Hodges v. Hodges, 158

• Decision Date: 10 May 1957
• Docket Number: No. 158,158
• Citation: 131 A.2d 703,213 Md. 322
• Parties: Ethel Viola HODGES v. Louis O. HODGES, Jr.
• Court: Maryland Court of Appeals

Page 322

213 Md. 322

131 A.2d 703

Ethel Viola HODGES v. Louis O. HODGES, Jr.

No. 158.

Court of Appeals of Maryland.

May 10, 1957.

Eugene M. Childs, Baltimore (Childs & Bald, Annapolis, on the brief), for appellant.

David E. Betts, Rockville (Betts, Clogg & Murdock, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

BRUNE, Chief Judge.

Ethel V. Hodges, the plaintiff and cross-defendant below, appeals from a decree of the Circuit Court for Anne Arundel County awarding the appellee, Louis O. Hodges, Jr., an absolute divorce.

The appellant on September 17, 1955, filed a bill for a divorce a mensa et thoro on the ground of cruelty and for temporary and permanent alimony, the custody of the minor children of the parties, Louis and Nancy who are age eighteen and eight years respectively, and for funds for their support. The appellee filed an answer and cross-bill. By the latter he sought a divorce a vinculo matrimonii on the ground of desertion and the custody of the children. The Chancellor dismissed the appellant's bill and granted the appellee an absolute divorce, but awarded the custody of, and support for, the children to the appellant. From the decree granting the divorce a vinculo matrimonii the wife appeals.

The appellant's first contention is that a constructive desertion amounting to abandonment has not been established since there is no testimony of a refusal to have marital relations and, furthermore, if there is such testimony it is not corroborated.

The appellee testified that in August or September, 1953, the appellant moved out of the bedroom which they had been occupying and slept on the sofa in the living room so as to avoid marital relations with him; that thereafter he had no marital relations with her although he had occasionally desired them; that several times he questioned her as to why she stayed in the living room at night and reminded her that 'no one ever made you get out of the bedroom upstairs'. He admitted that she never locked him out of her bedroom until after the start of the divorce proceedings.

The appellant testified that she moved out of the bedroom in September, 1953, to sleep on the sofa in the living room, because it helped her arthritic back; that they had not engaged in marital relations for a substantial period of time, possibly for one or two years, and that during the time she slept on the sofa neither asked the other to resume marital relations.

Louis O. Hodge, III, the elder child of the parties, stated that his mother slept on the sofa but he had no knowledge of whether or not his parents had marital relations.

William K. Hodges, brother of the appellee, testified that the appellant came to see him in 1954 and consulted him about securing legal counsel for a divorce or separation from the appellee.

Code 1951, Article 16, Section 33, provides that a divorce a vinculo matrimonii may be granted:

'* * * 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 eighteen months, and is deliberate and final, * * *.'

It is well recognized that a permanent and irrevocable refusal, without proper cause, of one spouse to have sexual intercourse with the other constitutes an abandonment under the above quoted statute. Fleegle v. Fleegle, 136 Md. 630, 110 A. 889; Martin v. Martin, 141 Md. 182, 118 A. 410; Klein v. Klein, 146 Md. 27, 125 A. 728; Crumlick v. Crumlick, 164 Md. 381, 165 A. 189; Lent v. Lent, 202 Md. 240, 96 A.2d 14; Schwartzman v. Schwartzman, 204 Md. 125, 102 A.2d 810.

In Mower v. Mower, 209 Md. 413, 417, 418, 121 A.2d 185, 187, this Court said: '* * * It is understood, of course, that the mere fact that a husband ceases to occupy the room in which he and his wife have been accustomed to sleep and thereafter occupies alone another room in the house is not necessarily a withdrawal of marital right from the wife which constitutes desertion within the meaning of the statute. It is only where it is without good reason that the husband leaves his wife and permanently refuses to have intercourse with her that the occupancy of another room constitutes desertion as a ground for divorce. Ruckle v. Ruckle, 141 Md. 207, 118 A. 472; Wysocki v. Wysocki, 185 Md. 38, 41, 42 A.2d 909; Jones v. Jones, 186 Md. 312, 46 A.2d 617. Moreover, the law is clear that the complainant who seeks a divorce has the burden of proving the allegation that the defendant refused to fulfill the marital duty.'

Code 1951, Article 35, Section 4, provides, among other things, that no decree of divorce shall be granted upon the testimony of the plaintiff alone, '* * * but in all such cases testimony in corroboration of that of the plaintiff shall be necessary.'

In the instant case, we find it difficult in the first place to interpret the husband's own testimony as being evidence of a permanent and irrevocable refusal by the appellant to have marital relations; and the wife's testimony is in flat contradiction of such an interpretation. Yet, if, as the Chancellor found, we accept the husband's testimony as showing such a refusal on the wife's part, we are immediately confronted with the problem of corroboration of his testimony.

It has often been stated by this Court that slight corroboration is sufficient if the facts preclude any possibility of collusion. Kelsey v. Kelsey, 186 Md. 324, 46 A.2d 627; Harp v. Harp, 198 Md. 485, 84 A.2d 895; Lent v. Lent, supra. Corroboration cannot, however, be dispensed with. We have clearly in mind the rule that the findings of fact of the trial judge are not to be set aside unless plainly erroneous. In this case the Chancellor was of the opinion that the husband's testimony 'appears sufficiently corroborated.' His opinion on this point seems to have been founded primarily, if not wholly, upon two things: (1) that the son corroborated the fact that the wife slept on the sofa in the living room; and (2) that more than six months after she had begun sleeping there, she had talked with the husband's brother about getting in touch with a lawyer with a view towards seeking a divorce or separation.

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