Ricketts v. Ricketts

BELL, C.J. The issues presented by this case are: first, whether a spouse’s complaint for a limited divorce alleging constructive desertion based on lack of marital relations may be maintained ⁴⁸⁴ when both parties continue to live under the same roof, albeit not in the same bedroom and without cohabitation; and, second, whether, notwithstanding the parties’ continued living under the same roof, 1 a complaint for custody and visitation of the parties’ children may be maintained. We shall hold that, under these circumstances, all of the relief sought by the complaint is available to a complainant and, therefore, the complaint in this case should not have been dismissed. I. The appellant, Robert M. Ricketts, Jr. (sometimes, “the appellant” or “Mr. Ricketts”), and Mary C. Ricketts, the appellee (sometimes, “the appellee” or “Mrs. Ricketts”), were married on June 13, 1981 and that union produced three children: Robert III, now emancipated and, thus, not subject to this Court’s jurisdiction, Kathryn, who was born in 1987 and is emancipated, and Lawrence, who was born in 1989. It is unclear from the record when the parties’ relationship began to deteriorate, but at some point, according to Mr. Ricketts, Mrs. Ricketts “forced [him] out of the bedroom, thus terminating their marital relationship.” Since that time, he alleges, the parties have not had marital relations, although they have continued to reside in the marital household with their children, albeit in separate bedrooms.

On July 16, 2002, Mr. Ricketts filed a complaint seeking a limited divorce and custody of their two minor children. He alleged, as grounds for the divorce, constructive desertion, offering in support, Mrs. Ricketts’s alleged denial of marital ⁴⁸⁵ relations. On October 16, 2002, Mrs. Ricketts filed a Motion to Dismiss, 2 arguing that because the parties continued to live under the same roof, had not separated and, therefore, were not living separate and apart, 3 Mr. Ricketts’s complaint for divorce was “fatally defective” and, thus, “must be dismissed.” She made the same argument with regards to Mr. Ricketts’s complaint for custody, stating that it too was “fatally defective ... because the parties had not separated and were not living apart at the time of the filing of the Complaint.” Responding to the appellee’s motion, the appellant admitted that the parties were still living together in the same house, under the same roof, 4 but stated that this did not affect the validity of his complaint or the availability of the relief sought, i.e. limited divorce and custody. The Circuit Court for Carroll County held a hearing on the Motion to Dismiss and the Response to the Motion to Dismiss.

The court granted the appellee’s Motion to Dismiss, without explanation. Mr. Ricketts timely noted an appeal of the judgment dismissing his complaint to the Court of Special Appeals. While the case was pending in that court and prior to any proceedings, this Court, on its own initiative, issued the writ of ⁴⁸⁶ certiorari. Ricketts v. Ricketts, 380 Md. 230 , 844 A.2d 427 (2004).

II

A limited divorce, 5 which may be decreed for a limited or an indefinite period, Md.Code (1984, 2004 Repl.Vol.), § 7-102(c) is “one from bed and board. It grants unto the injured spouse the right to live separate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds.” Courson v. Courson, 213 Md. 183, 188 , 129 A.2d 917, 920 (1957). See Thomas v. Thomas, 294 Md. 605, 609, 618 , 451 A.2d 1215 , ⁴⁸⁷ 1217, 1222 (1982), noting, in addition, that “[t]his Court has said that ‘a divorce a mensa et thoro is practically nothing more than judicial permission to live separate and apart,' ” quoting Dougherty v. Dougherty, 187 Md. 21, 31 , 48 A.2d 451 (1946).

This is in contrast to an absolute divorce, 6 which effects a complete severance of the marital bond and entitles either of the parties, or both, to remarry. Crise v. Smith, 150 Md. 322, 326 , 133 A. 110, 111 (1926) (divorce a vinculo matrimonii ends all rights of either spouse dependent on marriage). See also Black’s Law Dictionary, Divorce, (8th Ed.2004), equating an absolute divorce with a divorce a vinculo matrimonii. Among the grounds for a limited divorce is desertion.

Md.Code (1984, 2004 Repl.Vol.), § 7-102(a)(3) of the Family Law Article. 7 Desertion may be constructive or actu ⁴⁸⁸ al. See, e.g., Walker v. Walker, 209 Md. 428, 431 , 121 A.2d 195, 198 (1956). We have defined actual desertion as “the voluntary separation of one of the married parties from the other, or the refusal to renew suspended cohabitation, without justification either in the consent or the wrongful conduct of the other party ... [Furthermore,] the separation and intention to abandon must concur, and desertion does not exist without the presence of both. The two need not begin at the same time, but desertion begins whenever to either one the other is added.” Boyd v. Boyd, 177 Md. 687, 688 , 11 A.2d 461, 464 (1940) (citations omitted). What is required to constitute constructive desertion was addressed in Scheinin v. Scheinin, 200 Md. 282 , 89 A.2d 609 (1952).

