Crumlick v. Crumlick

• Decision Date: 21 March 1933
• Docket Number: 16.
• Parties: CRUMLICK v. CRUMLICK.
• Court: Maryland Court of Appeals

165 A. 189

164 Md. 381

CRUMLICK v. CRUMLICK.

No. 16.

Court of Appeals of Maryland

March 21, 1933

Appeal from Circuit Court, Baltimore County, In Equity; Frank I Duncan, Judge.

Suit by Lucie J. Crumlick against Henry E. Crumlick. Decree for plaintiff, and defendant appeals.

Affirmed in part, reversed in part, and case remanded.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Wm Pepper Constable and John D. Alexander, both of Baltimore (Lawrence E. Ensor, of Towson, on the brief), for appellant.

Milton R. Smith, of Towson, for appellee.

DIGGES Judge.

The circuit court for Baltimore county, by its decree of June 18 1932, granted a divorce to the appellee (wife) from the appellant on the ground of desertion and abandonment. awarded the custody of the three children to the wife, and ordered that the husband pay the sum of $17.50 a week as alimony and for the support of the children. The appeal is by the husband from that decree.

Abandonment or desertion, as a marital offense, consists in the voluntary separation of one of the married parties from the other, or the refusal to renew suspended cohabitation, without justification either in the consent or the wrongful conduct of the other party. Bishop on Marriage, Divorce and Separation, vol. 1, §§ 1662, 1663; Gill v. Gill, 93 Md. 654, 49 A. 557; Taylor v. Taylor, 112 Md. 666, 77 A. 133; Buckner v. Buckner, 118 Md. 101, 84 A. 156, Ann. Cas. 1914B, 628; Klein v. Klein, 146 Md. 27, 125 A. 728. Abandonment and desertion, as a ground for divorce a mensa et thoro, must contain two inherent affirmative elements: First, cohabitation ended; and, second, the offending party's intention to desert. Miller v. Miller, 153 Md. 213, 138 A. 22; Crouch v. Crouch, 150 Md. 608, 133 A. 725, 47 A. L. R. 681; Sheehan v. Sheehan, 156 Md. 656, 145 A. 180. It must be the deliberate act of the party against whom the complaint is made, done with the definite intention that the marriage relation shall no longer exist, in so far as it be within the power of the offending party. Young v. Young, 136 Md. 84, 110 A. 207; Fleegle v. Fleegle, 136 Md. 630, 110 A. 889; Ruckle v. Ruckle, 141 Md. 213, 118 A. 472; Crouch v. Crouch, supra. Actual separation and the intention to abandon the marital relation must be present at the same time in order to constitute legal desertion. The two need not begin at the same time, but the desertion begins whenever the two coincide in point of time. Supra. It is settled in this state that the refusal of the husband or wife to have sexual intercourse with the other, without just cause, constitutes marital desertion. Fleegle v. Fleegle, supra; Roth v. Roth, 145 Md. 74, 125 A. 556; Owings v. Owings, 148 Md. 124, 128 A. 748; McKane v. McKane, 152 Md. 515, 137 A. 288; Downs v. Downs, 154 Md. 430, 140 A. 831. From the cited decisions of this court it is apparent that the law in this state governing divorce on the ground of abandonment or desertion is fully and firmly established, and is not ordinarily the subject of dispute. The question presented is: Applying the settled law to the facts as disclosed by the record before us, is the appellee entitled to a divorce a mensa et thoro from the appellant? The results consequent upon decisions of the courts in many divorce cases are far from satisfactory, when viewed from the standpoint of the future welfare and happiness of the parties directly concerned, or from the broader viewpoint of society as a whole. This being true, there is frequently present the temptation on the part of the chancellor to make the decree in a particular case conform to his individual view of what would be most conducive to the contentment and happiness of the persons directly concerned, or the common welfare.

The policy of this state, as indicated by its statutes and the decisions of this court, is based upon the firm belief that the interests of its citizens, collectively and individually, are best subserved by maintaining the home as the most advantageous environment under which future citizens may be reared; to prevent the disintegration of that home and the separation of the marital parties for trivial or inconsequential reasons, and to compel that no divorce be granted except for serious and weighty causes firmly established and understood. There is a modern school of thought, including in its members people of great refinement, unquestioned integrity, and the highest educational advantages, which contends that a policy different than the one adopted and adhered to in this state is the correct one, more particularly as applied to married couples whose union has not resulted in the production of offspring. If there should be and is to be a change of policy on this subject, it is a legislative and not a judicial function. The courts are bound only to pass divorce decrees when the evidence produced establishes a legally recognized cause.

Abandonment and desertion being a cause for divorce in this state, the question in the case now before us is: Did the acts declarations, and conduct of the appellant, as disclosed by the record, constitute abandonment by him of his wife? As would be expected, the testimony of the husband and wife is not in accord as to some of the facts. Those which are undisputed or which are shown to be true to our satisfaction are: That the husband was with the American Army in France during the World War, at which time he became acquainted with the wife, the daughter of a retired French Army officer living at Angers, France; that after the armistice the husband returned to America and corresponded with the wife, during which correspondence he proposed marriage. Upon the wife's suggestion he went back to France in February, 1921, remaining there until the time of their marriage on April 6, 1921. Shortly after the marriage the couple returned to America and took up their residence at Dundalk, Md., at first for a very short time with a sister of the husband, and later in the home belonging to the husband. The record discloses that they lived the normal married life until May, 1929, before which time there had been born to them three daughters. In May, 1929, without any apparently sufficient cause, sexual...