Campbell v. Campbell

Urner, J., delivered the opinion of the Court. The grounds for divorce a vinculo matrimonii in Maryland are prescribed by section 38 of article 16 of the Code of Public. General Laws. By chapter 396 of the Acts of 1937, that section was repealed and reenacted with an amendment which provided, as an additional ground for such a divorce, that it could be decreed: “When the husband and wife shall have voluntarily lived separate and apart, without any cohabitation, for five consecutive years prior to the filing of the bill of complaint, and such separation is beyond any reasonable expectation of reconciliation.” The appellee sued his wife for an absolute divorce under that provision.

In his bill of complaint he alleged that he and the defendant were married on November 25th, 1907, that they voluntarily separated on or about July 25th, 1925, and have continuously lived apart since that time. The absence of ²³² any reasonable expectation of reconciliation is also alleged. The defendant, by demurrer, questioned the constitutionality of the Act of 1937, and, by answer, denied that the separation of herself and husband was voluntary, and alleged that it resulted from his excessive violence and his threats when she remonstrated with him about his associations with another woman, because of which she declared her intention to sue him for a divorce and the woman for the alienation of his affections. It was then threatened by him, as the answer charged, that if she brought such suits he would sell their home, resign his position, and leave the state.

The answer further stated that, as the defendant was without means of support for herself and her infant son, she was forced by those threats of her husband to sign an agreement of separation, dated July 24th, 1925, which included a provision that no suit by either party “for alienation of affections or for any other grounds whatsoever” should be instituted. Reference was made in the defendant’s answer to a suit brought against her by the plaintiff on October 24th, 1928, for an absolute divorce on the ground of an involuntary separation for more than three years alleged to have been caused by her cruelty. In that suit the defendant’s answer denied the allegation of cruelty on her part, charged the plaintiff with brutality and adultery, and stated that she and her husband were living separately under the agreement of July 24th, 1925. The trial of the issues then presented by the pleadings resulted in a decree dismissing the suit, but the decree was not accompanied by an opinion stating the reasons for the court’s conclusion.

The subsequent Act of Assembly, authorizing decrees of absolute divorce on the ground of voluntary separation of the parties for five years, became effective on June 1st, 1937, and the husband’s second suit for divorce was brought on that day. In the former case his bill of complaint ignored the separation agreement, while the wife relied upon it in her answer. For the purposes of ²³³ the present suit, under the new Act of Assembly, the plaintiff depends upon the agreement as proof that the separation was voluntary. The defendant now contends that both the separation and the agreement were involuntary so far as she is concerned.

In this case the lower court decided that the Act of 1937 is constitutional and retrospective, and that the admittedly complete and continuous separation of the parties for more than five years was voluntary, and that the plaintiff was consequently entitled to a divorce a vinculo matrimonii. The principal appeal is from the decree giving effect to that decision. Another appeal by the defendant is from the order overruling her demurrer to the bill of complaint, and her third appeal is from an order refusing to require the plaintiff to pay for the services of the defendant’s solicitor in the Circuit Court and on appeal. The order, however, directed the plaintiff to pay the costs of the record for the appeal, and the plaintiff has appealed from that requirement.

The constitutionality of the Act of 1937 is disputed upon the theory that its title is defective. In our opinion that objection is not sustainable. The act is thus described in its title: “An Act to repeal and re-enact with amendments Section 38 of Article 16 of the Annotated Code of Maryland (1924 Edition), title ‘Chancery,’ sub-title ‘Divorce,’ providing that divorce may be granted after separation under certain conditions.” This is a sufficient compliance with section 29 of article 3 of the Maryland Constitution, which provides that: “Every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title.” It has been held repeatedly by this court that a title is adequate which describes the act by reference to the article and section of the Code in which it is incorporated. Mylander v. Connor, 172 Md. 329 , 191 A. 430 ; Bevard v. Baughman, 167 Md. 55 , 173 A. 40 ; Baltimore v. Fuget, 164 Md. 335 , 165 A. 618 ; Dean v. Slacum, 149 Md. 578 , 132 A. 73 ; Todd v. Frostburg, 141 Md. 693 , 119 A. 696 ; Worcester County v. School Commissioners, 113 Md. 305, 306 , 77 ²³⁴ A. 605.

