Sackman v. Sackman

Henderson, C. J., delivered the opinion of the Court. This appeal is from a decree of the Chancellor dismissing a bill for divorce a mensa and custody of a child, filed by a husband on the ground of the wife’s desertion. The parties were married in Germany on July 4, 1957. He was a career member of the United States Army, a sergeant 41 years of age, and she was a German girl, 19 years of age.

The marriage was performed by a civil ceremony and again by a religious ceremony at Frankfurt, attended by her parents and friends. He was ordered to duty at Western Maryland College, Westminster, Maryland, and there resided at 60 Washington Road for more than five years. A child was born to the parties on July 8, 1958. On December 3, 1962, while he was on a hunting trip, she returned to her parents in Germany, taking the child with her.

She left a letter stating that she had planned to leave for some time, and that her decision was final. She did not accuse him of any marital wrongdoing. The husband filed the bill for divorce on January 31, 1963. She was duly served with a copy of the bill, and did not file an answer or otherwise contest it.

In a second letter put in evi ²³⁹ dence by the husband, she admitted receiving the bill and order of publication. She stated that she would not come back to live with a man she did not love. Two other witnesses, called by the husband, testified that she had told them she would never return. It seems clear that a case of desertion was made out.

The Chancellor, however, denied relief on the ground that the wife’s first letter, put in evidence, showed that she had “a meritorious defense to this action.” A passage in that letter read: “* * * you know that the day I found out you had a daughter getting married which was older than what I was our whole marriage changed — you know it, we often talked about it.” She did not say she was unaware of the fact that her husband had been previously married and divorced, or that there had been a child of that marriage. He testified that he had told her and her parents how old he was prior to the marriage, that he had been previously married in 1946, and divorced in 1955, and that he had a daughter by that marriage. This, daughter was seventeen at the time the wife left, and the wife was twenty-five. He testified that the wife knew he received letters from the daughter, and she had purchased for him dresses and other presents for the daughter.

We cannot find on the record that the wife had a meritorious defense in fact or in law. Quite apart from condonation, which is argued by the appellant, it seems clear that to justify a desertion a spouse