Smith v. Smith

Markell, J., delivered the opinion of the Court. This is an appeal from a decree granting the wife a divorce a mensa. The parties were married in 1924, when they were both under twenty. They have two sons, both adults and married.

Since 1940 they have frequently quarreled. One or more previous bills for divorce were filed. They both live in the same house, not now as husband and wife. When they had an “argument”, she would strike him and he would strike her, apparently without lasting harm to either.

His net earnings have ranged from zero to five hundred dollars or a thousand dollars a year. They both were practically supported by his mother, ⁶³² whose second husband’s death in 1950 has reduced her income. For some years the mother had employed the husband at twenty dollars a week at a tavern which she sold about 1945. The mother owns, but does not collect, a ground rent on the house owned by husband and wife as tenants by the entireties.

The mother gave the wife forty dollars a week, allowed the husband to collect a rent of two hundred and fifty dollars a month from a property of the mother’s, and frequently paid bills for him and made him other gifts. The husband suffers from deafness and, he says, from heart trouble and stomach ulcers. The wife is sceptical about his ill health, but the trial judge did not definitely discredit it. He owns a boat on which he takes out fishing parties, for hire, in Florida in winter and from Annapolis in summer.

For some years he has gone to Florida (without his wife) in winter, for his health or for fishing or for both, and has frequently gone fishing in the boat in summer, staying days at a time. ” In these respects his conduct in 1950, apart from statements ascribed to him by the wife, was not appreciably different from their manner of living in former years. Neither husband nor wife drew a prize in their matrimonial lottery. For industry and either zeal or capacity to support his wife his pecuniary value is low. In his testimony he was disposed to rhapsodize about their happy home and family — if the wife would refrain from excessive drink — but there seems to be little in him to hold a wife’s affection.

She admits she drinks beer, but denies that she becomes intoxicated. If, as she says, she could drink eight bottles, at a protracted sitting, without becoming intoxicated, it may be that, as the husband says, their bedroom smelled like a brewery and she was not a pleasant companion. However, neither non-support nor drunkenness is a ground for divorce. In the bill of complaint, filed October 2, 1950, the wife alleged that on June 23, 1950 the husband deserted her without just cause or reason, declaring his intention to live with her no longer, that this abandonment and ⁶³³ desertion has continued uninterruptedly until the present time, is deliberate and final and the separation is beyond any reasonable hope or expectation of a reconciliation.

At the trial she testified in support of these allegations. The act of desertion was “He packed his clothes and went down on his boat to Annapolis”, as he did many times before and since, and apparently intended to do before they quarreled the night before. She says, “He said he was through, he was not going to live with me. There was no law to make him live with me, and he just left.” He says he came home the night before and found her in bed drunk and the bedroom smelling like a brewery.

She admits she had been drinking, but denies that she was drunk. He says he had some work to do on the boat, and came back home two or three days later after he had done it. She says, “He was down there a couple of weeks”, and then “would come up once a week and get clean clothes and a shower, and go right on down again.” One night the last week of August she came home about two or three o’clock, had no key and had to climb in through the back window. Her husband came in. “He gave me the devil.

We had come in and we were both feeling good”; she had been drinking. Having testified that the desertion on June 23, 1950 had “continued uninterruptedly until the present time” and on cross-examination, that on the August night “nothing [else] that I can recall” happened, she was asked, “You say you don’t recall anything else that happened?” She answered, “* * * Yes,