Bennett v. Bennett, 115

• Decision Date: 16 March 1951
• Docket Number: No. 115,115
• Parties: , 29 A.L.R.2d 467 BENNETT v. BENNETT.
• Court: Maryland Court of Appeals

Page 408

197 Md. 408

79 A.2d 513, 29 A.L.R.2d 467

BENNETT v. BENNETT.

No. 115.

Court of Appeals of Maryland.

March 16, 1951.

Edward L. Foster, Silver Spring, for appellant.

Samuel F. Beach, Washington, D. C. (Thomas M. Anderson, Rockville, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

Dr. Willard H. Bennett, of Bethesda, a physicist employed by the Government in the National Bureau of Standards, brought this suit against his wife, Dorothy S. Bennett, of Chevy Chase, for an absolute divorce and custody of their minor children. He is appealing here from a decree dismissing his bill of complaint, awarding the custody of the children to defendant, and ordering him to pay $800 as counsel fee to the solicitors for defendant.

The parties were married in 1928 in Columbus, Ohio. At that time complainant was 24 years old and had received his Ph. D. degree, while his wife was only 16. The next two years they lived in Pasadena, where complainant taught at the California Institute of Technology. In 1930 they returned to Columbus, where complainant entered the faculty of Ohio State University. In 1941 he entered the military service, and was ordered to Boston in December, 1942. In the meantime the parties had purchased a home in Columbus, but in January, 1943, defendant moved with the children to Boston. In August, 1943, complainant was ordered overseas. His wife remained in Boston until he returned to this country in May, 1944. Pending his discharge from the Army, his wife returned with the children to Columbus. He rejoined his family there about six months later. In January, 1945, he entered the faculty of the Universit of Virginia. In April his wife sold their house in Columbus and came to Virginia. In Charlottesville they lived in an apartment until July, when they purchased a house.

In March, 1946, complainant secured his position in the Bureau of Standards, which pays a salary of $8,000 a year. His wife did not join him until September, after she had sold the house in Charlottesville. Complainant then rented a house in Chevy Chase for $2,100 a year. This was a more expensive house than he felt he could afford, but he and his family stayed there for a year until he could buy a house. It was during this year that discord developed. Complainant's principal resentment against his wife was that she was extravagant. In February, 1947, his wife had a physical examination and the physician found that she had a heart condition. Shortly afterwards complainant informed her that he had consulted James C. Christopher, attorney, about applying for a divorce. Defendant conferred with Mr. Christopher with the hope of forestalling a suit, and he tried during the next several months to conciliate the husband and wife. They inspected several houses, but were unable to agree upon one. In July complainant entered into a contract to purchase the house at 5519 Lincoln Street in Bethesda. He told his wife to look at it. She did so, and found that it had only two bedrooms. She told her husband that she could not live there, declaring that it was unsuitable for a family of six. She said that three boys would have to occupy one room, and the grown daughter another, while she and her husband would have to sleep downstairs. She then testified: 'I suggested that I would take the remaining sum of money which I had and invest it, but I wanted it to be held jointly, and that he refused, and that I would secure employment and help him fix it up and pay for it.'

Notwithstanding his wife's urgent pleas, complainant warned her that he had received legal advice that if he bought a house which was the best he could afford, and his wife refused to live there, she would be guilty of desertion. Complainant obtained possession of the house in Bethesda on October 1, 1947. About a week later he told his wife that he was preparing to move there, and that he had arranged to have the movers haul the furniture, and that he was sending her a letter to that effect. On October 9 he mailed her a registered letter notifying her that he intended to move on October 14 and that it was up to her to decide whether she and the children would move to the home he was providing. He moved there on October 14 and has been residing there ever since. On April 20, 1949, he instituted the suit for divorce charging that his wife was guilty of desertion.

The Maryland divorce statute authorizes a decree of divorce a vinculo matrimonii when the court is satisfied by competent testimony that the party complained against has abandoned the party complaining, and such abandonment has continued uninterruptedly for at least eighteen months, and is deliberate and final, and the separation of the parties is beyond any reasonable expectation of reconciliation. Code Supp.1947, art. 16, § 40, as amended by Laws 1949, c. 520. Abandonment as a ground for divorce means the unjustified separation of one spouse from the other with the deliberate intention of the offender to terminate the matrimonial relation. Gill v. Gill, 93 Md. 652, 654, 49 A. 557; Muller v. Muller, 125 Md. 72, 76, 93 A. 404; Hubbard v. Hubbard, 127 Md. 617, 620, 96 A. 860; Klein v. Klein, 146 Md. 27, 29, 125 A. 728; Simmont v. Simmont, 160 Md. 422, 425, 153 A. 665; Dunnigan v. Dunnigan, 182 Md. 47, 50, 31 A.2d 634.

The doctrine is well established that the husband, being the head of the family and legally responsible for its support, has the right to choose and establish the domicile for himself and his wife, and when he provides a new domicile, his wife's refusal to follow him constitutes desertion, unless the change is plainly unreasonable. The husband cannot exercise this marital right arbitrarily, but must exercise the right with due regard for his wife's health, welfare and peace of mind. A wife is not obliged to follow her husband unless he requests her to do so and such request is made in good faith, and the change of domicile would not impair her health or safety or unreasonably interfere with her comfort. Schwartz v. Schwartz, 158 Md. 80, 91, 92, 148 A. 259.

In adopting this doctrine in Massachusetts, Chief Justice Knowlton said in Franklin v. Franklin, 190 Mass. 349, 77 N.E. 48, 4 L.R.A., N.S., 145: 'We can conceive of a choice of a domicile so plainly unreasonable and improper, in reference to the health and welfare of the wife, that the selection of it, and an attempted enforcement of his general marital right to have her share it with him, would be extreme cruelty, such as would justify her in declining to accompany him or follow him to such a place of abode. His wife's marital right and his duty as a husband would come in conflict with the exercise of his general right to choose his own domicile, if he attempted to exercise the right in such a way as would be utterly and grossly unreasonable because of the peril to her life and health, and perhaps because of her deprivation of other things essential to her welfare.'

Some courts have applied the rule rather strictly against the wife who refused to follow the husband. For example, in Roby v. Roby, 10 Idaho 139, 77 P. 213, 215, where the husband established a home in a desolate mining region and his wife refused to follow him on the ground that it was not a fit place to live, the Idaho Supreme Court said that, while it was disagreeable in that region about five months in the year, when most of the travel was on snowshoes, and there were no schools, churches or theaters in the locality, yet it was no colder than at many other places in the State, and such conditions were not new to the pioneers of the West. The Court held that the husband was not guilty of desertion.

On the contrary, many courts have applied the rule liberally in favor of the wife. In Powell v. Powell, 29 Vt. 148, 150, where the wife refused to leave the State of New York to live with her husband in Vermont because his home was near his relatives, the Supreme Court of Vermont held that she was entitled to a divorce. In that case, however, an important consideration, which did not appear in the Idaho case, was the fear that the wife's health would be jeopardized. Chief Judge Redfield said that 'it is not uncommon for the female relatives of...