Matthews v. Matthews

Briscoe, J., delivered the opinion of the Court. The bill in this ease was filed oh the 5th day of December, 1908, in the Circuit Court for Washington County, by the appellant against the appellee to procure a divorce a vinculo matrimonii, on the ground of abandonment and desertion, under Art. 16, sec. 36 of the Code of Public General Laws. The appellant and appellee were married on the 16th day of August, 1893, and lived together as husband and wife, in Hagerstown, Md., until sometime in February, 1905. It is charged by the bill and admitted by the answer that they have lived apart for over three years.

The bill was filed on the 5th day of December, 1908, is in proper form and contains the usual and necessary averments in bills for divorce for abandonment and desertion under the statute. If the averments of the bill are sustained by the proof, the plaintiff is undoubtedly entitled to the relief sought by this suit. The statute, Art. 16, sec. 36, Public General Laws, provides the cause or the grounds upon which the Courts in this State may decree a divorce a vinculo matrimonii, and one of ⁵⁸⁴ the causes is provided as follows: “When the Court shall be satisfied by competent testimony that the party complained against has abandoned the party complaining and that such abandonment has continued uninterruptedly for at least three years and is deliberate and final and the separation of the parties beyond any reasonable expectation of reconciliation.” This statute has frequently been before this Court for interpretation and the rules by which this and similar cases are to be' controlled have been fully considered and stated by this Court. In Gill v. Gill, 93 Md. 654 , this Court re-affirmed the rule laid down in Lynch v. Lynch, 33 Md., to the effect 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 we there said, “and this is in full accord with the best considered cases elsewhere.” Lynch v. Lynch, 33 Md. 328 ; Gill v. Gill, 93 Md. 654 ; Gregory v. Pierce, 4 Metcalf, 479; Bennett v. Bennett, 43 Conn. 313 .

Mr. Bishop in his work on Marriage, Divorce and Separa' tion, Vol. 1, secs. 1662 and 1672, says desertion as a matrimonial offence 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 other. In all cases the criterion is the intent to abandon. And in A. & E. Ency. of Law, Vol. 9, page 764, it is said: Desertion is the wilful termination of the marriage relation byr one of the married parties without lawful or reasonable cause or a refusal without reasonable cause to renew the marriage relation after pailies have been separated. In the case now under consideration, the evidence is clear and undisputed as to the continuous and uninterrupted separation of the parties for the statutory period of three years, and that the abandonment of the husband by the wife, at the time of desertion, was deliberate and final. ⁵⁸⁵ The sole question for us to consider, on this record, and one of the requirements of the statute that the plaintiff must meet, is whether this conceded separation of the parties for over three years is beyond any reasonable expectation of reconciliation.

And this brings us to a consideration of the pleadings and proof set out in the record. The bill, after alleging the marriage on the 16th day of August, 1893, in Hagerstown, Maryland, where both of the. parties resided, and where they lived until their separation, and that no children have been born of the marriage, and that the plaintiff provided a home for the defendant, was always a faithful and loyal husband to her, giving her nó cause or reason to leave his home, alleges in the third para" graph of the bill: That on the 14th day of February, 1905, the defendant abandoned and deserted him, without any cause whatever, that the abandonment is deliberate and final, and has continued for more than three years and is beyond any hope of reconciliation. And by the fourth paragraph of the bill, the plaintiff avers that he has not lived nor cohabited with the defendant since she left him and that he has always been willing to live with her and provide a home for her, as he always had done. The defendant answered this bill on the first of February, 1909, admitting in part its allegations, except the allegation of abandonment and that the plaintiff is entitled to a. decree of divorce, but avers by the fifth paragraph of the answer, that the allegations complained of in the bill filed in this cause were heretofore passed upon by a final decree of this Court passed in Mo.

Equity, in the Circuit Court for Washington County, Maryland, and no further cognizance ought to be had of this case. To this answer the plaintiff filed a general replication on the 10th of February, 1909, joining issue on the answer, in so far as it denied the allegations of the bill and testimony was subsequently taken on behalf of the plaintiff, but none on behalf of the defendant. The testimony appears to have ⁵⁸⁶ been closed and returned at the request of the counsel for the plaintiff and consent of the counsel for the defendant. The case was heard in the Circuit Court for Washington County, on the pleadings and evidence and from a decree passed on the 16th day of March, 1909, denying the relief sought by the husband and dismissing the jfiaintiif’s bill, this appeal has been taken.

We cannot agree with the conclusion reached by the Court below, on the record in this case, that the plaintiff has failed' to establish a case of abandonment and desertion on the part of the wife, within the meaning and contemplation of see. 36 of Art. 16 of the Code of Public General Laws, as to entitle him to a divorce. On the contrary, we think, the proof is sufficient and ample not only to answer the requirements of the statute but to warrant and justify the decree asked by the plaintiff in his bill. The uncontradicted evidence shows that the wife abandoned her husband’s home more than three years ago, without any lawful and reasonable cause, and the separation has continued uninterruptedly since the day she left him to live with her sister in the same town. She has refused without reasonable cause and without any explanation whatever, to renew the marriage relation, although requested by her husband to do so, and has repeatedly stated to others that the separation was final and that she would never return to his home.

The plaintiff testified “that since my wife left me about four years ago, I have asked her to return and live with me but she said ‘never again.’ ” He also testified, that she had left him several times before the final separation, that he was always ready and willing' to provide a comfortable home for her and would be with her now, if she had stayed, that he had provided her a good home and gave her no reason to leave “our house.” The plaintiff’s testimony is not only supported and corrorborated by the undisputed testimony .of four disinterested witnesses, but by all the circumstances surrounding the sep ⁵⁸⁷ aration since and at the time of the desertion of the husband by the wife.. The witness, Wáshington, a nephew of the defendant, testified that he knew the plaintiff