In that case, we said “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 [(1952)]. 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.

Polley v. Polley, 128 Md. 60 , [66,] 97 A. 526 , [529 (1916)]; Schwartz v. Schwartz, 158 Md. 80, 90 , 148 A. 259 [, 262-63 (1930)]; Singewald v. Singewald, 165 Md. 136 , [147,] 166 A. 441 [, 446 (1933)]; Kline v. Kline, 179 Md. 10 , [13,] 16 A.2d 924 [, 925 (1940)]; Fischer v. Fischer, 182 Md. 281 , [286,] 34 A.2d 455 [, 457 (1943)]; Hockman v. Hockman, 184 Md. 473 , [478,] 41 A.2d 510 [, 513 (1945)]; Miller v. Miller, 185 Md. 79 , [82,] 42 A.2d 915 [, 917 (1945)]; Bradshaw v. Bradshaw, 189 Md. 322 , [325,] 55 A.2d ⁴⁸⁹ 719[, 720 (1947)]; Gold v. Gold, 191 Md. 533, 539 , 62 A.2d 540 [, 543 (1948)].” Id. at 290, 89 A.2d at 612-13 . See Murphy v. Murphy, 248 Md. 455, 460 , 237 A.2d 523, 525-526 (1968); Ballan v. Ballan, 251 Md. 737, 740-743 , 248 A.2d 871, 872 (1969), both cited by Deckman v. Deckman, 15 Md.App. 553, 560 , 292 A.2d 112, 115-116 (1972), for the proposition that it is constructive desertion when the misconduct of one spouse “makes it impossible for the other to continue to live with the erring spouse without loss of his or her health, or self respect or gives reasonable apprehension of bodily injury will justify the innocent spouse in leaving the other on the grounds of ‘constructive desertion.’ ” Unlike actual desertion, where it is the party deserted who has the cause for divorce, in instances of constructive desertion, it is the departing party who has the cause of action for divorce. To be sure, both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home. We have held, however, that constructive desertion may occur where both parties continue to live under the same roof.

In Scheinin , we were emphatic and clear: “It is beyond question that there may be a desertion although the husband and wife continue to live under the same roof. For desertion, as applied to husband and wife, signifies something more than merely ceasing to live together. It means ceasing to live together as husband and wife.” Id., at 290-91 , 89 A.2d at 613 . See Mower v. Mower, 209 Md. 413, 417 , 121 A.2d 185, 186-187 (1956); Kelsey v. Kelsey, 186 Md. 324, 326 , 46 A.2d 627, 628 (1946); Dotterweich v. Dotterweich, 174 Md. 697 , 200 A. 523, 523-524 (1938); Fries v. Fries, 166 Md. 604, 607-608 , 171 A. 703, 704 (1934); Klein v. Klein, 146 Md. 27, 33 , 125 A. 728, 730 (1924); Roth v. Roth, 145 Md. 74 , 125 A. 556 (1924); Fleegle v. Fleegle, 136 Md. 630, 633 , 110 A. 889, 890 (1920).

We have explained: “the true doctrine is believed to be that the statutory term ‘desertion,’ as applied to husband and wife, means a cessa ⁴⁹⁰ tion of the marital relation; and this doctrine is in accord with the general principles of the divorce law ... [d]esertion implies something more than merely ceasing to cohabit or live together; for, as applied to husband and wife, it means the ceasing to live together as husband and wife.” Fleegle, 136 Md. at 634 , 110 A. at 890 . See also Crumlick v. Crumlick, 164 Md. 381, 381 , 165 A. 189, 189 (1933). Thus, “it is unquestionably the law in this State that permanent refusal of either the husband or the wife to have sexual intercourse with the other spouse, from no consideration of health or other good reason, constitutes matrimonial desertion although the parties continue to live in the same house.” Mower v. Mower, 209 Md. 413, 417 , 121 A.2d 185, 186-187 (1956) (citations omitted). The fact that the spouses sleep in separate bedrooms or that they have ceased engaging in sexual relations does not per se establish constructive desertion, however.

Whitehurst v. Whitehurst, 257 Md. 685, 690 , 264 A.2d 822, 825 (1970); Parsons v. Parsons, 255 Md. 602, 604 , 258 A.2d 437, 438 (1969); Fortman v. Fortman, 250 Md. 355, 360 , 243 A.2d 517, 520 (1968); Jones v. Jones, 186 Md. 312, 314 , 46 A.2d 617, 618 (1946); Wysocki v. Wysocki, 185 Md. 38, 41 , 42 A.2d 909, 910 (1945); Ruckle v. Ruckle, 141 Md. 207, 214 , 118 A. 472, 474 (1922). Additionally, when a husband and wife continue to live together without marital relations and yet neither makes any effort towards reconciliation, it is presumed that both spouses prefer to live under such circumstances, and, therefore, neither has a cause for divorce on the grounds of constructive desertion. Davey v. Davey, 202 Md. 428, 432 , 96 A.2d 606, 608 (1953). In the instant case, it is alleged by the appellant that Mrs. Ricketts denied him marital relations and forced him from the marital bedroom.

