Courtney v. Courtney

Hammond, J., delivered the opinion of the Court. A husband appeals from refusal of the chancellor to grant him a divorce on the ground of mutual separation for three consecutive years. Despite the grounds on which he sought the divorce, the husband’s proof tended to show that the separation began when his wife constructively deserted him. It is agreed that in November, 1951, the couple sold the house in Baltimore in which they had lived for many years, divided the net proceeds, went their separate ways and have lived apart since that time, apparently without communication between them.

He has not sought reconciliation nor proffered either a home or support. She has made no overtures toward reunion and has asked no support. The husband contends that the separation was voluntary from the beginning but that if it were not, it had become so more than three years before the filing of the bill. It is said by the husband that the wife “by her conduct has demonstrated, at least by silent acquiescence, her tacit consent to the separation.” The husband and wife differ diametrically on the material points.

The chancellor believed the wife. His findings of fact were that the relations became strained in April, 1951, when the wife refused to sign a mortgage on the house so as to obtain money for a business venture of the husband, that the husband became enraged at his wife’s refusal, left the common bedroom, wrote his wife a note which he left on the kitchen table, in which he said: “You better sign or I will leave you”, and refused to talk to his wife, leaving the house early in the morning and returning late at night. The husband denied writing the note but the chancellor, who had an opportunity to compare the handwriting with handwriting admittedly that of the husband, believed the wife’s testimony that the note was in the husband’s handwriting and had been left for her. It may be that the husband’s denial under oath of what the chancellor found to be a fact was a material reason for his belief in the wife’s version of what occurred.

In ⁶⁰² any event, he found that the husband deserted the wife in April, 1951, and that he left his wife in November, when they sold the house, without providing, or intending to provide, a common abode. It is clear that on the findings of the chancellor, the separation was not voluntary when it occurred. Matysek v. Matysek, 212 Md. 44, 48 . In Hughes v. Hughes, 213 Md. 452 , the husband’s testimony showed voluntary separation and it was corroborated.

There the chancellor was clearly wrong. A separation that was originally involuntary on the part of one spouse may at a later time become voluntary as to both spouses. Campbell v. Campbell, 174 Md. 229, 239 ; Matysek v. Matysek, just cited. The chancellor found no evidence that there had ever been any agreement of the wife to live