Kerber v. Kerber

Horney, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Prince George’s County granting a divorce a vinculo matrimonii to the appellee-husband and dismissing the cross-bill of the appellant-wife for a divorce a mensa et thoro. In July of 1964, the husband (William D. Kerber) filed suit for an absolute divorce on the ground of constructive desertion based on the refusal of the wife to resume sexual relations with him after he attempted to effect a reconciliation in December of 1962. The wife (Eloise M. Kerber) countered by filing a cross-bill in September of 1964 for a partial divorce on the same ground based on the refusal of the husband to resume the marital relationship following an offer of reconciliation made by her in May of 1964.

The appeal presents two possible questions. The first is whether the husband, in view of the corroboration requirements of Maryland Rule S75, should have been granted a decree of divorce. The second (in case the answer to the first is in the ³¹⁴ negative) is whether a decree of partial divorce should have been granted to the wife under the circumstances of this case. The parties, who have two sons, began to experience serious marital problems about nine years after their marriage.

They ceased having sexual intercourse in 1955 and stopped occupying the same bedroom in 1956 because, according to the husband, the wife kept him awake by rubbing cold cream into her hands and face, persisted in so covering the bed as to make it too warm for him and poked him in the ribs if he rolled against her while in bed. During the years that they continued to sleep apart, the marriage was characterized by bickerings and petty arguments and desultory conferences with marriage counselors. Finally, in December of 1962, at a time when both parties were consulting a family service agency, the husband, acting upon the advice of their counselor, moved back into the bedroom. The husband testified that when this move was made the wife threw a “tantrum” and refused either to sleep with him or to resume marital relations.

He further stated that they had not lived together as man and wife since that time. The wife testified that she thought the action of her husband in moving back into their bedroom was the result of intoxication because he had been drinking and did not remove any of his clothes before getting in bed. She further stated that as a result of his apparent intoxication, and because she believed he was not sincere, she refused to sleep with him. The difficulties between the parties apparently continued without abatement both in and out of court, for in May of 1964, a bill of complaint which the wife had filed against the husband for a divorce was dismissed by the chancellor, who according to the wife, suggested that they make a bona fide effort for a reconciliation and a resumption of marital relations.

The wife testified that immediately after the dismissal of that action she told her husband that he could move back into their bedroom, that she was ready to resume sexual relations with him and that she was “very sincere about it.” Although the husband admitted that his wife had made such an offer, he claimed she had no intention of effecting a reconciliation. Besides the parties, the only other witness was their oldest son. He was called by his father and testified that his parents ³¹⁵ had occupied separate bedrooms for as long as he could remember. The son further testified that in May of 1964 he overheard his mother ask his father to return to the bedroom.

Later he said that he interpreted this as a request by his mother that they should resume marital relations. The witness then stated that the parties did not go back together at that time or since then. (i) The unjustifiable refusal of either the husband or the wife to have sexual intercourse with the other spouse constitutes matrimonial desertion. And when such abnormal conduct has continued uninterruptedly for the statutory period of time, and is deliberate and final, and the separation of the parties is beyond any