Twigg v. Twigg

Burke, J. delivered the opinion of the Court. The appellant filed a bill for a divorce a vinculo matrimonii from his wife upon the ground of abandonment. From the decree of the lower Court refusing to grant the divorce he has appealed. The question to be decided is: Does the proof show that there had been an abandonment of the husband by the wife within the meaning of section 36 Article 16 of the Code of 1904 ?

This section provides that the Court may decree an absolute divorce when it shall be satisfied by competent testimony that the party complained against has abandoned the party complaining, and that such abandonment has continued uninterruptedly for at least three years, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation; and by section 4, Article 35 of the Code it is declared that no divorce shall be granted upon the testimony of the plaintiff alone, but in all such proceedings testimony in corroboration of that of the plaintiff shall be necessary. The ground upon which the divorce is asked being statu ⁶⁷⁸ tory, it was necessary for the plaintiff to allege and prove each element of the statutory cause relied on in order to obtain relief. Abandonment, to constitute a ground for divorce a viñado matrimonii under the statute, must be the deliberate act of the party complained of, done with the intent that the marriage relations should no longer exist. Lynch v. Lynch, 33 Md. 328 ; Gill v. Gill, 93 Md. 652 .

The evidence of this abandonment, as was said by Chief Justice Shaw in Gregory v. Pierce, 4 Metcalf, 479, “may be proved by a great variety of circumstances, leading with more or less probability to that conclusion, as, for instance, leaving his wife with the declared intention never to return; marrying another woman, or living in adultery abroad; absence for a long time, not being necessarily delayed by his occupation, or business, or otherwise; making no provisions for his wife, or wife and family, being of ability to do so; providing no dwelling or home for her; or prohibiting her from following him; and many other circumstances tending to prove the absolute desertion above described.” In Gill's case, supra, which was a suit by the wife against her husband, and' where facts and circumstances showing abandonment were strong and convincing, Judge Pearce quoted the above language of Chief Justice Shaw, and said that when the proof in the case before the Court was tested by that rule it was ample to warrant a decree of absolute divorce. After having reviewed the evidence, he concludes the opinion in these words: “There have been eighteen years of uninterrupted separation and failure to provide a support for his wife, unexplained by the necessities of any business or occupation, or by inability due either to misfortune or natural incapacity, and such failure can only be regarded therefore as willful and deliberate. A husband who can endure for eighteen years a voluntary separation from his wife, can endure it throughout life, and one who has for that period proved faithless alike to his marriage vows and to his legal obligations resulting therefrom cannot, in our opinion, demonstrate more clearly his intention to disregard them to to the end.” ⁶⁷⁹ The appellant contends that upon the authority of that case the decree of the lower Court should be reversed; but in this we cannot agree, because, in our opinion, the essential elements upon which he relied for relief are not supported by the proof. The evidence shows that the parties were married at Salisbury, Maryland, in 1877, and lived together until the spring of 1900.

They had seven children — three girls and four boys, all of whom were minors at the date of the separation. The wife, against whose character not one word is spoken in the testimony, left home and took the children with her.- She went first to Salisbury, and afterward she and the children came to Baltimore, where they now reside. The plaintiff has also been living in Baltimore for about four years. There is no evidence in the case, except that of the plaintiff, as to the circumstances under which the wife left home, or what caused her to go.

It is unreasonable to conclude that a wife would abandon her home, and take upon herself