Taylor v. Taylor

Sybert, J., delivered the opinion of the Court. On November 8, 1963, Jack Lynn Taylor sued his wife, Janis Horner Taylor, in the Circuit Court for Somerset County for a divorce a vinculo matrimonii on the ground of constructive desertion, based upon her refusal to have sexual relations with him after February, 1962. The wife, who did not file a cross bill, raised the defense of recrimination, claiming that her husband had committed adultery and that he had deserted her. The Chancellor dismissed the bill of complaint after a hearing on the merits, holding that the complainant had not met his burden of proof, and he appealed.

The husband testified that nearly three years prior to trial his wife had moved into a separate bedroom in their home in Princess Anne, Maryland, because she could not sleep in a room with an open window. He said he had to sleep with an open ³¹⁴ window because of a sinus condition. He further testified that from February, 1962, sometime after his wife moved into the separate bedroom, to the time of trial his wife had refused to have marital relations with him and that she indicated to him that she suspected he was having sexual relations with another woman, though she would not discuss this with him. According to the husband he tried several times to effect a reconciliation, but failed each time.

After one such failure the husband, on the advice of counsel, moved from the home in September, 1963, and has remained away ever since. He denied any infidelity. The wife testified that she originally moved into a separate bedroom because she felt it detrimental to her health to sleep with a window open. She further stated that sometime later, “between two and three years” prior to trial, she refused to have conjugal relations with her husband and has so refused since then because on one occasion, as she put it, “his underwear showed evidence that he had been near a woman.” She said that when she mentioned her suspicions to her husband he denied any infidelity and she dropped the subject.

That part of her defense of recrimination which was based on the husband’s alleged adultery was supported only by the wife’s testimony as to the discovery of the “evidence” on his underwear and by her and her son’s testimony that they had observed her husband in an automobile with an unidentified woman late one night. The only witness who testified, other than the parties, was the seventeen-year-old stepson of the appellant (the wife’s son by a former marriage). Called by the husband, he merely testified that for two or three years the appellant and the appellee had occupied separate bedrooms in the house where he also lived. Called later by the wife, the youth described the circumstances under which he and his mother had seen the appellant in an automobile with a woman.

Manifestly, the husband has not established his ground of constructive desertion based on the refusal of his wife to have marital relations with him for the statutory period of time because his testimony was not sufficiently corroborated. Maryland Rule S 75 (which first became effective as Rule 1190 f on January 1, 1959) provides: ³¹⁵ “A final decree of divorce shall not be passed upon the testimony of the plaintiff alone, nor shall the admissions of a defendant in an action for divorce be taken of themselves as conclusive proof of the facts charged as the ground of the action, but in all cases testimony of a person not a party in corroboration of the plaintiff shall be required.” The testimony