Walker v. Walker

Hammond, J., delivered the opinion of the Court. This appeal is by a husband from a decree granting his wife a divorce a mensa on her cross bill in opposition to his bill for the same limited relief. Each bill was based on constructive desertion but the testimony on behalf of each showed, if anything, actual desertion. The cross bill was prompted by the chancellor’s refusal to admit testimony as to the wife’s claim to a share of the proceeds of the sale, ten years before, of a house owned by the couple.

The parties were married in 1930 and lived in Baltimore until 1944, when after the death of her mother, they sold their house and moved, with their daughter, into the house of her father in Cecil County. The marriage, seemingly, was never a particularly happy one. The wife complained of the husband’s selfishness, particularly of his interests and activities, including trips, which she did not share, and of his supposed attentions to other women. Often there were periods when the couple would not speak to each other.

The pattern into which the marriage had settled continued, without significant dislocation, until 1954, when the events which gave rise to the litigation before us took place. Three days after Christmas, 1953, there was a quarrel because he had either been unable or unwilling to accompany her on a visit to their daughter, now married. The wife then went without him, and this he resented. The trivial disagreement ended in a joint trip to her lawyer on January 7, 1954.

The parties disagree as to who urged whom to visit the lawyer but are agreed that during the consultation, each of them discussed their decision that there be a divorce and that the husband was told by the lawyer, with the apparent agreement of the wife, that he was free to leave if he would ⁴³⁰ pay her $130.00 a month, approximately one-third of his take home pay. After the visit to the lawyer, the couple, for five days, slept in the same double bed they always used and then, on January 12, the wife left the bed and the bedroom, never to return. The only reason she gave, or has since given, for doing this was that the night before the husband had told her he had cut off her charge accounts and had demanded that she return to him her charga-plates. This she says she took to mean that he no longer wanted her as his wife.

From January 12 to March 23, the couple continued to live in the same house, occupying separate bedrooms. Relations deteriorated not only between them but also between the husband and the father-in-law and the brother-in-law. On March 20, the husband was given until April 1 to decide whether he would pay $50.00 a month rent and $10.00 a week board to his father-in-law, although he was then giving his wife $130.00 a month. Suddenly, on March 23, the father-in-law summarily ordered the husband from the house that very night.

At this point the husband and wife each called a neighbor to hear the father-in-law repeat his demand that the husband immediately get out of the house. The wife remained with her father and the husband went to live in Washington, a place of residence convenient to his work as a railroad passenger conductor on the Washington to New York run. The husband testified, with corroboration, that he asked his wife to return to the bedroom on three occasions. She admits these invitations but denies their genuineness.

There was testimony, also with corroboration, that on the night he was ordered from the house the husband invited the wife to come with him to Washington, and that he repeated his invitation on several other occasions, saying