Colburn v. Colburn

Carter, J., delivered the opinion of the Court. The appellee, Marjorie B. S. Colburn, instituted suit against her husband, John B. Colburn, Jr. (appellant), in the Circuit Court for Anne Arundel County seeking a divorce a mensa, temporary and permanent alimony, appropriate custody of the minor retarded son of the parties, and counsel fees. She alleged constructive desertion as the ground for her relief. The appellant in his answer denied the material allegations of the bill and filed a cross-bill also seeking a divorce a mensa and custody of the minor son.

He alleged actual abandonment and desertion as the ground for his relief. Judge George Sachse, after an extended trial, granted the appellee a divorce a mensa, temporary and permanent alimony in the amount of $7800 a year ($650 monthly), ordered the appellant to pay $3750 to the wife’s counsel as part of the legal fees incurred in representing her in this suit and $300 to two medical witnesses who testified for the wife. He dismissed the appellant’s cross-bill but awarded him custody of the mentally retarded son, ordered him to support the son, and gave the wife reasonable visitation rights. The appellant (husband) appealed, contending that the chancellor was clearly in error in finding him guilty of constructive desertion and in awarding the appellee temporary and permanent alimony, counsel fees, and witness fees to her expert witnesses.

FACTS At the time of their marriage in November 1956 the appellant was a 36 year old bachelor, and the appellee a 33 year old widow with an eight year old son, Larry. In December 1957 their only child, Joey, was born a mongoloid. At that time the husband was the active head ⁵⁰⁶ of the Colburn Construction Company in which he was the sole stockholder. The wife’s testimony showed that in 1963 the husband moved out of the master bedroom and into the guest room on a permanent basis, except for infrequent occasions when he would come to her bedroom for sexual relations and thereafter promptly return to the guest room.

After May 1967, their sexual relations discontinued entirely although she had repeatedly invited him to sleep with her, but he had consistently refused. She knew of no reason for the discontinuance. She further testified that from 1968 to the separation in 1970, the husband’s contribution toward her personal needs, the purchase of groceries, and the cost of a part-time maid was $200 a month. She complained to him about the inadequacy of his support but to no avail.

During this period her husband also neglected their social life in that he had repeatedly refused to take her to social activities of her friends and had been practically non-communicative with her when they were at home. In September 1968 he ordered her to leave because she had refused to take his nephew into their home. At that time she visited their family physician, Dr. John Hedeman, informed him of her domestic problems, and inquired about the effect they were having on her health. Later she consulted Dr. Schleifer, a psychiatrist, about her marital problems.

At the suggestion of Dr. Schleifer she ultimately saw an attorney about her frustrations over money matters. Thereafter in October 1969 she filed suit against her husband for an accounting for the income from property jointly owned by them. After suit was filed, her husband’s previous attitude of indifference toward her developed into one of outspoken hatred. At that time he ceased eating any meals at their home, became completely non-communicative with her, and refused to give her any money for her personal needs.

On Christmas Day 1969 the tension between the parties came to a head. When the wife offered her husband a present, he refused it and told her the sooner he got ⁵⁰⁷ rid of her the better he would like it. He refused to tell her where he was going and as he walked by her on his way out of the house she struck him on top of the head with her hand. He then spat in her face; she slapped him; he returned the slap, grabbed her by the arms, pushed her toward the basement entrance, and repeatedly said to her “get down those steps!” At that time her son Larry came on the scene and directed the husband to release her, which he ultimately did.

After Larry left on January 7,1970, she stayed with a neighbor at night until January 14, 1970, because she was afraid to stay in the house alone with the appellant. On January 14, she procured an apartment and permanently moved from the home. She has remained separated from her husband since that date. Dr. John Hedeman served as the family physician for both parties for several years.

His testimony showed that when he had seen the wife professionally in September 1968, she had complained to him of the complete breakdown of sexual relations between her and her husband since May 1967, the serious and persistent lack of communication between them, the consistent lack of social activities in their married life, and the refusal of the husband to support her properly. Dr. Hedeman regarded her complaints as “realistic and reasonable.” He found her to be suffering from a marked anxiety, tension, and depression, and suggested that she effect a trial separation from her husband 1 before she went “batty,” meaning before her condition changed “from an anxiety neurosis to, perhaps, a frank psychosis.” It was his opinion that she “was on the verge of a serious mental illness * * * as a result * * * of the relationship or lack of it with her husband.” After the parties separated he saw the wife on several occasions and found her mental condition to be greatly improved. He attributed the improvement to her living apart from her husband. ⁵⁰⁸ The testimony of Dr. Carl Schleifer, a psychiatrist, showed that he saw the wife professionally prior to and during September and October 1969. At that time she related to him substantially the same complaints she had related to Dr. Hedeman.

He found her to be highly anxious and unhappy to the point that if her condition became much worse, “she might come to require hospitalization for correction.” It was his opinion that the cause of her depression and anxiety was the marital discord between her and her husband. He also stated that the husband’s conduct toward his wife was of such a nature and extent that it overwhelmed her and in the doctor’s opinion, it would have overwhelmed any woman. Dr. Schleifer also saw the husband in October 1969. At that time the doctor related his wife’s problems to him and the husband showed no reaction whatever and did not deny them.

His response was that his wife’s interest in social activities was superficial, that her desire to relate to other people was ridiculous, and that he thought she should be satisfied with their present way of living and concentrate on their home. Dr. Schleifer diagnosed the husband as a “loner” who was very rigid, and who determined things within himself with no regard for other people’s opinions. The doctor testified that he believed the major causes of the wife’s emotional condition were the lack of communication between her and her husband, his refusal to engage in normal social activities with her, and his failure to support her properly. He further stated that the lack of normal sexual relations was a contributing though not a major cause of her condition.

