Fischer v. Fischer

Marbury, C. J., delivered the opinion of the Court. This is one of those all too often frequent divorce cases in which parties request a legal separation because of cessation of marital activities while continuing to live in the same house. In the case before us, the wife brought the original bill for a divorce a mensa and for alimony. The husband then filed a cross bill for divorce a mensa.

The Chancellor dismissed both. The wife did not appeal, but the husband did. So the question before us is only whether he showed sufficient grounds to get a divorce a mensa from his wife. Another case was brought by the wife, asking for the annulment of a deed for the property in which the couple lived, made by her husband to his son by his first wife.

The Court set aside this deed, but no appeal was taken by the husband from this decision, so that question, although intimately connected with the facts in the divorce case, is not before us. The parties were married in 1942. Each had been married before, and each had grown children. The ⁵⁰⁴ appellant had been divorced from his first wife, and she had married again.

Their son is married and has a family.- One of the wife’s daughters by her first husband lives with the Fischers. She is employed, and at the time the case was heard below was 23 years old. In November, 1946, she came home one night, was alarmed by something outside of thé house, and requested her mother to sleep in her room. The husband did not object to this, and the wife continued to sleep with her daughter from that time on.

The husband said he asked her to come back, but she did not come back. The wife denies this, and says that the next day he told her he was going out that night by himself. That from that time on he would never take her out again, and said that he did not care for her. That he did go out alone, she did not return to his room because of what he said, and afterwards he never even talked to her, but said he was through with her forever.

On one occasion, however, in February 1947, when her married daughter and her grandson were in the house in the day-time, she admitted her husband called her and asked her to get in his bed. She refused because of the manner in which he asked it in the hearing of her daughter and grandson. After this occurrence the husband transferred the property to his son, and a proceeding in the Peoples’ Court was started to compel the wife to pay rent or to get out of the house, and subsequently, another proceeding was started to put the daughter out, or to collect rent from her. There is other testimony about the husband’s physical condition, and his claim (denied by the wife) that she refused to cook for him, but we see no necessity for prolonging this opinion by its relation.

In our opinion the evidence does not justify the conclusion that the husband wanted his wife to come back or that he asked her in good faith to do so. His actions indicated'otherwise, and. we do not think he has proved his right to a divorce a mensa.. The refusal of a decree in favor of