Richardson v. Richardson

Scanlan, J., delivered the opinion of the Court. On August 9, 1971, the appellee, Norma Gene Eichardson, filed a bill of complaint in the Circuit Court for Montgomery County, seeking a divorce a mensa et thoro from her husband, the appellant, Jack E. Eichardson. ⁶⁶⁸ Her divorce action alleged constructive desertion by the appellant and also sought to impress a trust on real property which the couple had purchased in January, 1960 shortly after their marriage in 1959 and where they lived as husband and wife until the break up of their marriage in June 1971. This property, it appears, had been conveyed to the appellant in his name alone when acquired by the parties in 1960. On September 20, 1971, the appellant answered the -wife’s action, disputing all the essential allegations of the bill of complaint, and filed a cross bill seeking a divorce on the ground of desertion by the appellee.

The trial judge filed a written opinion and order on July 27, 1972, followed by a “Final Decree” issued on August 10, 1972, holding that the appellee was entitled to a divorce a mensa et thoro and denying the appellant’s cross bill for divorce. The chancellor’s decree also granted the appellee alimony and monthly support for two minor children born of their marriage, provided for reasonable visitation rights and ordered the appellant to pay a total of $600.00 towards the wife’s counsel fees. His order also appointed a trustee and directed him to convey the interests of both parties in their home to the appellant and the appellee as joint tenants. This appeal presents the following questions: . 1.

Was the evidence sufficient to support a finding that the appellant engaged in persistent homosexual conduct which so impaired his wife’s safety and health and demeaned her self-respect as to amount to constructive desertion of the home on the part of the appellant entitling her to a divorce a mensa? 2. Was the appellant entitled to a divorce a mensa on the ground of desertion by the wife? 3. Were the trial court’s awards of alimony, child support and counsel fees to the appellee excessive ? ⁶⁶⁹ 4. Did the court below err in directing that the real estate, originally conveyed to the appellant alone, be conveyed to the appellant and the appellee as joint tenants?

I THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH CONSTRUCTIVE DESERTION ON THE PART OF THE APPELLANT This Court has had several occasions to discuss the law of constructive desertion in Maryland. Binder v. Binder, 16 Md. App. 404 , 297 A. 2d 293 (1972); Renner v. Renner, 16 Md. App. 143 , 294 A. 2d 671 (1972); and Bryant v. Bryant, 16 Md. App. 186 , 294 A. 2d 467 (1972). In Bryant , we referred to and applied the controlling decision of the Court of Appeals in Scheinin v. Scheinin, 200 Md. 282 , 89 A. 2d 609 (1952). In delineating the principles of law governing the grant of a divorce on the ground of constructive desertion, the Court of Appeals held in Scheinin that: “It is accepted that any conduct of a husband that renders the marital relation intolerable and compels the wife to leave him may justify a divorce on the ground of constructive desertion, even though the conduct may not justify a divorce on the ground of cruelty.

Sullivan v. Sullivan, 199 Md. 594, 600 , 87 A. 2d 604, 607 . Any misconduct of the husband will justify the wife in leaving him when it makes it impossible for her to live with him without loss of her health or self-respect, or gives her reasonable apprehension of bodily injury. If the husband’s misconduct has been such as to render continuance of the marriage relation unbearable, justifying the wife in leaving him, he is the one who is guilty of desertion.” Id. at 290. ⁶⁷⁰ The principles set forth in Scheinin remain the law of this State. Bryant at 190 ; see also Murphy v. Murphy, 248 Md. 455 , 287 A. 2d 523 (1968).

To prevail in the case at bar, therefore, the appellee must show that she was legally justified in leaving her husband because by his conduct he had demonstrated a pattern of persistent cruel or offensive conduct which was so demeaning to her self-respect as to be intolerable. Neff v. Neff, 13 Md. App. 128, 133 , 281 A. 2d 556 (1971). Thus, in Soles v. Soles, 248 Md. 723 , 238 A. 2d 235 (1968), the Court of Appeals held that a practice of abnormal sexual relations by one spouse and his demand that it be continued justified the wife in leaving the marital domicile in order to preserve her health and self-respect. Although there are no reported cases on the precise point in Maryland, it may well be that, in a case where the evidence justified it, a pattern of homosexual activity on the part of one spouse could be so demeaning to the self-respect of the other that the latter would be justified in leaving the household.

