Williams v. Williams

Urner, J., delivered the opinion of the Court. By a decree of the Circuit Court of Baltimore City, dated October 15th, 1926, the parties to this appeal were divorced a mensa el thoro, at the suit of the wife, on the ground o'f abandonment. The marital domicile was in Easton, Maryland, where the husband still resides, but since the separation the wife has been living in Baltimore. On July 1st, 1927, the husband filed, in the Circuit Court for Talbot County, the pending bill for an absolute divorce on the ground of the wife’s alleged adultery.

A divorce a vinculo matrimonii was decreed upon evidence which convinced the court below that the charge against the wife was well founded. The principal questions which we are asked to determine on this appeal are: (1) Whether the Circuit Court for Talbot County had jurisdiction to entertain the suit for an absolute divorce, notwithstanding the fact that a decree for a partial divorce of the parties, and for permanent alimony, had been ¹² passed by the Circuit Court of Baltimore City. (2) Whether the abandonment of the appellant by the appellee disentitles the latter to assert subsequent infidelity of his wife as a ground for divorce. (3) Whether the testimony justifies the conclusion that the appellant was guilty of the marital offense alleged in the bill of complaint.

To the question of jurisdiction the following Code provisions are pertinent: “The courts of equity of this State shall have jurisdiction of all applications for divorce; and any person desiring a divorce shall file his or her bill in the court, either where the party plaintiff or defendant resides; * * Article 16, section 37. “When a bill prays for a divorce a vmculo matrimonii, the fact that the parties have been divorced a mensa et ihoro shall not be taken to interfere with the jurisdiction of the court over the subject, * * Article 16, section 41. In Schwab v. Schwab, 93 Md. 385 , it was said: “An action for a divorce a vinculo is in every respect different from that for a divorce a mense et thoro. They are both statutory proceedings and they proceed upon different sections of the statute, are founded upon a different state of facts and aim at entirely different results.” This language was quoted in the opinions in Stewart v. Stewart, 105 Md. 302 , and Miller v. Miller, 153 Md. 213 . It was held in Schwab v. Schwab that a supplemental bill charging adultery could not be filed in a case where the original bill sought a partial divorce on grounds not constituting cause for a divorce a vinculo, and that such a cause could only be asserted in a separate suit.

In Stewart v. Stewart it was decided that a partial divorce could not be granted under a bill alleging adultery as the sole ground of relief, since the statute authorizes only an absolute divorce for that cause. The opinion in Miller v. Miller discusses the principle of the Schwab and Stewart cases, and finds it consistent with a conclusion that a divorce a mensa for abandonment could be granted, as prayed in the bill, although the evidence showed that the separation had continued for more than the statutory period of three years, ¹³ and thus afforded ground upon which an absolute divorce might be sued for and obtained. The jurisdiction of the Circuit Court of Baltimore City, which the appellant invoked for the purposes of her bill for a limited divorce, could not, upon the allegations and facts, have included authority to grant an absolute divorce even upon the ground of abandonment, as the final separation of the parties was stated in the decree to have occurred on a date which was less than three years prior to the institution of the suit. The allegation of adultery in the present case, and the evidence offered in support of the charge, are directed to a period subsequent to the decree passed in the other proceeding.

As the decree of the Circuit Court for Talbot County was concerned with a subject and form of relief to which the judicial power of the Circuit Court of Baltimore City could not be directed in the former case, the prosecution and result of that suit can have no effect upon the jurisdiction exercised in the passage of the decree which is now under review. The question whether the decree of divorce a mensa el thoro in favor of the appellant, and the abandonment mentioned in that decree, prevents an absolute divorce in this suit on the ground of her adultery, if the evidence proves the charge, is answered in the negative by the opinions delivered in Appeltofft v. Appeltofft, 147 Md. 603; Pryor v. Pryor, 146 Md. 683 , and Foxwell v. Foxwell, 118 Md. 471 . It was admitted by the appellant and the corespondent ini their testimony that the latter was a frequent visitor at the appellant’s apartments, which consisted of an interior passage way, a combined living and bedroom, a kitchenette, and a bathroom. It was testified by the janitor of the building that, during the appellant’s occupancy of the apartment, from early in January, 1927, until May 1st of the same year, the corespondent visited her there almost every night.

There was no contradiction of that statement. The appellee having asked his brother to observe the appellant’s conduct, and having been informed by him that she was receiving attentions from a male visitor, employed a detective, who, on the ¹⁴ night of April 23d, in company with the appellee, the brother just referred to, and a friend from Talbot County, went to the vicinity of the