Under Md.Code (1984, 2004 Repl. Vol.), § 7-102(a)(3) of the Family Law Article and, pursuant to the aforementioned case law, if those allegations are established, the appellant is able to prove that they are true, Mr. Ricketts has cause for a limited divorce, notwithstanding that he and Mrs. Ricketts are still living under the same roof, those ⁴⁹¹ allegations, and the necessary inferences, may sufficiently establish, for pleading purposes, constructive desertion. To be sure, as we have seen, Mrs. Ricketts disputes Mr. Ricketts’s entitlement to a limited divorce on the grounds of constructive desertion. It is her view and position that there is a “fatal flaw” in the appellant’s allegations.

That flaw is, she submits, the allegation that the parties are living under the same roof, not, therefore, separate and apart. 8 Constructive desertion, the appellee contends, in other words, may only be established when the parties are living separate and apart, that, in the absence of separation, there is no ground for divorce on that ground. Accordingly, her motion to dismiss. This is thus an appeal from a judgment granting a motion to dismiss. As we made clear in Afamefune ex rel.

Afamefune v. Suburban Hosp., Inc., 385 Md. 677, 683, n. 4 , 870 A.2d 592 , 595 n. 4 (2005), “A motion to dismiss for failure to state a claim tests the sufficiency of the pleadings. Md. Rule 2-322(b)(2); see Converge Services Group, LLC v. Curran, 383 Md. 462, 475 , 860 A.2d 871, 878-79 (2004) (‘consideration of the universe of “facts” pertinent to the court’s analysis of the motion are limited generally to the four corners of the complaint and its incorporated supporting exhibits, if any’); Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary, 206 (3d ed.2003) (‘[t]he object of the motion is to argue that as a matter of law relief cannot be granted on the facts alleged’).” Thus, when reviewing the grant of such a motion, a court “must assume the truth of all well-pled facts in the complaint as well as the reasonable inferences that may be drawn from ⁴⁹² those relevant and material facts.” Porterfield v. Mascari II, Inc., 374 Md. 402, 414 , 823 A.2d 590, 597 (2003) (indicating that the we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party). See Benson v. State, 389 Md. 615, 626 , 887 A.2d 525, 531 (2005); Bobo v. State, 346 Md. 706, 707-708 , 697 A.2d 1371, 1372-1373 (1997); Allied Invest. Corp. v. Jasen, 354 Md. 547, 555 , 731 A.2d 957, 961 (1999) (reviewing motions to dismiss, trial and appellate courts “assume the truth of all well-pleaded, relevant, and material facts in the complaint and any reasonable inferences that can be drawn therefrom.”); Bennett Heating & Air Conditioning, Inc., 342 Md. 169 , 674 A.2d 534 (1996) (“the facts to be [considered are] those that are well pleaded by the plaintiffs, including those facts that may fairly be inferred from the matters expressly alleged”); Board of Education v. Browning, 333 Md. 281, 286 , 635 A.2d 373, 376 (1994) (in evaluating a motion to dismiss, the court “must accept as true all well-pleaded facts and allegations in the complaint”); A.J. Decoster Co. v. Westinghouse Electric Corp., 333 Md. 245, 249 , 634 A.2d 1330, 1332 (1994) (“the truth of all well-pleaded relevant and material facts as well as all inferences that reasonably can be drawn therefrom” must be assumed).

Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff. Allied Invest. Corp. v. Jasen, 354 Md. at 555 , 731 A.2d at 961 ; Bobo v. State, 346 Md. at 709 , 697 A.2d at 1373 ; Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624, 630 (1995). “On appeal, a reviewing court must determine whether the trial court was legally correct, examining solely the sufficiency of the pleading.” Benson v. State, 389 Md. at 626 , 887 A.2d at 531 . There is no contention by the appellee that the allegations made by the appellant, and the permissible inferences drawable therefrom, are not material or relevant or that they involve trivial matters.

Nor is there any contention made that the allegations are not well-pled. Accordingly, viewing the wellpled allegations and the permissible inferences as true and in the light most favorable to the appellant, the appellant’s ⁴⁹³ complaint should not have been dismissed. The trial court erred in doing so. The appellant does, however, have the burden of proving the facts he has alleged, Owings v. Owings, 148 Md. 124 , 128 A. 748, 749 (1925); Lent v. Lent, 202 Md. 240, 244-245 , 96 A.2d 14, 16 (1953), as well as of introducing evidence of his attempt to renew marital relations and of Mrs. Ricketts’s intent to end the marriage, Moran v. Moran, 219 Md. 399 , 149 A.2d 399 (1959), and must also properly corroborate his allegations.

