Benson v. Benson

• Citation: 204 Md. 601,105 A.2d 733
• Decision Date: 08 June 1954
• Docket Number: No. 119,119
• Parties: BENSON v. BENSON.
• Court: Court of Appeals of Maryland

Page 601

204 Md. 601

105 A.2d 733

BENSON v. BENSON.

No. 119.

Court of Appeals of Maryland.

June 8, 1954.

William S. Brucker, Towson (Jerome B. Wolff, Baltimore, on the brief), for appellant.

Robert C. McKee, Baltimore, and James C. L. Anderson, Towson, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a decree dismissing a wife's bill for divorce on the ground of voluntary separation for more than three years. The parties were married in Towson on July 1, 1944, and there are no children of the marriage. Some time later, evidently upon his return from military service, they went to live with his parents on a 200 acre farm in Baltimore County. He was employed on a night shift; she was also employed. She testified to increasing friction with her mother-in-law.

Around Easter, in 1949, the wife begged him to establish a separate home, and told him she couldn't 'take it any more.' She suggested that they live elsewhere on the farm. He said he would 'have to talk to his mother first', and kept putting her off. Finally, on July 29, 1949, she packed up her things and asked him to drive her to her sister, who lived about five miles away. He did so. They have not lived together or cohabited since that date. On the ride, the wife said she was sorry 'it worked out like this'. The husband said: 'Do you see any way out?' She replied: 'Right now I don't.' She testified he said he couldn't see it any other way. 'We couldn't figure any other way out; we said 'we will try it this way'.' The wife's brother-in-law testified that Mr. Benson told him, that same day, that 'it seemed to be the only solution for now.' Mr. Benson did not deny driving his wife and her belongings to her sister's, nor did he deny making the statements attributed to him. His testimony was simply that he never agreed to her leaving.

The only effort at reconciliation made by the husband was in January, 1951, on the wife's birthday. At that time she was living with a Mrs. Miller in Baltimore City, about ten miles from the farm. His reply to a question as to what he said to her then, was 'just as she said. I asked her if anything could be worked out, to come back' to the farm with his mother and father. The wife had testified he told her if she came back to the farm 'they' would forgive her. She declined to go back on those terms.

The wife sought to introduce in evidence a written agreement, signed and sworn to by the husband on January 2, 1953, but not executed by her. The court ruled it out, although it contained a recital that 'the parties hereto are now and have been for some time past living separate and apart', and provisions that they would thereafter live separate and apart and that neither would seek restitution or enforcement of conjugal rights. The document called for the conveyance by the husband to the wife of about 15 acres of the farm, which had been conveyed to them by his parents on October 26, 1946, the payment to her of certain moneys, and the conveyance by her of the balance of the property to her husband. The agreement also recited that she intended to file suit for divorce, although the ground was not stated. The agreement was not acceptable to the wife, and she had refused to sign it. It was offered on the theory that it was a sworn recognition by the husband of the state of affairs between the parties at that time, in the nature of an admission. For that limited purpose, we think it is relevant and should have been admitted. Cf. France v. Safe Deposit & Trust Co., 176 Md. 306, 317, 4 A.2d 717, Nichols v. Nichols, 181 Md. 392, 399, 30 A.2d 446, and Hahn v. Hahn, 192 Md. 561, 569, 64 A.2d 739.

As we have indicated, there is very little conflict in the testimony. The trial judge stated in his oral opinion that if he accepted without reservation everything the wife said, he would still be forced to the conclusion that there was not sufficient evidence to establish a voluntary separation. In short, he took the view that a case had not been made out as a matter of law. We think this was error, and involves a misconception of the statutory provision in question.

