Green v. Green
| Decision Date | 14 January 1915 |
| Docket Number | 97. |
| Citation | 93 A. 400,125 Md. 141 |
| Parties | GREEN v. GREEN. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; Thos. Ireland Elliott Judge.
Suit by Robert H. Green against Lydia M. Green. From a decree of dismissal, complainant appeals. Affirmed.
Henry H. Dinneen, of Baltimore, for appellant.
Robert H. Green, the appellant, filed his bill in the circuit court of Baltimore city for a divorce a vinculo matrimonii from Lydia M. Green, his wife, upon the ground of abandonment. The bill alleges, and the proof substantiates it, that the parties were married in November, 1908; that for no apparent reason on the 7th May, 1909, the defendant abandoned her husband, and this desertion has continued uninterruptedly ever since, and is without reasonable expectation of reconciliation. In the course of the proof the plaintiff was asked by the examiner whether since his wife had been away from him, he had ever been with other women, and the witness answered, "Once, three or four years after the abandonment happened." Upon the submission of the papers in the case to the auditor and master, Mr. Robertson reported that the bill should be dismissed, relying upon the case of Fisher v. Fisher, 95 Md. 316, 52 A. 898, 93 Am. St Rep. 334. Exceptions were filed to this report, which, after hearing, were dismissed, and the bill of complaint was also dismissed. It is from such decree of dismissal that the present appeal is taken.
Lydia M. Green made no defense in the circuit court to the charge of desertion; although summoned, she did not appear, and a decree pro confesso was entered against her, and she has not been represented on this appeal.
The argument of the counsel for the appellant is apparently based upon two grounds: (1) That the abandonment of the wife was the inciting cause of the subsequent act of adultery upon the part of the husband; and (2) that the statutory period of desertion having elapsed before the act of adultery was committed, the right of the plaintiff had become fixed and could not be affected by his subsequent act. In support of his position he cites numerous authorities, some of which are applicable and some not, but the question involved in the case is of sufficient importance to make a review of the more important authorities appropriate.
Taking first the text-books, we find the rule stated in 14 Cyc. 650 that "any misconduct on the part of the complainant which constitutes a ground for divorce bars his suit, without reference to the nature of the offense of which he complains," but adds, "in some states, by statute or otherwise, a contrary rule prevails, and the offense must be of the same character." In the present case under the Maryland statute the desertion set out in the bill, and proved by the evidence, was a sufficient ground for the granting of an absolute divorce. Also the adultery of the husband constituted a sufficient ground, under the statute for which Mrs. Green, if she had seen fit, might have filed her bill and, if the proof substantiated the allegations, have obtained an absolute divorce. If, therefore, the rule as stated in 14 Cyc. is supported by the authorities, there can be no question but what the decree of the circuit court in dismissing the bill was correct.
In Nelson on Divorce and Separation, § 429, the statement is as follows:
In 2 Bishop on Marriage, Divorce, and Separation, § 350, it is said:
"By all opinions, English and American, one shown to have been guilty of adultery cannot have a divorce for adultery committed by the other, and it makes no difference which was the earlier offense, or even that the plaintiff's followed a separation which took place on discovery of the defendant's."
In Brown on Divorce, page 84, the rule is laid down as follows:
"Where each of the parties has committed a matrimonial offense which is a cause for divorce, so that when one asks for this remedy, the other is equally entitled to the same, whether the offenses are the same or not, the court can grant the prayer of neither."
In Stewart on Marriage and Divorce, § 314, the rule is concisely stated as follows:
If now we turn from the text-writers to the adjudicated cases, we find a wide diversity of decisions, much greater than the statements in the text-books give any indication of. The case most frequently cited is the Ristine Case, in 4 Rawle (Pa.) 460, decided in 1834, in which it was held that adultery committed by a husband after a wife had separated herself from him was no bar to his obtaining a divorce in consequence of his wife's willful and malicious desertion and absence, without reasonable cause, for two years, and the same rule was subsequently followed in Pennsylvania, in the case of Mendenhall v. Mendenhall, 12 Pa. Super. Ct. 290; but it is to be observed, in connection with these cases, that they were both decided upon the supposed necessity to observe certain established rules of statutory construction, and the same may be said of the decision in the case of Buerfening, 23 Minn. 563. Other Pennsylvania cases, however, are not in accord with the doctrine of the Ristine Case; thus in Vellis v. Vellis, 4 Pa. Co. Ct. R. 100, it was held that a decree of divorce on the ground of desertion would not be granted to a wife where it appeared by her own evidence that she was delivered of a bastard child begotten after the desertion, the court saying:
In that case, as in this, the defendant was entirely unrepresented. This case was subsequently followed, though not referred to in the case of Hugo v. Hugo, 21 Pa. Co. Ct. R. 607, where it was held that where a husband and wife have both committed matrimonial offenses which would justify a decree of divorce,...
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