Boyd v. Boyd

• Decision Date: 05 March 1940
• Docket Number: 42.
• Citation: 11 A.2d 461,177 Md. 687
• Parties: BOYD v. BOYD.
• Court: Maryland Court of Appeals

11 A.2d 461

177 Md. 687

BOYD v. BOYD.

No. 42.

Court of Appeals of Maryland

March 5, 1940

Appeal from Circuit Court, Harford County, in Equity; Frederick Lee Cobourn, Judge.

Suit for divorce by Emily J. Boyd against John H. Boyd. From a decree granting divorce, defendant appeals.

Reversed.

N Paul Cronin and J. Wilmer Cronin, both of Aberdeen, for appellant.

G Howlett Cobourn, of Bel Air, for appellee.

Submitted to BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, JOHNSON and DELAPLAINE, JJ.

MITCHELL Judge.

John H. Boyd and Emily J. Boyd, the parties to this suit, were married on the 6th day of February, 1928, and lived together as husband and wife in the town of Havre de Grace, Maryland, until September 22, 1934, at which time they entered into an agreement conditioned that they live apart. That agreement was terminated by mutual consent, and on January 1, 1936, they reunited. The reconciliation was of short duration, however, as on July 16, 1937, they again separated, the wife, as of August 20th of that year, having filed a bill for divorce, which was afterwards dismissed without prejudice. Thereafter, in December, 1937, the parties again resumed marital relations and continued to live together until July 30, 1939, on which date the husband left the home in which he and his wife and infant child then resided. Two days after the latter separation, Mrs. Boyd, the appellee, filed in the Circuit Court for Harford County, Maryland, a bill of complaint, in which, after setting forth the circumstances connected with their prior unfortunate marital relations, she alleged that her husband had abandoned and deserted her and declared his intention no longer to live with her. The usual averments of conduct above reproach on the part of the wife are set forth, and it is then alleged that the husband has conducted himself toward the wife in such manner that she has constantly lived in fear of bodily harm and physical violence at his hands, and that his many acts of cruel and inhuman treatment finally culminated in the total abandonment of the complainant and the infant child of the parties as of said July 30, 1939; which abandonment had continued uninterruptedly during the interval between the date of separation and the date on which the bill was filed, was deliberate and final, and the separation of the parties beyond any reasonable hope or expectation of reconciliation. Finally, the bill prayed, (a) that the complainant be granted a divorce a mensa et thoro from the respondent, (b) that she be awarded the custody of the infant child of the parties and a reasonable sum for its support, (c) alimony pendente lite, counsel fees and the costs of prosecuting the suit, and for permanent alimony.

The answer of the respondent denies the alleged abandonment and submits that he was ordered by the complainant to leave the home in which the parties resided at the time of their last separation.

Testimony was heard by the chancellor in open court upon bill and answer, and on the 25th day of October, 1939, a decree was passed granting the complainant a divorce a mensa et thoro, and further decreeing the payment to her by the respondent of the sum of $7 per week for the care, maintenance and education of the infant child of the parties, the sum of $5 per week permanent alimony, and the costs of the proceedings. From that decree this appeal was taken.

The testimony in the record is void of that degree of corroboration wisely required in cases in which the relief sought is that of granting either a legal separation or an absolute divorce to the parties to a marriage contract. In addition, it may be characterized as conflicting and inconclusive. The record reveals that Mr. and Mrs. Boyd have been married but twelve years and that during that time they have formally separated, as above indicated, on three occasions. They have one child, a girl of the tender age of six years. The husband is employed by the United States Government at the Edgewood Arsenal as an electric welder, at a weekly compensation, allowing for deductions for retirement fund purposes, of $34.74. It also appears that the home in which the parties have lived was at one time held by them as tenants by the entireties, and that upon the occasion of one of their former separations, at the request of the wife, the husband voluntarily executed a deed resulting in the vesting of the fee-simple title to the property in the wife, where it remained at the time this suit was instituted.

The wife testifies to three occasions on which controversies with the husband led to combat; all of these, however, took place before the date of the second reconciliation between the parties, and for that reason it would seem unnecessary to detail them. In any event, they are not corroborated, as the only witness produced by the complainant for that purpose, a lady who resided at the home of the couple from 1930 to 1936, testified that on one occasion she heard the wife scream, and upon looking, found her sitting on a couch. This witness added: 'I did not see Mr. Boyd strike her, but she said he pushed her and hit her on the face.' During the six-year period above stated, she testified that she had seen the parties at times angry with each other, but that she had never seen the husband slap or strike his wife.

Turning now to the circumstances surrounding the final separation of the parties, it is significant that the wife is not corroborated in any manner. She was asked by her counsel the following questions and gave the following answers:

'Q. What was the date of your last separation? A. July 30th, 1939.

'Q. In your own words give us the facts and circumstances surrounding this last separation? A. There is not a whole lot to tell. Mr. Boyd did not want to live with me, and he took his bags and left,--that is all there is to tell. He did not want the responsibility of a wife and child and he just left.

'Q. Did he make any statement at that time? A. He told me a couple of days before he left that he was going to leave because I would not be a wife to him, which was not true at that time. We had an argument on the Friday night before the Sunday night that he left and it was not nice the way he talked to me.

'Q. Don't you recall the circumstances of that argument,--what was the argument about? A. * * * He had been to the Point Concord Inn, and he had been drinking. We had been arguing about that for two weeks before that. * * * Then I went to bed and the argument started because I refused to have intercourse with Mr. Boyd. He was not drunk but had been drinking, and that is what the argument started about. It was just the same argument that has been between us ever since we have been married. * * * We had been arguing for six weeks. * * * It all leads up to the same point. I asked for ten dollars to get my teeth and the girl's teeth fixed. He said he gave me part of each pay,--twenty dollars each pay for myself, and I told him that went for taxes and other obligations at the house. * * * I asked for money to have Ann's teeth and mine fixed, and it all started over that.

'Q. And there was nothing on your part that gave him any reason to leave? A: Absolutely no. I told him he could leave if he wanted to, because there was nothing I could do to keep him, that if he did go, I was not going to let him go free as before, that I was going to court and try to make him support me, because he had no cause to leave me.'

The gist of the wife's testimony is that she never refused conjugal relations with her husband under normal circumstances. She objected to his drinking habits, although it does not appear from the testimony that he drank to excess except at infrequent intervals. On the other hand the husband testifies that his wife on occasions, without cause, refused to have marital relations with him, and that for a week prior to the final separation that situation existed. This, he states, was his only reason for leaving. He expresses his willingness to return to his wife and live with her under normal conditions, and she, upon being asked if her husband was willing to effect a reconciliation, whether she would live with him, replied as follows: 'I would not see any use in it. All these times that we did go back, it has happened over and over again, and I do not see any use in it. If I could see any use in it, it would be all right, but it is not. He is not going to change,--I guess I am what I am, and he is what he is.'

Divorces a mensa et thoro may be decreed for the following causes in this state: First, cruelty of treatment; second, excessively vicious conduct; third, abandonment and desertion. Code of Pub.Gen.Laws, Art. 16, sec....