Etheridge v. Etheridge

• Decision Date: 13 February 1913
• Citation: 87 A. 497,120 Md. 11
• Parties: ETHERIDGE v. ETHERIDGE.
• Court: Maryland Court of Appeals

87 A. 497

120 Md. 11

ETHERIDGE v. ETHERIDGE.

Court of Appeals of Maryland

February 13, 1913

Appeal from the Circuit Court of Baltimore City; Henry D. Harlan Judge.

Suit by Meta E. Etheridge against Raymond Etheridge. From an order overruling a demurrer to the bill, defendant appeals. Affirmed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

John L Sanford, of Baltimore, for appellant. Thomas J. Mason, of Baltimore, for appellee.

BURKE J.

The bill in this case was filed by the wife against her husband and prayed for a divorce a mensa et thoro, and for alimony, temporary and permanent, and for counsel fees, etc. The grounds upon which the relief is prayed are abandonment and desertion, and cruelty. The defendant demurred to the entire bill, and from the order of the lower court overruling the demurrer, he has brought this appeal.

Section 38, art. 16, Code 1912, relates exclusively to divorces a mensa et thoro, and enumerates the grounds upon which they may be granted. The jurisdiction to grant such a divorce is purely statutory, and the court is confined in the exercise of its jurisdiction to the causes specified in the statute.

The grounds enumerated in the act are: First, cruelty of treatment; secondly, excessively vicious conduct; thirdly, abandonment and desertion. A divorce a mensa may be granted for abandonment and desertion without regard to its duration.

The bill in this case alleged that the plaintiff and defendant were married on the 27th of March, 1911. The bill was filed on the 3d of September, 1912, and alleged that the plaintiff had resided in the state of Maryland for more than two years prior to that date. It thus appears, by necessary implication from the allegations of the bill, that the plaintiff was a resident of the state prior to her marriage, and from the express averments thereof that she had continuously resided therein down to the date of the institution of the suit. The bill further alleged that as the result of the said marriage one child had been born, an infant, Irene Gibson Etheridge, who is in the custody of the plaintiff. The third and fourth paragraphs of the bill are as follows: "Third. That the defendant, without cause or reason, has abandoned and deserted your oratrix. Fourth. That from the time of said marriage the defendant has treated your oratrix with great cruelty, and his conduct towards her has been excessively vicious. In the prayer for process it is stated that the defendant resides in Baltimore City. Under section 36, art. 16, of the Code of 1912, a bill for divorce may be filed in the court, either where the party plaintiff or defendant resides, and the Sixteenth Equity Rule, codified as section 156, art. 16, of the Code, requires that the place of residence of the defendant, if known, shall be stated in the prayer for process.

Abandonment and desertion to constitute a ground for divorce a mensa under the statute must be the deliberate act of the party complained of, done with the intent that the marriage relation should no longer exist. Lynch v. Lynch, 33 Md. 328; Gill v. Gill, 93 Md. 652, 49 A. 557.

This abandonment, said Chief Justice Shaw in Gregory v Pearce, 4 Metc. (Mass.) 479, "may be proved by a great variety of circumstances leading, with more or less probability, to that conclusion, as, for instance, leaving his wife with the declared intention never to return; marrying another woman, or living in adultery abroad;...