Gill v. Gill

Pearce, J., delivered the opinion of the Court. We are not able to agree with the learned Judge of the Circuit Court by whom the bill of the appellant for a divorce a vinculo matrimonii was dismissed. The ground upon which he proceeded, as stated in his opinion, is that the allegations of the bill as to the abandonment of the plaintiff by the defendant are not sustained by the degree of proof required under the decision in Lynch v. Lyuch, 33 Md. 328 . In that case the bill was filed by the husband against the wife for a divorce a vinculo, and the Circuit Court being of opinion that there was no proof of an intention on the part of the wife to bring about a separation—though her conduct was so outrageous as to justify him in leaving her—refused the prayer for a divorce a vinculo, but granted a decree a mensa et thoro.

On appeal this decree was affirmed, because, as Judge Alvey said, the proof showed unbearable persecution of the husband by the wife, while living together, but also showed that, so far from having a deliberate design of producing an abandonment, after her paroxysm of passion had subsided, she was always ready to admit her fault and willing to become' reconciled, and that the desertion of the common home was the act of the complainant. These findings upon the proof, as we think, clearly discriminate these cases, and deprives the case in 33 Md. of any authority adverse to the complainant in this case. The ⁶⁵⁴ rule laid down in 33 Md. is that abandonment, to constitute ground for a final divorce, must be the deliberate act of the party complained of, done with the intent that the marriage relation should no longer exist, and this is in full accord with the best considered cases elsewhere. Thus in Gregory v. Pierce, 4 Metcalf, 479, Chief Justice Shaw says : “It must be a voluntary separation from, and abandonment of the wife, embracing both the, fact and intent of the husband to renounce de facto, and as far as he can do so, the marital relation.” And in Bennett v. Bennett, 43 Conn. 313 , “Desertion, in the marriage relation, consists in the breaking off of cohabitation, with a determination not to renew it.” These judicial declarations as to what constitutes abandonment or desertion in law, agree with the definition of the leading text-writer of this country upon this subject, Mr. Bishop, who says in his work on Marriage, Divorce and Separation, vol. 1, secs. 1662 and 1663. “Desertion as a matrimonial offense, is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent, or the wrongful conduct, of the latter.

Its (inherent) affirmative elements are two—the cohabitation ended—and the offending party’s intent to desert. The statute creates a third affirmative element, the lapse of a defined period of time. In all cases the criterion is the intent to abandon. ” 1 Bishop, sec. 1672. Stewart on Marriage and Divorce, secs. 254 and 255.

In the case before us, the proof shows that the parties were married October 14th, 1862, and that they have both since lived continuously in Baltimore City ; that there are two children of this marriage, one daughter born in December, 1863, and another daughter born in 1867 ; that the defendant left the plaintiff in 1883 and has never lived with her since. In answer to a question why her husband left