Carney v. Carney

Carter, J., delivered the opinion of the Court. On December 12, 1969 the appellant, Virginia C. Carney, filed suit against the appellee, Eugene D. Carney, in the Circuit Court for Montgomery County seeking a divorce a mensa on the grounds of cruelty and constructive desertion. On October 22, 1971 the wife filed a supplemental bill requesting a divorce a vinculo, alimony, ²⁴⁵ child custody and support on the alternative grounds of constructive desertion or voluntary separation. The husband answered both bills and denied all material allegations thereof.

The suit was heard before Judge John P. Moore who dismissed the supplemental bill for divorce and alimony, awarded custody of the children to the wife and required the husband to pay the sum of $200 a month for the support of each child. The Chancellor also required the husband to contribute $650 toward the cost of legal services rendered the wife in her suit for the custody and support of the children. The wife appeals from the decree. FACTS The evidence in support of the wife’s contentions consisted of her testimony and that of her friend, Mrs. Anna Brandborg.

The evidence of the husband consisted of his testimony. The testimony of both the husband and the wife was in substantial agreement concerning the circumstances surrounding their separation. Their testimony showed they were married in 1948 and lived together until February 18, 1970 when the wife left the home. There were two children born as a result of the marriage, namely Christine, age 13, and Michael, age 10.

For sometime prior to March 1969, differences had developed between the parties concerning the wife’s interest in biology, the out of doors and animals. She became much interested in these matters and the husband was not at all interested in them. He would not allow his wife to have pets in the home, much to her displeasure. In 1967 she became acquainted with Mr. and Mrs. Brandborg.

Mr. Brandborg was connected with the Wilderness Society which is a non-profit conservation organization dedicated to the preservation of wilderness areas. The husband believed that the Brandborgs were exerting a considerable influence upon his wife in stimulating her interest in wildlife and animals. This situation provoked numerous ar ²⁴⁶ guments between the parties including an argument over the wife’s desire to take a new job with the Wilderness Society and to have dogs in the house. The wife testified that on March 2, 1969, during the course of a heated argument on this subject, her husband told her that “my friends (Brandborgs) were not welcome in the house, and, as a matter of fact, I could leave, but until such time as I could arrange to get out he wanted me to move out of the bedroom.” At that time she did move out of the bedroom occupied by herself and her husband.

Thereafter she slept on the sofa in the living room until her departure from the home about a year later on February 18, 1970. There were no sexual relations between the parties following this incident although the husband requested the wife to return to their bedroom on several occasions but she refused. In the course of the discussions between them during the later part of 1969, the wife advised her husband that he had better get a lawyer concerning their marital problems because she had already engaged one. After the incident in March 1969 and prior to his wife’s departure, the husband told the wife that if their marriage was going to be terminated, she was the one who was going to have to do it.

He admitted that because of his religious beliefs, he was opposed to divorce. However, he testified at a pendente lite hearing: “My wife is certainly free to do whatever she wants to. But I can’t make myself do it [separate] on these grounds”. At the trial he explained this testimony by saying that it was intended as “an admission on my part that I couldn’t stop her”.

He testified he did not intend to approve his wife leaving their home. The wife testified that in her opinion her leaving on February 18, 1970 was agreeable to her husband. However, she did not disagree with her husband’s testimony concerning the above recited circumstances surrounding her departure. She further testified that prior to February 18, 1970, he was aware of her intended departure.

The wife admitted there was no physical harm done to her by her husband and that she was not fearful any such harm would be done to her. ²⁴⁷ At the time of the trial the husband’s financial statement showed a gross monthly income of $1,700 derived principally from his salary as a public school teacher. His statement showed monthly deductions of taxes, insurance premiums, social security, etc. of $600 leaving a net monthly income of $1,100. The statement also showed monthly expenses consisting of payments on the home jointly owned by the parties, food, clothing, utilities, car expense, etc. amounting to $765.95 leaving a net monthly balance after expenses of $334.05. This sum did not make allowance for child support payments then in effect in the amount of $325 per month.

The wife was employed by the Wilderness Society as operations manager at an annual salary of $13,000. Her income consisted of her salary plus a small unspecified monthly dividend from her half interest in 150 shares of AT&T stock. The jointly owned assets of the husband and wife consisted of their home valued at $51,000, subject to a mortgage of $30,500 leaving a net joint interest of $20,500 and 150 shares of AT&T stock valued at $6,600. The husband’s individual bank accounts totaled approximately $6,000.

This sum was composed of the proceeds of a loan from a life insurance company in the amount of $3,000. Also included were two non-recurring items of a $1,000 tax refund and $800 paid him for special teaching services. There was further included the sum of $500 loaned him by his parents and $500 to $600 he had accumulated at the time of the separation. CONSTRUCTIVE DESERTION The wife’s first ground for divorce was constructive desertion.

It was not pursued by her in prosecuting this appeal and is, therefore, considered as abandoned and not now before this Court. VOLUNTARY SEPARATION The wife’s alternate basis for seeking a divorce a ²⁴⁸ vinculo under her supplemental bill was founded on the fifth ground set forth in Md. Code, Art. 16, § 24. The statute provides in part: “* * * the court may decree a divorce a vinculo matrimonii for the following causes, to wit: * * * fifthly, when the husband and wife shall have voluntarily lived separate and apart, without any cohabitation, for eighteen consecutive months prior to the filing of the bill of complaint, and such separation is beyond any reasonable expectation of reconciliation; * * *” In Smith v. Smith, 257 Md. 263 at p. 266 , the Court of Appeals pointed out that the requirements for establishing voluntary separation as a ground for divorce under this statute are threefold, namely: “* * * [1] There must be an express or implied mutual agreement between the parties to separate accompanied by a mutual intent not to resume the marriage relationship. * * * [2] The parties must voluntarily have lived separate and apart without cohabitation for at least 18 consecutive months. * * * [3] Proof that the separation is beyond any reasonable hope of reconciliation is the third requirement.” (emphasis supplied) Under the evidence in the instant case, the parties did not cease living under the same roof until the wife’s departure on February 18, 1970. In these circumstances it has been held by the Court of Appeals and this Court that the separation contemplated by the statute does not occur until the parties cease living in the same house even though they may have ceased sexual relations prior to that time.

See Lillis v. Lillis, 235 Md. 490, 494-496 ; Jackson v. Jackson, 13 Md. App. 725 . The mutual agreement of the parties to separate mentioned in the first requirement as set forth in Smith, supra must therefore relate to the date when the separation recognized by the ²⁴⁹ law occurred or February 18, 1970 and not prior thereto. The evidence relevant to the husband’s agreement to the actual separation on February 18, 1970 shows that prior to that date he had retracted his previous order of March 2, 1969 that his wife leave the bedroom and ultimately the home. It is conceded by the wife that between March 2, 1969 and February 18, 1970, her husband on at least two occasions [he testified on more than two] requested that she return to the marital bedroom and share it with him but she refused.

The husband testified that after he was informed by his wife, in the later part of 1969, that she had secured a lawyer regarding their marital difficulties and he had better do likewise, he considered that he was powerless to prevent her from leaving the home. In these circumstances the Chancellor found that the separation on February 18, 1970 was not accomplished with the voluntary agreement of the husband. He further found that