Kelsey v. Kelsey

• Decision Date: 12 April 1946
• Docket Number: 110.
• Parties: KELSEY v. KELSEY.
• Court: Maryland Court of Appeals

46 A.2d 627

186 Md. 324

KELSEY v. KELSEY.

No. 110.

Court of Appeals of Maryland

April 12, 1946

Appeal from Circuit Court, Queen Anne's County, William R Horney, Judge.

Suit for divorce a vinculo matrimonii by Lita H. Kelsey against Carleton Kelsey. From a decree dismissing the bill complainant appeals.

Reversed and remanded with directions.

Richard Carvell, of Chestertown (S. Scott Beck, Jr. of Chestertown, on the brief), for appellant.

No brief and no appearance for appellee.

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

DELAPLAINE Judge.

Lita H. Kelsey, who resides on a farm in Queen Anne's County, brings this appeal from a decree of the Circuit Court for Queen Anne's County which dismissed her bill of complaint praying for a divorce a vinculo matrimonii from her husband, Carleton Kelsey, on the ground of abandonment.

The parties were married in Philadelphia in November, 1923, and resided in the State of Pennsylvania until April, 1942, when they established their home on the Eastern Shore of Maryland. Complainant testified that they had normal marital relations until September, 1940, when her husband contracted a venereal disease, but in April, 1942, he was completely cured. She said, however, that soon after they moved to Maryland her husband entered the armed service of the United States and was stationed in Washington. She testified that, although he occupied an apartment in that city with adequate accommodations for her, he would not permit her to live with him. Near the close of 1942 she was taken ill with gall bladder trouble, but he compelled her to stay alone on the farm. She swore that from April, 1942, until September 20, 1944, the date of the institution of her suit for divorce, her husband refused to have marital relations with her, although she repeatedly expressed her desire to resume them. She declared that, although he was a man of substantial means, he gave her only $30 a month for her support, and she found it necessary to buy second-hand clothes.

In Maryland a court of equity may decree a divorce a vinculo matrimonii when satisfied by competent testimony that the defendant has abandoned the complainant, and that such abandonment has continued uninterruptedly for at least 18 months, and is deliberate and final, and the separation of the parties is beyond any reasonable expectation of reconciliation. Acts of 1941, ch. 90, Code Supp.1943, art. 16, sec. 40. Abandonment, within the contemplation of the divorce statute means something more than merely ceasing to live together; it means a cessation of the marital relation. Thus we recognize that a desertion may exist although the husband and wife live under the same roof. Fleegle v. Fleegle, 136 Md. 630, 110 A. 889; Roth v. Roth, 145 Md. 74, 125 A. 556; Fries v. Fries, 166 Md. 604, 171 A. 703; Dotterweich v. Dotterweich, 174 Md. 697, 200 A. 523.

In the court below the chancellor admitted that he was favorably inclined toward granting an absolute divorce, but he dismissed the bill of complaint because he considered that complainant's testimony was not sufficiently corroborated. His decision was based upon the statutory provision that 'in suits, actions, bills or other proceedings instituted in consequence of adultery, or for the purpose of obtaining a divorce, * * * no verdict shall be permitted to be recovered, nor shall any judgment or decree be entered upon the testimony of the plaintiff alone; but in all such cases testimony in corroboration of that of the plaintiff shall be necessary.' Code 1939, art. 35, § 4.

It is thoroughly understood that the matter of corroboratint testimony as to injustifiable refusal of the defendant to carry out marital relations is likely to be quite difficult in most instances. As explained by the Court of Errors and Appeals of New Jersey: 'They are guarded and surrounded with the greatest secrecy, and regarded as sacred. A man and his wife are not likely to approach each other in such matters through third persons, not even through members of the other's family, nor through their family physician.' Haskell v. Haskell, 99 N.J.Eq. 399, 131 A. 876, 877. Consequently the surrounding circumstances, as evidenced by the testimony of witnesses as to the mental and physical condition of the complainant and the marital relations, which the complainant reluctantly confided to them, may be sufficient to satisfy the statutory requirement. In the instant case complainant produced three corroborating witnesses. First, a servant testified that complainant was very affectionate toward her husband but he never showed any fondness for her, and they had occupied separate bedrooms ever since they came to Queen Anne's County in April, 1942. Second, Mayor Philip G. Wilmer, of Chestertown, testified that Kelsey had confided in him in the summer of 1942, considerably more than 18 months prior to the institution of suit, that he did not have marital relations with his wife any longer. Third, Dr. Alexander C. Dick, a physician, of Chestertown, testified that after he performed an operation on Mrs. Kelsey in April, 1943, her recovery was slow, and as he was unable to locate the cause for the slowness in regaining her strength, he asked her whether she had any disturbing problem in her life, and she admitted that she had; and some time afterward, while she was convalescing and still under his professional care, she disclosed to him that her husband had refused for several years to have marital relations with her.

We are of the opinion that complaina...