Whitehurst v. Whitehurst

Barnes, J., delivered the opinion of the Court. The question presented for our decision in this suit by the appellant, Dorothy P. Whitehurst, the plaintiff below (wife), in the Circuit Court for Carroll County (Weant, J.) for a divorce a mensa et thoro against her husband, the appellee, Robert H. Whitehurst, on the ground of desertion is whether or not the lower court was clearly in error in holding that the husband had established the defense of recrimination because of the wife’s alleged unjustified refusal of marital relations with her husband. The parties were married in Carroll County on April 19, 1952. Three children were born as a result of the marriage, i.e., Patricia Ann on September 21, 1957, Deborah Jean on August 14, 1958, and Roberta Harrison on June 4, 1960.

After living in South America for several years, the parties returned to Westminster, Carroll County, and have resided there since that time. Both parties testified in regard to marital discord in recent years prior to the filing of the bill of complaint. The husband testified that the wife had left him on two occasions without his knowledge — the first occasion being in 1962 when he returned home from a trip out of the state for a week and did not find his wife at home but at the “shore” with the children; the other occasion being at an unnamed date when the wife was in Cumberland, where she apparently visited during the summers. The husband also complained that his wife was absent from the home with the children on some weekends during the last few months the parties were living together.

The husband did not suggest that there was any marital infidelity on the part of the wife. The wife, on the other hand, denied ever leaving the home without advising her husband where she was, ex ⁶⁸⁷ cept for one weekend in 1968 and that the husband had asked her no questions in regard to the details of this occasion. The wife, on cross-examination, testified that her husband had been “running out on me” in 1961, had admitted to her that he was having extra-marital relations at that time, that they consulted a marriage counsellor and that “she forgave him and took him back.” The husband did not contradict this testimony of the wife. Both parties testified that the husband’s “special job” for his employer in Salisbury in 1968 was a source of marital conflict.

The wife testified that the five day a week assignment had “caused a lot of argument with us”; the husband stated that he “was working very hard in Salisbury and then coming home and have to face this and it kept getting worse and worse. . .” It was during 1968 that the wife became quite suspicious of her husband’s conduct. She testified that the husband refused to take her anywhere; that he came home late at night; that she found dirty handkerchiefs indicating “that he had not been alone”; that she discovered a supply of prophylactics in the basement where her husband kept them and some in his wallet — which he did not need to use in the marriage relation, the wife having had a hysterectomy — and that early in August, 1968, her husband came home at 8:00 A.M., undressed in the children’s bathroom which he had never done before, and used alcohol “to clean himself.” This testimony of the wife was uncontradicted. In November 1968, the wife testified that her husband asked her for a divorce and stated that “he was doing what he wanted to do” and that “he intended to keep on doing it.” The husband did not contradict this testimony by the wife; indeed, he admitted that he told his children (all girls, at that time, between the ages of 9 and 12) that he was “in love with another woman.” There is substantially no dispute in regard to the husband’s departure from the marital abode. On December 26, 1968, the wife had an appointment for one of the children with a physician at 9:00 A.M. Her daughter by ⁶⁸⁸ a previous marriage was to drive them to the physician’s office and obtained the husband’s keys to move his automobile from the driveway.

The husband was advised of the wife’s plans and she testified that “He said nothing about his not being here when we returned.” Upon their return, the husband’s clothes were gone and he had left his wedding band on the wife’s dressing table “on top of a garbage bill. . . .As if it was part of garbage.” He also left a check for $60.00, together with a note for the children which stated in part: “Please try to understand why I must do what I have done.” This testimony was corroborated by the wife’s daughter by her previous marriage and was not denied by the husband. The husband’s defense of recrimination was based upon his testimony that his wife left his bedroom in the middle of the summer of 1968 and occupied a separate bedroom in the home. He stated that she had complained of his watching television at a late hour and that he had replied that “. . . if you don’t like it why don’t you go in the other room.” It was his best recollection that their last marital relations were in the midsummer of 1968. On direct examination he testified that he had requested marital relations at “various times,” but on cross-examination he admitted that his “sexual desires have been taken care of elsewhere.” The wife admitted that there had been no marital relations since July 1968; but she was not questioned in regard to whether or not any demands for relations occurred after that time.

The wife testified that the husband was spending five days a week in Salisbury and spent Saturdays and some Sundays helping a neighbor, Mr. Eedmer, with some work at Mr.. Eedmer’s home. Neither Mr. Eedmer nor the wife’s daughter by her previous marriage could testify when the parties began to occupy separate bedrooms, the