Code (1951), Art. 16, Sec. 33 authorizes an equity court to grant a divorce a vinculo matrimonii 'when the husband and wife shall have voluntarily lived separate and apart, without any cohabitation, for three consecutive years prior to the filing of the bill of complaint, and such separation is beyond any reasonable expectation of reconciliation'. It is clear, as we have repeatedly stated, that this language connotes more than a mere physical separation, for the word 'voluntary' signifies willingness, and a "willing concert in the doing of the act'.' Lloyd v. Lloyd, Md., 104 A.2d 595, 597, and cases cited. In that case the separation was involuntary, in the sense that it was forced by the wife's condition of health and the incurable and progressive nature of the disease from which she suffered. There is no element of duress in the instant case. We need not consider whether the wife's action was unreasonable under the circumstances, or whether she might have made out a case of constructive desertion under the doctrine of Fischer v. Fischer, 182 Md. 281, 34 A.2d 455. She was content to waive whatever rights she might have had on that ground. She made up her mind that she would not live with her mother-in-law any longer, even though that involved a termination of marital relations and support. The husband, equally firmly, declined to change the existing situation, even though this involved the loss of her services. It is perfectly clear that they agreed to the separation in 1949 and, continuously for the statutory period and down to the time of trial, chose to accept the obstacle presented by the disagreement as to living with his parents, as fatal to the resumption of marital relations. There was a common intent to terminate their cohabitation, at least for so long as the obstacle existed, and the husband acquiesced in the decision, although it lay within his power to remove the cause of disagreement.

The appellee argues that the solution accepted by the parties was only temporary and lacked 'a common intent not to resume marital relations', within the language of France v. Safe Deposit & Trust Co., supra, repeated in Foote v. Foote, 190 Md. 171, 57 A.2d 804. In the context of the France case, the language quoted was used in contradistinction to a physical separation for business or pleasure 'with no intention of affecting their marital relationship'. [176 Md. 306, 4 A.2d 725.] We think the fact that the parties in the instant case did not rule out the possibility of a reconciliation under other circumstances did not alter the finality of their common determination not to live together under the circumstances then existing, which have continued to the present time and will doubtless continue until the death of the parents. Undoubtedly one of the reasons for the three-year period prescribed by the statute is to allow time for reconsideration. It was recognized in Hahn v. Hahn, supra, that an agreement need not be formalized by a writing, and we see no reason to qualify the broad language of the statute by importing into it a requirement that a separation, by common consent of the parties, would lose its voluntary character because of the mere possibility that it may be terminated upon the happening of a condition subsequent.

We find nothing in the holdings of the decided cases at variance with this conclusion. In the France case it was clear that the wife always expected to return, but found it impossible, due to the state of her health and the husband's refusal to furnish her passage money. In the Foote case the only question decided was as to the award of alimony after a decree based on voluntary separation. In the Hahn case, it was held that the wife was entitled to a divorce on the ground of voluntary separation, although she had first filed a suit on the ground of abandonment. In the Lloyd case the wife was in no condition to decline the nursing care of herself and her infant child, offered by her parents. In Campbell v. Campbell, 174 Md. 229, 198 A. 414, 116 A.L.R. 939, the separation was originally due to the wrongful act of the husband, but it was held that her tacit recognition of the situation, as evidenced by an earlier written agreement, justified a decree on the ground of voluntary separation. See also a note on the Maryland cases in 7 Md.L.R. 146.

We think the testimony of the wife, corroborated by that of her brother-in-law and virtually undisputed by the husband as to the material facts, plus the testimony as to the single abortive effort at reconciliation and his admission contained in the sworn statement of the incomplete agreement as to a property settlement, make out a case of voluntary separation for the statutory period, without reasonable expectation of reconciliation.

Decree reversed and case remanded for the passage of a decree not inconsistent with the views expressed herein, costs to be paid by the appellee.

BRUNE, Chief Judge, and COLLINS, Judge (dissenting).

Our difference with the majority opinion is based upon the construction heretofore placed by this Court on the statute authorizing divorces on the ground of voluntary separation and the application of that construction to the evidence in this case,...