The title here in question distinctly indicates that separation as a ground of divorce is the subject of the enactment. The amendatory provisions of the act are germane to that subject. It is not essential that the title should summarize the contents of the act. Toomey v. Shipley, 172 Md. 463 , 192 A. 288 ; Home for Incurables v. Bruff, 160 Md. 156 , 153 A. 403 ; Dinneen v. Rider, 152 Md. 343 , 136 A. 754 ; Dahler v. Washington Suburban Sanitary Commission, 133 Md. 644 , 106 A. 10 ; Ruehl v. State, 130 Md. 188 , 100 A. 75 ; Thrift v. Laird, 125 Md. 55 , 93 A. 449 ; Painter v. Mattfeldt, 119 Md. 466 , 87 A. 413 .

The brief of the appellant does not argue that the act of 1937 applies only to five year voluntary separations beginning after it become operative, nor that it is invalid because of its retrospective application. But there is an argument in the appellee’s brief against such possible contentions. It seems clear to us that the act is applicable by its terms to suits brought after June 1st, 1937, for a divorce on the new ground defined by the act, if the specified conditions for invoking it then exist. The separation must have been voluntary, without any cohabitation or reasonable hope of reconciliation, and have continued “for five consecutive years prior to the filing of the bill of complaint.” There is no evidence in the act of an intention that the whole of the five year period of separation must be subsequent to its effective date.

If, when the bill of complaint is filed, the parties “shall have voluntarily lived separate and apart” for the designated period, and the separation has been complete ;and is probably permanent, the court is authorized by the act to decree an absolute divorce. In Cole v. Cole, 27 Wis. 531 , the court had under consideration a Wisconsin statute, Laws 1866, ch. 37, which provided that whenever the husband and wife “shall have voluntarily lived entirely separate for the space of five years next preceding application for divorce, the same may be granted on the petition of either party,” and it was said in the opinion: “There is nothing in the Ian ²³⁵ guage of this statute which would seem to require that the five years’ separation must have occurred after the law took effect, and we must presume that it was intended to apply to present separations as well as future ones.” A construction of the Act of 1937 as purporting to authorize decrees of divorce for pre-existing and continuing separations does not affect its validity. It was an exercise of the ample power of the Legislature to determine the grounds upon which marriages may be judicially dissolved. The provisions of the act are concerned with remedies and not with property rights.

In Tipping v. Tipping, 65 App. D. C. 222, 82 Fed. (2nd) 828, the Court of Appeals of the District of Columbia said: “It has been held by the highest authority that marriage is an institution of society, creating a status which may be regulated and controlled by public law; that legislation affecting the institution or annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts, or against ex post facto laws. Maynard v. Hill, 125 U. S. 190 , 8 S. Ct. 723 , 31 L. Ed. 654 . In the exercise of such public authority statutes may be enacted applicable equally to past and future grounds for divorce. It is said 'n 1 Bishop on Marriage, Divorce and Separation, sec. 1480: ‘Divorce statutes concern the good order of society.

If, contemplating the interest involved as public, it is for the public order and profit that marriage be dissoluble after the transpiring of a particular delictum it can make no difference what was the date of the delinquency, or whether before or after the statute was enacted. Hence, when the legislative intent does not directly appear in the statutory words, they should be applied equally to past and future transactions.’ ” In Maynard v. Hill, 125 U. S. 190 , 8 S. Ct. 723, 729 , 31 L. Ed. 654 , cited in the opinion from which we have just quoted, the Supreme Court repeated the following statement by Chief Justice Marshall, in the Dartmouth College Case, 17 U. S. 518 , 4 Wheat. 518, 519 , 4 L. Ed. 629 : “The provision of the Constitution” (as to impair ²³⁶ ment of contracts by state legislation) ‘‘never has been understood to embrace other contracts than those which respect property or some object of value, and confer rights which may be asserted !in a court of justice. It never has been understood to restrict the general right of the legislature to legislate on the subject of divorces.” The validity of the Act of 1937 is further supported by the decisions in Elliott v. Elliott, 38 Md. 357, 359 ; Harrison v. State, 22 Md. 468 , and Grinder & Baugher v. Nelson, 9 Gill 299 . The important question of fact in this case is whether the separation of the parties has been voluntary.

Unless it should be so characterized, the plaintiff is not entitled to a divorce under the Act of 1937, which the suit invokes. While the separation had continued for a much longer period than five years, the allegation that it was voluntary is disputed in the answer and in the evidence. When the agreement of separation was signed on July 24th, 1925, the marital relations of the parties had been suspended for several weeks, although the husband’s removal from the home did not occur until that date. According to the testimony of the wife and her son, then fourteen years old, she was the victim of a violent attack by her husband, upon