Galvagna v. Galvagna

Anderson, J., delivered the opinion of the Court. This appeal presents for review a decree of the Circuit ⁶⁹⁸ Court for Prince George’s County in which the plaintiff-wife was awarded a divorce a mensa, et thoro and other ancillary relief which is not involved in this appeal. The sole question raised is: Did the trial court err in awarding the plaintiff-wife a divorce a, mensa et thoro from the defendant-husband ? The husband and wife were married on September 28, 1943, in this State, and have been residents since that date.

Four children were born as a result of the marriage, two sons and two daughters, all of whom are now emancipated except the youngest daughter, Janet, who was born November 15, 1954, and who presently resides with her mother. The wife’s bill of complaint was based upon constructive desertion. While she complained in her testimony that her husband had been abusive towards her in the past five years and had failed to adequately support either herself or the two girls and that she lived in constant fear of her husband, her principal grievance centered around his striking her on March 16, 1969. On the night in question the husband had gone to Baltimore on business.

He had previously called the house around 6:00 p.m. and told his eldest daughter he would have to go to Baltimore but would return between 11:30 p.m. and 12:30 a.m. He returned home around 12:30 a.m. and found that his wife was not home and that she had gone with friends to North Beach. His eldest daughter, whom he had previously talked with, was not home either. He went upstairs, changed into his pajamas, put his robe on, and came downstairs.

The wife came home around 1:30 a.m. but did not converse with her husband. The wife went to her bedroom on the first floor, while the husband went back upstairs. He then returned downstairs to wait for his daughter. According to the wife’s testimony the lights were off and she came out of her bedroom and asked her husband why he was “creeping around the house in the dark.” The husband replied that he was waiting for their oldest daughter to come home.

The wife testified she asked him, after turning on the lights, why he wanted ⁶⁹⁹ “to wait for her to frighten her in the dark like that,” and she admonished him that that wasn’t “any way to wait for a child.” The wife told him to stop “creeping around the house like that, that it was frightening me” and returned to her bedroom. She then testified that her husband came over and opened her bedroom door and said, “I bet you had a good time tonight.” She said he then struck her across her face and shoulder and threw her around the bedroom. She screamed and this woke her youngest daughter. The husband then left the bedroom.

The wife swore out a warrant charging her husband with assault and battery. According to the husband’s testimony he was waiting downstairs for his daughter to return and the wife made repeated trips from her bedroom to say, “What are you waiting for? Why are you waiting for Joanie? You never were interested in Joanie.” Finally, his wife called him a s.o.b. and he walked back to her bedroom and told her that she had “better stop this sort of business”; whereupon, she hit him and he struck her on the side of the face with his hand.

His wife fell back on the bed and began to scream, and he put his hand on her mouth and told her to stop. His youngest daughter then came into the bedroom and his wife called the police. He called his oldest son and when the police arrived, they all went to the station house where his wife swore out a warrant against him. The wife testified that after the above incident, she slept in her daughter’s bedroom, with the door locked, and after several days left the home and moved into an apartment.

The wife admitted that when her husband entered her bedroom on March 16th and struck her, he used his hand and not his fist. She further stated that this was the first time he had ever physically abused her by striking her. It is apparent from the testimony that the marriage between these parties had been an unhappy one for many years and that on a prior occasion the wife had left her husband but had later returned to him. The wife had a ⁷⁰⁰ drinking problem some ten years before she left, and had been a member of Alcoholics Annonymous since then.

The testimony discloses that while the wife stated that her husband became quite disagreeable when drinking, his drinking appeared to have been moderate and confined only to weekends. Although the bill of complaint alleges that for a long period of time the defendant-husband had treated the plaintiff-wife in a cruel and inhuman manner by using abusive language, threatening to kill her, calling her vulgar names and making unjust accusations and performing acts too numerous to mention to harass and abuse her, there is no testimony ,in the record to support such allegations. Indeed, most of the wife’s complaints arose over events alleged to have occurred after the separation. She testified that on one occasion, about five months after she left, when she returned to her apartment with a male friend, her husband drove up in his automobile, got out, and physically pushed her friend against the automobile.

On another occasion, she testified that she had eight flat tires and that nails had been driven into them or that they had been cut with glass and, also, that someone had poured sand into the gas tank of her automobile. However, there was nothing in the record to indicate that her husband had committed any of these