Miller v. Miller

Henderson, J., delivered the opinion of the Court. This appeal is from a decree dismissing a husband’s bill for divorce on the ground of constructive desertion, filed in April, 1952, but allowed to remain dormant until October, 1953. The parties were married in 1936 and there are no children of the marriage. For about three years prior to the marriage, Mrs. Miller had been the appellant’s housekeeper and looked after his two children by a former marriage, a boy and a girl aged, respectively, 17 and 13 at the time of the marriage.

She had lived in-the house, which he owned, with her daughter by a former marriage who had a retarded mind. He conducted a small jobbing business from a shop in the basement. According to the testimony of the husband, supported in some particulars by his son and daughter, the wife, after the marriage, did not get along with her stepchildren and was always “nagging and fussing”. About 1940, for no particular reason, she moved his things out of the front room they occupied into the back room where ⁵¹¹ the son slept, and moved her daughter into the front room.

He testified that she has since refused to have marital relations with him, despite efforts on his part to “put the cards on the table and get things straightened out”. He is still occuping the back room. She is still performing household duties. His daughter married and left the home about 1942; his son was in military service for 3 years and married in 1951.

It was brought out in cross-examination that his children have a remainder interest in the premises, apparently by conveyance executed by the husband in 1950. At the time the bill was filed in 1952, the husband was 65 years of age, the wife about 53. In 1951 he broke his hip in an automobile accident and was laid up for about 18 months. He complains that she neglected him during this period; that she refused to attend to his wants or cook for him unless paid for her services.

However, it was brought out that her demand was only for money to run the household, which he could not supply and which was supplied by the son, who maintained the shop in the basement although he resided elsewhere. When he had sufficiently recovered, Mr. Miller obtained a job as a night watchman at a small salary. The wife’s version of the change of rooms was quite different. She testified that the children seemed to resent the marriage and made things difficult for her.

However, it was not until 1945 that her husband moved to the back room, and she described the incident in detail. She testified that her stepdaughter had previously made an unfortunate marriage (she has since remarried) and had a child which was about 3 years old in 1945. A strange woman brought this child to Mrs. Miller, stating that the mother had disappeared. Mrs. Miller took care of the infant, but repeatedly complained to Mr. Miller that the mother should be found and compelled to care for her child.

He refused to do anything about it, but their relations became so strained that finally, after about five months,