The testimony of Ann Sindall, sister of the wife, showed that between July 1969 and the separation in January 1970, the appellant telephoned her several times. Mrs. Sindall testified that during these conversations, the husband had said to her: “[That] he was very furious because she [the wife] had asked him to go somewhere with her and he could not understand this because he said ⁵⁰⁹ he had made it absolutely clear that he did not want to be associated with her in any way, he did not want to be seen in her company or have anything to do with her and yet she had the nerve to ask him to take her, I think it was to a dance. On other occasions, he told me that the happiest day of his life would be when she went out that door and kept walking and never came back. On these other times he told me she was crazy, that she was going to have to be put away, that she was a thief, was stealing from their son.” She further testified that when the wife underwent surgery in January 1969, the husband’s attitude was one of complete indifference for her welfare.

When his wife was brought from the operating room, he looked at her in a contemptuous manner and asked her “why she didn’t brush her teeth because they were dirty.” Mrs. Sindall’s testimony further showed that the appellant went to the Bahamas in his boat about a week after his wife returned home from her operation and while she was still recuperating. She further stated that the parties had lived apart continuously since January 1970. Larry Seidl, the 22 year old son of Mrs. Colburn, corroborated his mother’s testimony in respect to the incident that occurred on Christmas Day 1969 and also that the husband had moved into a separate bedroom on a permanent basis in 1963. He further stated that the appellant had had a private conference with him the day after Christmas 1969 and had then told him that his mother was an alcoholic, was crazy, and was a thief.

The testimony of the appellant showed that when his wife had a hysterectomy operation in January 1969, she advised him that she would be “out of operation” for a year 2 and consequently, that he had had no sexual rela ⁵¹⁰ tions with her from December 1968 until the separation in January 1970. He denied that he had refused to have sexual relations with her. He also said he had slept in the same bedroom with her about 50 per cent of the time since 1964 and had not moved out of her bedroom permanently until December 1968 when he was required to do so because of her loud snoring and her bleeding problem. In respect to the financial situation, he pointed out that his wife had income of her own from securities left her by her first husband.

He stated that he and his wife did go out socially occasionally, but since he worked ten to twelve hours a day, he did not desire to go out often. He further said he had taken his wife on trips to Europe, Canada, Florida, and annually, to Ocean City, Maryland, and had shown his affectionate feelings toward her by placing all his property in their joint names. He admitted that after his wife filed suit for an accounting in October 1969, he became very bitter in his feelings toward her, had very little communication with her, and had eaten all his meals away from home. His version of the incident on Christmas Day 1969 was that his wife became furious because he had taken the whiskey with which she was intending to make eggnog.

She struck him on the head with her hand and then slapped him. He then slapped her back, grabbed her by the arms and pushed her against the wall. At that time he told Larry to calm her down and left the house. The appellant further testified that he had resigned as president of his construction company in January 1970 and gone into partial retirement because of his hypertension. 3 He was then 51 years old.

He also stated that after this divorce suit was filed he had transferred all his stock in the company (100 percent), which was then valued at approximately $200,000, to his nephew George Clark, for $1. In consideration of this transfer Clark had agreed to take care of his son Joey as long as Joey lived but there was no formal writing to this effect. ⁵¹¹ The testimony of Edward Mullen, C.P.A., showed that the husband was paid an annual salary as president of his company in 1969 of $49,870. After he resigned in 1970, his annual salary for acting in an advisory capacity to the company was reduced to $10,400. His total income for 1970, including his salary, amounted to $15,652 before taxes.

The net profits earned by the company after taxes in 1968 were $35,000, in 1969, $30,000 and in 1970, $29,000. These profits were allowed to accumulate and were not distributed as dividends. He further stated that the wife’s tax return for 1970 reflected the payment to her of dividends from stock and interest in the amount of $4311 from her individually owned securities plus $7800 that was paid her as alimony. The testimony of both Mrs. Jacqueline Spell, a divorcee and friend of Mr. Colburn, and Mrs. Agnes Clark, his sister, was that the wife was a constant complainer and that her husband could never do anything to please her.

CONSTRUCTIVE DESERTION In speaking of the proof necessary to establish constructive desertion the Court of Appeals in Murphy v. Murphy, 248 Md. 455 (1968) said at page 460: “Even though the cruelty required in a constructive desertion case may be less than a case wherein an a mensa decree is sought on the grounds of cruelty, yet, the objectionable conduct still must be such as to render continuation of the marital relationship impossible, if the complaining spouse is to preserve his or her health, safety or self-respect. Eberwein, supra, [ 193 Md. 95 ]. Obviously, for such a situation to exist, there must be a pattern of persistent conduct which is detrimental to the safety or health of the complaining spouse, or so demeaning to his or her self-respect as to be intolerable. * * *” (emphasis supplied.) ⁵¹² In order for the testimony of the wife to be legally sufficient to establish constructive desertion as a ground for divorce, it must be adequately corroborated as to both the acts of misconduct and their adverse effect upon her health, safety, or self-respect. Md. Code, Art. 35, § 4.

In Styka v. Styka, 257 Md. 464 , the Court of Appeals held that the corroboration required in a genuinely contested divorce case may be slight. See also Smith v. Smith, 257 Md. 263 . In Deck v. Deck, 12 Md. App. 313, 319 , this Court held that since the deletion of Md. Rule S75, the corroboration “may now again come from the other spouse.” In speaking of the corroboration necessary to establish an unjustified refusal of sexual relations as a basis for divorce, the Court of Appeals said in Lent v. Lent, 202 Md. 240 at 245 , that where the suit was contested “only slight corroboration of the refusal is required.” See also Mower