Jones v. Jones

• Decision Date: 12 April 1946
• Docket Number: 93.
• Parties: JONES v. JONES.
• Court: Maryland Court of Appeals

46 A.2d 617

186 Md. 312

JONES v. JONES.

No. 93.

Court of Appeals of Maryland

April 12, 1946

Appeal from Circuit Court, Carroll County; James E. Boylan, Jr. Judge.

Suit for divorce by Lewis E. Jones against Bernice P. Jones. From a decree dismissing the bill of complaint, the complainant appeals.

Affirmed.

D. Eugene Walsh and Vincent A. Tubman, both of Westminster, for appellant.

Theodore F. Brown, of Westminster (A. Earl Shipley, of Westminster, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

MARBURY Chief Judge.

A husband appeals from a decree of a chancellor, dismissing his bill for a divorce a vinculo, filed on the ground of abandonment. The case presents a situation where the claimed abandonment was the refusal to continue marital relations while the parties were living in the same house. In some jurisdictions it is required that such abandonment be notorious and known to the community in which the parties live. That is not the law of this State, but the fact that it is the law elsewhere emphasizes the difficulties of the ordinary proof in such cases. It is very easy to set up such a claim if the parties are in collusion, and where there is no defense the testimony must be carefully scrutinized to see if the facts are clearly proved. Where the case is contested as in the proceedings before us, the inherent difficulty of establishing the facts, does not relieve the complainant from furnishing the corroboration required by the statute. Code, Article 35, Sec. 4. It is true that where there is no possibility of collusion, only slight corroboration is necessary. Heinmuller v Heinmuller, 133 Md. 491, 494, 105 A. 745; Appel v. Appel, 162 Md. 5, 158 A. 65; Timanus v. Timanus, 177 Md. 686, 10 A.2d 322. However, the corroboration must be present.

We have recently had occasion in two cases to state the law applicable to the case before us. In Wysocki v. Wysocki Md., 42 A.2d 909, 910, the Court said: 'It is equally well settled that the mere fact that the husband or wife ceases to occupy the bed or room in which they have been accustomed to sleep and thereafter occupies alone another room in the house, is not necessarily a withdrawal of the marital right from the other. The determining factor is the continuous refusal, without just cause or reason, to fullfill the marital obligation, and the burden is upon the plaintiff to prove such refusal.' In Miller v. Miller, Md., 42 A.2d 915, 917, are found the following statements: 'The matrimonial offense of abandonment and desertion contains two inherent elements: (1) the ending of cohabitation, and (2) the intention of the offending party to desert.' 'The intention, corresponding to the animus non revertendi in the law of domicil, must be definite that the marital relation shall no longer exist.'

The facts in the case before us are that the parties were married February 28, 1927, and had one child, now fifteen years old. The husband was a salesman for a time, but after 1929 did not travel. In that year, he and his wife came to Mount Airy to live in the home of the wife's mother, Mrs. Hipsley where they remained until 1941. The husband operates a motion picture theatre in Mount Airy, and in 1941, while the Hipsley home was being remodeled, the family moved to an apartment over the theatre, where they still reside. Since August 1944, the husband has been sleeping on the stage in the theatre. The husband said that his wife refused to have intercourse with him in 1936, when they were occupying a room in the Hipsley home, and that he did nothing further about this situation until about a year and a half ago. In 1939, the husband talked to his brother-in-law, Horace Hipsley, about the matter. Hipsley later talked to both of the parties, and there was an apparent agreement of reconciliation. At that time the husband and wife were occupying separate rooms. After this conversation, the husband testified, the wife came into his room, but still refused him, and they never slept together afterwards. About the same time, the husband talked to the minister, but did not want the minister to do anything. Subsequently, in...