Luther v. Luther

Sybert, J., delivered the opinion of the Court. Warren M. Luther appeals from a decree of the Circuit Court for Baltimore County which granted a divorce a vinculo matrimonii to his wife, Lillian F. Luther, on the ground of desertion, with an alimony award of $25.00 a week. The only question presented is whether the actions of the wife, while suffering from mental illness, constituted constructive desertion so as to justify the husband in leaving the family home. The parties were married in April 1939.

Two- children were born, both now emancipated. The wife has been affected by mental disease during the last few years. In March 1959 the husband had the wife committed, after examination by a physi ⁹⁴ cían, to the Springfield State Hospital, a mental institution. The appellant’s main complaint before the commitment seems to have been that she failed to do her housework in a proper manner.

She remained in the institution until June 1959. During her confinement she spent several weekends at home, when she performed the household chores in a manner satisfactory to her husband. When the appellant felt assured that the appellee would continue to perform her housework in a proper manner, he brought her home. Then began a series of incidents which culminated in the separation of the parties.

The appellee again failed to perform her household duties, and, in addition, there were several alleged acts of violence directed toward the appellant. The appellee admittedly threw at least one ash tray at her husband, and stood over him while he pretended to be asleep and made motions as though she were going to gouge out his eyes with her fingers. The appellant testified that on various occasions his wife clawed at his face with her fingernails, threw hot coffee in his face, spat in his face while he was eating with the children, threw ash trays at him several times, and used profane language in front of the children. Richard, the adult son, testified that the appellee had refused to do the housework; used vile language; attempted to hit the appellant with a baseball bat; threw a pressure cooker lid, a steam iron and dishes at the appellant on different occasions; and refused to eat with the family.

Gloria Hopkins, the married daughter, corroborated the testimony of her father and brother. On January 5, 1960 the appellant and the two children (Richard being then nineteen and Gloria being then fifteen and unmarried) moved out of the family home. The appellee was given no advance warning of their intention, and only learned of the impending departure when movers arrived to remove virtually all of the household furniture. At the direction of the appellant, the movers left only a bed, table, chair and lamp for the appellee’s use.

The house was left unheated, even though it was midwinter. There was little or no food in the house. The only money left for the appellee’s use was a ten dollar money order, although the appellant periodically provided support money after the separation. The appellee continued to live in the house ⁹⁵ for the next six weeks, during which time she was principally dependent on the charity of members of her church.

A Reverend Mr. Holden, at the request of certain church members, visited the appellee and found her without food and the house cold. He had a supply of oil delivered and provided food. On February 24, 1960, at the instigation of the Reverend Mr. Holden, the appellee was again admitted to Springfield State Hospital, where she remained for a period of eight months. The Chancellor found that during the period between appellee’s first and second admissions to Springfield State Hospital, she was “mentally ill and not in full control of her faculties”.

The Chancellor felt that because of the appellee’s mental condition, she was not responsible for her behavior during the intervening period, and that therefore she had not constructively deserted her husband. The Chancellor then found that the appellant’s desertion of the appellee was not justifiable, awarded the appellee a divorce on the ground of desertion, and decreed alimony of $25.00 a week. In cases, such as the present one, in arriving at a determination whether the husband was legally justified in leaving the wife, “[t]he test laid down in the cases is whether her conduct was such as to put him in fear of his life or to render it impossible for him to continue the marital cohabitation with health, safety and self-respect.” Stecher v. Stecher, 226 Md. 155, 158 , 172 A. 2d 515 (1961). See also Smith v. Smith, 225 Md. 282, 287 , 170 A. 2d 195 (1961).

To support his contention that the appellee was guilty of constructive desertion, the appellant relies mainly on the cases of Bryce v. Bryce, 229 Md. 16 , 181 A. 2d 455 (1962), and Kruse v. Kruse, 179 Md. 657 , 22 A. 2d 475 (1941). In the Kruse case this Court held that a wife’s violent conduct, not amounting to insanity, although there was a lack of control, justified a husband in leaving home and gave him ground for a divorce for constructive desertion when the wife’s conduct was such as to “render impossible the continuation of matrimonial cohabitation with safety, health, and self-respect”. But we think that Kruse is distinguishable on the facts. In