amended bill of complaint and allowed a counsel fee of $40.00 to the counsel for appellee. From that decree the appellant appeals. Code, 1951, Article 16, Section 35, supra, Chapter 497 of the Acts of 1941, provides in part: “A divorce a vinculo matrimonii may be granted when either husband or wife has become permanently and incurably insane, provided that no divorce shall be granted under this section unless such permanently incurable insane person shall have been confined in an insane asylum, hospital or other similar institution for a period of not less than three years prior to the filing of the Bill of Complaint, nor unless the Court shall find from the testimony of two or more physicians competent in psychiatry that such insanity is permanently incurable with no hope of recovery, and provided further, that no such suit shall be maintained unless one of the parties is an actual resident of this State, and shall have resided therein for at least two years immediately prior to the institution of the proceedings. * * * Upon the return of process duly served, or upon proof of due publication, as the case may be, the Court shall require the Committee to appear and answer for said defendant, if one has been so appointed, and if not, the Court shall appoint a Guardian ad Ritem to appear and answer for said defendant.” It also provides that where the plaintiff is the husband, the ⁴³⁴ court may require him to pay alimony, support and maintenance for the benefit of the wife and also that the court may modify or revoke any order relating to the custody of infant children and their support. All court costs, including the compensation of the defendant’s attorney, shall be paid as the court shall direct.

Upon the petition of the husband, who alleged that his wife had no legal guardian, George J. Crowley was appointed guardian ad litem under the provisions of Article 16, Section 35, supra, for Mrs. Bowersock, and Ridgely P. Melvin, Esquire, was appointed counsel for the guardian ad litem. Article 16, Section 35, supra, enacted in 1941, first came before this Court in the case of Dodrer v. Dodrer, 183 Md. 413 , 37 A. 2d 919 , decided June 13, 1944. In that case the question was whether the defendant had been confined in an insane asylum, hospital or other similar institution for a period of not less than three years prior to the filing of the bill of complaint. There, it was pointed out that the determination of causes for which divorces may be granted is a matter for the Legislature.

The policy underlying such determination, whether narrow or broad, restricted or liberal, was for legislative decision. After discussing the rules to be followed in statutory interpretation, and the requirement of confinement for three years, it was there said: “The other proviso is that the court must find from the testimony of two or more physicians competent in psychiatry that the insanity is permanently incurable. This does not mean that, if two psychiatrists testify to that effect, the court must make such a finding. The court makes its finding from all the facts before it, but this must include such testimony by two psychiatrists.

In the case before us we have this testimony.” The above quoted comment might be interpreted to mean that, unless two psychiatrists testify definitely that the insanity is permanently incurable, with no hope of recovery, the court could not so find. However, in the case of Roberts v. Roberts, 198 Md. 299 , 82 A. 2d 120 , where the question presented was also whether the wife had been confined for the period of not less than three years prior to the filing of the bill of complaint, this Court there said: “When the ⁴³⁵ Legislature added to the causes for divorce that of permanent and incurable insanity, it did not leave this question to be determined as other questions are determined, by general proof, but required certain specific facts to be shown. No divorce on such grounds could be granted unless the person claimed to be insane should first have been confined in an insane asylum, hospital or other similar institution for a period of not less than three years prior to the filing of the bill, and, second, not unless the court should find from the testimony of tzvo or more physicians competent in psychiatry that such insanity is permanently incurable, with no hope of recovery. We had this statute before us in the case of Dodrer v. Dodrer, 183 Md. 413 , 37 A. 2d 919 , and held that the confinement included the placing of a