Dunnigan v. Dunnigan

• Decision Date: 29 April 1943
• Docket Number: 15.
• Citation: 31 A.2d 634,182 Md. 47
• Parties: DUNNIGAN v. DUNNIGAN.
• Court: Maryland Court of Appeals

31 A.2d 634

182 Md. 47

DUNNIGAN v. DUNNIGAN.

No. 15.

Court of Appeals of Maryland

April 29, 1943

Appeal from Circuit Court No. 2 of Baltimore City; Eugene O'Dunne, Judge.

Action by Pauline J. Dunnigan against Joseph Lawrence Dunnigan for a divorce a vinculo matrimonii on the ground of abandonment. From an adverse decree, plaintiff appeals.

Reversed and remanded with directions.

M William Adelson, of Baltimore (Theodore R. McKeldin, of Baltimore, on the brief), for appellant.

Joseph H. A. Rogan, of Baltimore (Alfred J. O'Ferrall, Jr., of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON MELVIN, and ADAMS, JJ.

MELVIN Judge.

This is a suit by the wife (appellant) against the husband (appellee) for a divorce a vinculo matrimonii on the ground of abandonment. These parties were married in June, 1930, and separated, finally, in February, 1938. The husband then left his wife and two infant children, giving as his reason for so doing his financial inability to pay board at the home of his wife's parents where they were all living.

The record shows that within the month following the separation the wife entered suit in Baltimore County against the husband for nonsupport and that although he secured counsel and filed an answer no further proceedings were had. This was due, it is alleged, to his failure to appear at the time set for a hearing before the court, and to his unknown whereabouts subsequently. It is also alleged, and not denied, that the total amount of $30 is all that the husband has contributed for the support and maintenance of his wife and children since he left them in February, 1938,--the last payment of $5 going to constitute that sum having been made in April, 1938. This undisputed fact in the record is to be emphasized, as it gives the clearest light of all on the controlling question of the husband's intention in leaving his family and remaining apart from them ever since.

On July 26, 1941, the wife instituted divorce proceedings against the husband in Baltimore City, alleging abandonment for over three years, and asking for a decree a vinculo matrimonii and for the custody of the infant children. On the allegation that the defendant was a nonresident, an order of publication was issued and executed, following which in due course the proceedings were submitted to Judge Eli Frank, who, under date of October 6, 1942, signed a decree granting the divorce and custody, as prayed.

At that time the wife and children were still living with her parents, and the wife had gotten employment to earn some money toward their support, none having been forthcoming from the husband. On December 4, 1941, Circuit Court No. 2 of Baltimore City passed a decree on the petition of the wife and mother (the appellant) for the adoption of the said infant children by the wife's parents, Clark E. Skegg and Naomi Skegg, his wife.

The next step in the proceedings was taken by the husband, who then showed up in the domestic picture for the first time in over three years by filing a petition, under date of March 21, 1942, to rescind the decree of divorce and also the adoption decree. This was on the ground, principally, that the husband was not a nonresident at the time of his wife's preceding actions in court. At the hearing on this petition before Judge Ulman on April 29, 1942, counsel for the wife consented to the passage of an order striking out the decrees in question.

The decree for divorce passed on October 16, 1941, having thereupon been stricken out, and jurisdiction over the cause and the parties thereto having been retained, subject to the further order of court, the defendant, Joseph Lawrence Dunnigan, under date of June 5, 1942, filed his answer to the original bill for divorce. Testimony was thereafter taken in open court before the Chancellor (Judge O'Dunne), at the conclusion of which the decree was passed from which this appeal has resulted.

The principles of law applicable to a case of this kind have been stated so many times by this court in the multitude of divorces that have come before it that only a brief citation of authorities is necessary. Typical of the Maryland cases announcing these principles, where abandonment is alleged as the ground for divorce, are: Klein v. Klein, 146 Md. 27, 125 A. 728; Taylor v. Taylor, 112 Md. 666, 77 A. 133; Buckner v. Buckner, 118 Md. 101, 84 A. 156, Ann.Cas.1914B, 628; Lynch v. Lynch, 33 Md. 328; Boyd v. Boyd, 177 Md. 687, 11 A.2d 461; Crumlick v. Crumlick, 164 Md. 381, 165 A. 189.

According to these cases and the others in line with them, it is well settled that for a leaving of one spouse by the other to constitute 'abandonment', within the meaning of the statute, there must be two affirmative elements: first, the ending of the cohabitation, and, second, the offending party's intention to desert. Also, that while the separation and intention to abandon must concur, the two elements need not begin together, and desertion begins whenever to either one the other is added. Taylor v. Taylor, supra; Klein v. Klein, supra; Boyd v. Boyd, supra.

As stated in the Boyd case, supra, 'the length of time during which the separation has existed is to be considered in determining whether an alleged abandonment is real, or exists merely in the imagination or desire of the complaining party.'

On the issue of abandonment in the case at bar, the undisputed facts are that the husband did actually leave his wife and children in February, 1938; that he has remained apart from them ever since; that until his intervention in these divorce proceedings in 1942, he not only made no effort or offer to provide them with a home but went his own way; that subsequent to his leaving, down to the present time, his total contributions toward the support of his wife and children have been exactly $30 and that since April, 1938, he has contributed nothing whatever. It also appears, according to his own testimony, that for at least three years prior to the final hearing in the case he was working for an air conditioning contractor in Baltimore for a salary which, at the time he was testifying, he stated to be $60 a week.

These admitted facts are sufficient, in themselves, to clearly establish the husband's intention in the course pursued by him. There is not only in this case the ending of the cohabitation, at the instance of the husband, but a showing of facts in connection therewith which makes his abandonment real, and not imaginary on the part of the wife. Boyd v. Boyd, supra. Supporting authorities are: Gill v. Gill, 93 Md. 652, 655, 49 A. 557; Strzegowski v. Strzegowski, 175 Md. 53, 59, 199 A. 809; Bruner v. Bruner, 70 Md. 105, 16 A. 385.

In view of these facts, which constitute abandonment within...