Fleegle v. Fleegle

• Decision Date: 17 June 1920
• Docket Number: 34.
• Parties: FLEEGLE v. FLEEGLE.
• Court: Maryland Court of Appeals

110 A. 889

136 Md. 630

FLEEGLE v. FLEEGLE.

No. 34.

Court of Appeals of Maryland

June 17, 1920

Appeal from Circuit Court, Allegany County, in Equity; Robert R Henderson, Judge.

"To be officially reported."

Action by Peter Fleegle against Sarah E. Fleegle. From an order overruling a demurrer to an amended bill of complaint defendant appeals. Order affirmed.

Argued before BRISCOE, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

F Brooke Whiting, of Cumberland (Whiting & Eppler, of Cumberland, on the brief), for appellant.

Walter C. Capper, of Cumberland, for appellee.

BRISCOE J.

This is an appeal from an order of the circuit court for Allegany county overruling a demurrer to an amended bill of complaint filed by the plaintiff against the defendant for a decree for a divorce a vinculo matrimonii from the defendant. The bill avers that the plaintiff married the defendant in the city of Cumberland, Md., on the 16th day of March, 1894, and that he had by the marriage one child, Eleanor Fleegle, who was 21 years of age in August, 1919. The bill by its second paragraph alleges:

"That the plaintiff and the defendant resided together in Allegany county, Md., as man and wife, until May 16, 1915 and that for many years prior thereto the conduct of the defendant toward the plaintiff had been cruel and vicious, and without just cause the defendant, after the birth of the daughter, refused to bear any more children, and refused, failed, and neglected a great deal of the time until the said 16th day of May, 1915, to permit him to have sexual intercourse with her, and that on or about the said 16th day of May, 1915, the defendant refused any longer to occupy the same room with him, but arranged a room of her own in another part of their home, and thereafter without just cause, or any cause whatsoever, the defendant refused continuously to have any sexual intercourse with him, and since that time has refused constantly to live with him as man and wife, and her conduct during all of said time toward him has been cold and cruel, and has displayed no affection whatever during said time for him, and has been quarrelsome and unnatural in her conduct toward him; and he now alleges that the said defendant, by such refusal as aforesaid to have sexual intercourse with him, and by all of the said treatment of him by the defendant, compelled him to leave his home, and he has not lived with the defendant since that time; and he now alleges that by such refusal of the defendant to have sexual intercourse with him, and all of the aforesaid cruel and inhuman treatment of him by the defendant on the said 16th day of May, 1915, the defendant, Sarah E. Fleegle, without just cause or reason, deserted and abandoned him, and that such abandonment was deliberate and final, and has continued interruptedly for more than three years last past, and their separation is without any reasonable hope of reconciliation."

The bill then prays that a decree may be passed divorcing the plaintiff a vinculo matrimonii from the defendant and for general relief.

The defendant demurred to the amended bill, and for cause of demurrer alleged: First, that the plaintiff has not stated in his amended bill such a case as entitles him to any relief in equity against the defendant; second, the defendant says that the refusal to permit the usual sexual relations between husband and wife was not an act of desertion, as contemplated by the laws of the state of Maryland.

The facts, as alleged by the bill, are admitted by the demurrer to be true, and the single question in the case is whether these facts constitute a ground for a divorce for desertion and abandonment under the laws of this state. The jurisdiction of courts of equity in this state to grant divorces is conferred by sections 36 and 37 of article 16, vol. 1 of the Code, and the courts may decree a divorce a vinculo matrimonii for certain causes set out in section 37 thereof. The fourth cause and ground is stated to be: When the court shall be satisfied by competent testimony that the party complained against has abandoned the party complaining, and that such abandonment has continued uninterruptedly for at least three years, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation.

This section of the Code has been carefully considered by this court in a long line of well-considered cases, and the rule has been stated and reaffirmed, to the effect that abandonment, to constitute ground for a final divorce, must be the deliberate act of the party complained of, done with the intent that the marriage relations should no longer exist. Lynch v. Lynch, 33 Md. 328; Gill v. Gill, 93 Md. 654, 49 A. 557; Matthews v. Matthews, 112 Md. 584, 77 A. 249, 29 L. R. A. (N. S.) 905; Heinmuller v. Heinmuller, 133 Md. 494, 105 A. 745.

In Gill v. Gill, 93 Md. 654, 49 A. 558, supra, this court said:

"Thus in Gregory v. Pierce, 4 Metc. (Mass.) 479, Chief Justice Shaw says: 'It must be a voluntary separation from and abandonment of the wife, embracing both the fact and intent of the husband to renounce de facto, and as far as he can do so, the marital relation.' And in Bennett v. Bennett, 43 Conn. 313: 'Desertion, in the marriage relation, consists in the breaking off of cohabitation, with a determination not to renew it.' These judicial declarations as to what constitutes abandonment or desertion in law agree with the definition of the leading text-writer of this country upon this subject, Mr. Bishop, who says in his work on Marriage, Divorce and Separation, (volume 1, §§ 1662, 1663): 'Desertion, as a matrimonial offense, is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent, or the wrongful conduct, of the latter. Its [inherent] affirmative elements are two-the cohabitation ended, and the offending party's intent to desert. The statute creates a third affirmative element, the lapse of a defined period of time. In all cases the criterion is the intent to abandon.' 1 Bishop, § 1672; Stewart on Marriage and Divorce, §§ 254, 255."

In A. & E. Ency. of Law, vol. 9 (2d Ed.) p. 764, it is said:

"Desertion is the willful termination of the marriage relation by one of the married parties, without lawful or reasonable cause, or a refusal without reasonable cause to renew the marriage relation after parties have been separated."

The court below held that the facts alleged in the plaintiff's bill i...