Melson v. Melson

Parke, J., delivered the opinion of the Court. John G. Melson, the appellant, was married to Ronie L. Melson, the appellee, on March 4th, 1908, and they lived together in Salisbury until October 5th, 1921, when they permanently separated. On March 8th, 1923, the spouses entered into a separation agreement and a second agreement providing for the control, custody and support of their only child, Maude Virginia Melson, who was born on August 3rd, 1913. The bill in this cause was filed on December 26th, 1924, by the wife, alleging desertion as her ground for an absolute divorce, and setting up the non-performance by the husband of his contractual obligations, under the agreement of March 8th, 1923, to contribute to the support of the infant child, and also, the insufficiency of the amount the ¹⁹⁹ husband had agreed to pay for the child’s support.

In addition to the absolute divorce asked, the relief prayed for included alimony for the support of the wife and maintenance for the daughter, and an allowance for counsel fees. The court passed a nisi order granting a counsel fee of fifty dollars. The husband resisted this order on the ground that the wife had covenanted in the articles of separation, which had been fully performed by the husband, that she would not “institute any action or civil process, or proceeding whatever, against the said husband for support, maintenance, alimony, or any other charge or liability whatsoever, except personal injury or wrongs.” .The court found this objection insufficient and passed a subsequent order allowing a counsel fee to complainant’s solicitors of twenty-five dollars. After the canse was at issue, testimony was taken by both parties and, on the submission for decree, the chancellor dissolved the marriage on the ground of desertion, granted the wife alimony in the sum of five hundred and twenty dollars payable quarterly, and awarded the custody and guardianship of the infant to the mother, and charged her with the maintenance of the child out of the alimony allowed.

The appeal by the husband is from this decree. The testimony supported the charge that the husband had deserted the wife, and the principal question is if the nature of the separation had not been altered tinder all the circumstances into one of mutual consent, by the two contemporaneous agreements of the parties providing for the separation of the parties and for the custody and support of their infant child. The two agreements mentioned were at once the outcome and the termination of a suit for a divorce a mensa et thoro begun by the wife against the- husband on April 8th, 1922. The two contracts, while- separately executed, were parts of one preceding agreement and were- delivered on March 8th, 1923; and, pursuant to their prior undertaking, both parties signed, on March 9th, 1923, a joint order dismissing the then pending proceedings for divorce-.

At the date of the two agreements, the proof tended to- show that the wife, who had the custody of the child, was without fairlt; and that a ²⁰⁰ few days more than seventeen months had passed since the husband had abandoned his wife and child. Under these circumstances, the two agreements to put their personal relations and property rights on a permanent basis, and to provide for the care and custody of the child, were consummated. The deed of separation contained the recital that “differences have arisen between the said husband and wife in conseqence of which they have separated and there is no probability of them living together again at any time 'in the f1uture, and whereas, with a view to said change in their relations they desire to enter into such an arrangement as to their personal and property rights as is hereinafter contained,” and then, in consideration of the sum of one thousand and fifty dollars paid by the husband to the wife, followed the covenants of the spouses. These covenants provided, in effect, for a permanent separation, which gave to each full and complete personal liberty and independence, with the right to contract, to acquire, to hold, and to dispose of real and personal property as fully as if each were unmarried and with a full surrender and release (a) of any existing or future right of either in any present or future property of the other by reason of their marital relation, and (b) of any right of the wife to make demand or to institute any action whatever against the husband for support, alimony, or other liability, except personal injury or wrong.

The other contemporaneous agreement set forth the fact that the parties had previously entered into a separation agreement of even date and desired to provide for the custody of their child, and then stipulated (a) that the mother should have the custody and control of the infant, who was then nine years old, with the privilege of the father to see the child under specified restrictions and to have the child live with him one week of every month during the period school would be closed during the summer vacation period, and (b) that the father should contribute the sum of ten dollars a month in money, food or wearing apparel towards the support and maintenance of the child until she became eighteen years of age. While there was no express stipulation to that effect, the ²⁰¹ agreements contemplated the permanent cessation of the marital relation in every respect; and, at a time when the innocent -party was at most entitled to but a divorce a mensa et thoro, the spouses secured by contract all the actual benefits of a full divorce, except, necessarily, the privilege of marriage. However, this deed of settlement is not per se a bar to a suit for divorce. Walker v. Walker, 125 Md. 649, 660, 661 ; Lemmert v. Lemmert, 103 Md. 57 ; Barclay v. Barclay, 98 Md. 366 ; Kremelberg v. Kremelberg, 52 Md. 553, 557 ; Helms v. Franciscus, 2 Bland, 519, 558, 562, 565; McCubbin v. Patterson, 16 Md. 179 ; 2 Schouler on Marriage etc., secs. 1304, 1306, 1309.