Divorce — Homosexuality as Ground, 78 A.L.R.2d 828 (1961); see also, e.g., H. v. H., 59 N. J. Super. 227, 157 A. 2d 721 (1959). The case last cited involved lesbian activities on the part of a wife. In reversing the judgment denying the husband a divorce, the New Jersey court concluded that “it is obvious that some kinds of cruel conduct are so patently injurious in nature as to permit relatively less exacting proof of the resulting deleterious consequences [to the marriage], the acts themselves being clearly calculated to .produce reactions in the injured spouse incompatible with a continuance of the marriage relationship and inimical to his mental or physical welfare.” Id. at 727 . In the instant case, however, the evidence falls short of showing that the wife proved, by a preponderance thereof, any pattern of homosexual conduct on the part of the appellant sufficiently harmful to her health and demeaning to her self-respect as to constitute constructive desertion on the part of the husband.

There was testimony by the appellee that she had been ⁶⁷¹ informed by neighbors in the early winter of 1970 that her husband had sexually molested two young boys and, about the same time, had been told by her brother that the appellant had committed a sexual act on his person. The husband denied these accusations, but agreed to be tested by a clinical psychologist. He was tested on December 6, 1970. The psychologist’s report is found in the record.

The report is not conclusive but does find that no “test signs of psychosexual deviation were . . . specifically seen . . . .” The report also states that “evaluation of the wife herself would be important in finally arriving at what . . . happened . . . .” The appellant disclosed the results of the clinical test to his wife.. The appellee left the home on June 25,1971. In his opinion, the chancellor referred to the “husband’s conduct toward young males.” As we now show, the evidence to support this guarded derogatory observation is sparse at very best. Approximately three years before the appellee left the appellant, her husband had visited a tent in the back yard of a neighbor where two young boys, then ages 16 and 14, were present.

At the hearing in the court below, the 16 year old boy testified about an occurrence which took place in the tent at the time the appellant had visited there. The boy’s testimony was as follows: “Q And what happened? A He came over, and he sat down at first and then he laid down with his arm under him on my chest. * * * Q And what else, if anything, did he do? A Well, we just laid there for a while, and he would — he was breathing; as he would breathe, as he exhaled, his hand would move down each time.” On cross examination the boy was asked: “Q And then you indicated that he would ⁶⁷² breathe and his hand would just move a little bit; is that it?

A Yes. Q That was the extent of it? A Excúseme? Q Is that what happened?

His hand moved a little bit? A. Yes.” (Emphasis added.) The 14 year old boy who had been in the tent on the evening in question did not testify at trial, but his deposition was entered into evidence. His testimony was as inconclusive as that of the 16 year old, so far as proving the commission of a homosexual act on the part of the appellant. The witness testified as follows: “Q Would you state what happened?

A I was spending the night in the back yard and Mr. Richardson came over. It seemed harmless enough. We were just talking and, you know, carrying on a normal conversation, and he started lounging and laying back, putting his head on my lap and things like that. Really not too much occurred other than that because I felt uneasy about the whole situation — (Emphasis added.) At trial, there was testimony by one witness indicating that the appellant had committed a homosexual act during the course of his marriage to the appellee.

The appellee’s brother, age 34, testified that in the late fall or early winter of 1970, he told his sister, appellee, about an episode which occurred in late fall of 1965 or early winter of 1966. This witness testified that at that time he and the appellant had driven down to his parents’ place in St. Mary’s County to check the condition of the house and boat. The two men stayed overnight in the house and, because there was no central heat, slept together in one bed. The appellee’s brother testified that on that night the appellant tried to masturbate him.

He ⁶⁷³ further testified that he did not say anything to the appellant at the time of the incident and never repeated the story until he told it to his sister, the appellee, over four years later. The husband testified that he had never molested either of the two boys whose testimony was taken, and that he did not remember being in the tent with them. He also denied that he attempted at any time to masturbate his wife’s brother. There was also testimony that the appellant owned a boat which he chartered out to fishing parties and that he hired a 15 year old boy to serve as mate on the boat because his own stepson was not interested in the boat.

Appellant denied having engaged in sexual misconduct with this 15 year old boy or with any other male. In contending that the evidence established a pattern of homosexual conduct sufficient to justify the wife leaving the home, the appellee argued, and the court below was persuaded, that Crissman v. Crissman, 281 A. 2d 719 (Pa. Super. 1971), furnishes analogy for this case. We disagree.

Crissman involved an action for support brought by a wife who alleged that her husband had made immoral advances toward her 14 year old son by a previous marriage. In Crissman , there was testimony that: (1) on one occasion the husband asked the boy to go to bed with him; (2) at one time the husband, dressed only in his undershorts, lay down on top of the boy and after moving around became sexually aroused; (3) despite an ultimatum from the wife, another similar incident occurred; (4) the husband’s testimony not only failed to controvert the wife’s allegations but partially corroborated them. Crissman is clearly distinguishable. There was present in that case a course or pattern of undisputed, continuing sexual deviate conduct.