Md.Code (1984, 2004 Repl. Vol.), § 7-101(b) of the Family Law Article.

III

It is undisputed that the Circuit Court has jurisdiction to determine the custody and support of children and establish the visitation rights of the non-custodial parent. Md.Code (1984, 2004 Repl.Vol.) § 1-201 of the Family Law Article. 9 And that jurisdiction exists without regard to whether one of the parties has been granted, or is entitled to, a limited divorce. See Koger v. Koger, 217 Md. 372, 376 , 142 ⁴⁹⁴ A.2d 599, 601 (1958) (noting that Md.Code (1957), Art. 16, § 25 made it plain that the Chancellor must retain jurisdiction for the purpose of deciding custody, when custody is prayed, even where a divorce is denied); Smith v. Smith, 216 Md. 141, 145 , 140 A.2d 58, 60 (1958); Mower, 209 Md. at 419 , 121 A.2d at 187 ; Sause v. Sause, 192 Md. 88, 93 , 63 A.2d 632, 634 (1949); Stirn v. Stirn, 183 Md. 59, 64 , 36 A.2d 695, 697-698 (1944); Crumlick v. Crumlick, 164 Md. 381, 387-388 , 165 A. 189, 192 (1933); Barnard v. Godfrey, 157 Md. 264 , 145 A. 614 (1929); Hill v. Hill, 79 Md.App. 708, 711-12 , 558 A.2d 1231, 1233 (1989). Indeed, prior to the amendment of the statute in 1929, the issue in this case would appear to have been decided.

In Barnard, supra, referring to Md.Code (1924) Art. 16, § 80, 10 this Court observed: “From this language it will be seen that courts of equity in this state have full power, and it is their duty, to determine ⁴⁹⁵ who shall have the custody, control and guardianship of minor children, and who shall be charged with their maintenance and support, when applied to by any of the persons mentioned in the statute; and this without regard to the question of whether or not the parents of said child or children have been divorced or are living apart.” Id., at 267, 145 A. at 615 . Pertinent to the issue of parental custody over minor children, a provision addressing the subject was added to the Maryland Code in 1929. In addition to acknowledging and mandating that “[t]he father and mother are the joint natural guardians of their minor child” and charging them equally with its support, care, nurture, welfare and education, Acts of 1929, ch. 561 11 provided, with respect to the award of custody to a parent, that “[wjhere the parents live apart, the court may award the guardianship of the child to either of them.” Captioned, “Parent and Child,” it was effective June 1, 1929 and was codified at Md.Code (1924) Article 72A, § 1. As a result of Code Revision, the applicable section now is § 5-203 of the Family Law Article, having been re-codified without substantive change, Acts of 1986, ch. 65; Taylor v. Taylor, 306 Md. 290 , 301 n. 9, 508 A.2d 964 , 969 n. 9 (1986).

As pertinent ⁴⁹⁶ to the issue this case presents for decision, § 5-203(d) 12 provides: “(d)(1) If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents. “(2) Neither parent is presumed to have any right to custody that is superior to the right of the other parent.” It is the fact that § 5-203(d)(1) uses the proviso, “if the parties live apart,” when addressing a court’s award of custody to a parent that is at the heart of the appellee’s argument and, apparently, was the basis for the Circuit Court’s decision to dismiss the appellant’s complaint for custody. The appellee thus argues that this introductory proviso limits the court’s power to award custody to one parent over the other to those situations in which the parents are living apart, i.e those in which they are actually separated and not living under the same roof. She maintains this position notwithstanding § 1-201 and its clear and simple, though general, statement of the court’s jurisdiction in parent-to-parent custody matters. The appellant sees the matter quite differently.

He submits, on the contrary, that § 1-201 does more than simply describe the court’s jurisdiction; it instead is a grant of power, imbuing the courts with the responsibility to determine custody, visitation, and support regardless of whether the parents are divorced or physically separated. He relies on this Court’s cases, decided both before and after the passage of Acts of 1929, ch. 561, reviewing the Circuit Courts’ decisions with respect to parental custody where the parents were still living under the same roof. The appellant has the better of the argument. ⁴⁹⁷ As we have seen, it cannot be doubted that the fact that the parties are living under the same roof, have not physically separated, is not, alone, sufficient to justify the court in refusing to grant either party a divorce. On the contrary, as we have also seen, this Court has held, see Kelsey, 186 Md. at 326 , 46 A.2d at 628 : “Abandonment, within the contemplation of the divorce statute means something more than merely ceasing to live together; it means a cessation of the marital relation.

Thus we recognize that a desertion may exist although the husband and wife live under the same roof.” If a divorce