Smith v. Smith

Henderson, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Wicomico County, dismissing a cross-bill of complaint filed by a wife against her husband on the ground of abandonment and desertion. There was no appeal by the husband from the decree dismissing his original bill alleging desertion. It would serve no useful purpose to discuss the testimony in detail.

The parties are each 52 years of age, and have been married for 32 years. Their son is grown and not living with his parents. The parties own jointly a property at 306 East Church Street, Salisbury, Maryland, where they resided until October 1948, when Mrs. Smith left the house and took up her residence at 247 West Main Street. Mrs. Smith operated a furniture store in the front part of the dwelling on Church Street and a dress shop on Main Street.

Her claim of desertion, or constructive desertion, is based upon the contention that there was a final separation on June 20, 1947, when the husband locked her out of the house. ²²¹ It seems clear that the relations of the parties were not harmonious for some years prior to 1947, but marital relations continued until a short time prior to June 20, 1947, when Mr. Smith injured his knee. She then moved into an adjoining room because, she testified, he was nervous and restless at night. There is no evidence that he raised any objections. She testified that on June 20, 1947 and on many occasions thereafter when she attempted to enter the house from the rear door, she found that he had bolted it from the inside, and she was unable to arouse him.

He testified that the bolt had been placed on the door as a protection against burglars; that he was quite deaf and did not hear her knocking; that whenever he heard her, he would get up and let her in; that she had keys to the other doors. She testified that she “took the screwdriver and hammer” and “tore off one end of the bolt. He put it back on again. And the next time I demolished the catch.

I didn’t intend for him ever to be able to use that bolt again to keep me out of my house.” The lockout was evidently not in effect