In the case at bar, there is testimony of a single homosexual incident which the appellant denied. Finally, Crissman was an action for support not for divorce. The Pennsylvania court stated that: ⁶⁷⁴ “The law is well settled in Pennsylvania that a wife seeking support has the burden of establishing that her husband’s conduct justified her withdrawal from the marital domicile or that the husband consented to the separation. However she need not establish facts which would entitle her to a divorce. 281 A. 2d at 721 (emphasis added).

We decline, therefore, to hold that the evidence of a single homosexual action during eleven years of a marriage is sufficient to demonstrate a “pattern of persistent [homosexual] conduct.” Murphy v. Murphy, supra at 460. To the extent that the chancellor’s opinion rested on an implied finding to the contrary, it was clearly erroneous. Accordingly, unless there is other evidence to support it, the trial court’s conclusion “that the husband’s conduct constituted indignities which were injurious to [the wife’s] . . . health, safety and self-respect” must fail. We find no such other supporting evidence in the record.

The chancellor referred to “lack of any sexual intercourse” between the parties during the last years of their marriage. On this point, however, the evidence indicates that there was no testimony on the part of the wife that her husband ever refused to have sexual intercourse with her. On the other hand, the husband testified that sexual relations between the parties ceased in 1970 because she refused him and that thereafter, although he frequently attempted to have relations, the appellee continued to refuse him up to the time she left the home on June 25, 1971. Absence of sexual relations will not suffice to establish constructive desertion; there must be a showing of a refusal on the part of the spouse who declines to participate.

Fortman v. Fortman, 250 Md. 355 , 243 A. 2d 517 (1968). No such showing was made by the appellee. The final evidentiary peg on which the chancellor based his conclusion that the wife was justified in leav ⁶⁷⁵ ing the home was the appellant’s “failure to disclose over the entire period of their married life that he had put the house in his name alone . . . .” As we point out in a subsequent section of this opinion, the fact that the house was conveyed to the husband alone does not appear to have been due to circumstances at which he contrived. Of course, the fact that he did not arrange for the conveyance to be made to him alone does not excuse his failure to disclose it to his wife.

Standing by itself, however, we cannot say that his lack of candor in failing to disclose the conveyance to him amounted to a “pattern of persistent conduct” which was so detrimental to the health of the appellee or so demeaning to her self-respect as to be intolerable. A lack of candor on the part of a husband, no more than “mere marital indifference or lack of demonstrated love, or rudeness or expressed desire to end the marriage relation, will not legally justify the other spouse’s departure from the marital household however intolerable such conduct may appear to be to the demeaned spouse.” Bryant, supra at 191 . The fact that the appellee may have viewed as intolerable her husband’s failure to disclose that their home was titled in his name alone during the years of their marriage is not sufficient to support the chancellor’s grant of a decree of divorce a mensa to her. The law of Maryland does not countenance the separation of husband and wife except for grave and weighty reasons.

Neff, supra at 133 ; see also Beavers v. Beavers, 255 Md. 450 , 258 A. 2d 203 (1969). For the reasons discussed in this section of our opinion, we hold that the trial court was clearly erroneous in awarding a divorce a mensa et thoro to the appellee on the ground “that the husband’s conduct constituted indignities which were injurious to her health, safety and self-respect.” ⁶⁷⁶ II THE APPELLANT WAS ENTITLED TO A DIVORCE A MENSA ET THORO ON THE GROUND OF DESERTION As stated, her husband’s conduct furnished insufficient cause for the appellee to abandon the home. Her own testimony indicated that she left with the firm intention of not returning and also showed that she refused to have sexual relations or cohabit with him from the summer of 1970 until she left on June 25, 1971. Accordingly, the husband was entitled to a divorce a mensa et thoro on the ground of desertion.

Ballan v. Ballan, 251 Md. 737 , 248 A. 2d 871 (1969); Binder v. Binder, supra. It was error for the chancellor to have dismissed the appellant’s cross bill praying a divorce on that ground. Upon the return of our mandate in this case, the trial court shall enter a decree awarding a divorce a mensa et thoro to the appellant, as prayed for in his cross bill. Ill ALIMONY, CUSTODY, SUPPORT AND ATTORNEY’S FEES .

In his final decree granting a divorce a mensa et thoro to the appellee, the chancellor ordered the appellant to pay her the sum of $275.00 monthly as alimony. With the collapse of appellee’s divorce action because of her failure to prove constructive desertion by the appellant, the appellee’s right to alimony is extinguished. Cf. Binder, supra at 406 . “In proceedings for permanent alimony or separate maintenance the same requirements as to proof, including corroboration, are necessary as where a divorce is sought.” Schriver v. Schriver, 185 Md. 227, 241 , 44 A. 2d 479 (1945).

With respect to the chancellor’s award of custody of the couple’s minor children to their mother, the appellee, the record shows that the appellant did not challenge the ⁶⁷⁷ appellee’s fitness or right to