Where there is a subsequent cause, as adultery, the injured party may obtain a divorce, although the parties were living separate under articles of agreement. 2 Schouler on Marriage etc., sec. 1310. And in G. v. G., 39 Md. 401 , impotency, which, under the statute, rendered the marriage voidable ah initio, and which was a cause accruing before the deed of separation, was held to be available as a sufficient, ground of divorce, when accompanied by proof of exceptional circumstances explaining and qualifying the natural inference to be drawn from the execution of the deed of separation, and establishing the good faith of the complaining party. So, in Kremelberg v. Kremelberg, 52 Md. 553 , by a greatly divided court, and under its unusual facts-, adultery was held a sufficient ground for divorce a vinculo matrimonii at the instance of the wronged party, although articles of separation had been executed by the husband and wife after, and with knowledge of, the adultery. And in Lemmert v. Lemmert, 103 Md. 57 , this court- there held “that if a wife abandons her bushand without just cause and then files a bill for divorce a mensa, et thoro and alimony, and in settlement of that they make such a contract as the one before us (although both before and after its execution the husband made a bona fide effort to have his wife return to him), the contract is not a bar to his suit for divorce on the ground of abandonment, and cannot properly be said to be an acquiescence by him in the separation, or a condonation of the offense.” At p. 64. ²⁰² In the first two cited cases the causes for divorce were respectively impotency, which was a physical impediment to the consummation of marriage, and an adultery in which the injured spouse had not acquiesced.

These two cases are instances of a class in which the marital offence, affording a ground for divorce, was complete before the articles of separation were executed, and so are to be distinguished from the third or last cited case of Lemmert v. Lemmert, supra, where the cause for an absolute divorce was not complete because, at the time of the agreement of separation, the desertion complained of had not continued for the requisite period of three years,' and because the agreement itself became an important factor in determining the continuity of the desertion for the necessary length of time. The importance of the agreement of separation arises from its significance as an expression of the intent of the parties with respect to marital cohabitation. The marital offence under discussion is not complete unless there co-exist continuously throughout the period of three years the fact of separation and the intent to desert by the party deserting. Muller v. Muller, 125 Md. 72, 76 .

The statute specifically demands “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.” Code, art. 16, sec. 38. The law excludes the possibility of an abandonment beginning in a common consent, because a joint wrong would give no cause of complaint to either; and, as this abandonment, no matter how completely it fulfills its legal requisites at the outset, must retain its fundamental nature unimpaired throughout every portion of the requisite minimum period of three years, so if the separation of the spouses for any later portion of the three year period be attributable to the subsequent common consent of the couple, the prescribed statutory duration of desertion is not fulfilled. It follows that, after desertion has begun, the running, of the statutory term of three years is, prima, facie, interrupted by ²⁰³ the innocent spouse uniting, without fraud or duress, with the guilty spouse, in a contract for maintenance and for a cessation of conjugal rights. This prima facie presumption of a common intent with respect to future separation has been held by this 'Court to he rebuttable by parol evidence of the surrounding circumstances, even where the contract contemplates the cessation of cohabitation.

In the cited case of Lemmert v. Lemmert, supra, the presumptive intent of the husband as disclosed by the deed of separation was controlled by parol evidence. In view of the wording of the contract, when considered with the associated facts and circumstances, and the bona fide effort, both before and after the articles of separation, of the innocent spouse to induce the guilty spouse to resume her conjugal relations, this court held in Lemmert v. Lemmert, supra, that the agreement- was not made with the intent of