Lent v. Lent, 122

• Decision Date: 17 April 1953
• Docket Number: No. 122,122
• Citation: 202 Md. 240,96 A.2d 14
• Parties: LENT v. LENT (two cases).
• Court: Maryland Court of Appeals

Page 240

202 Md. 240

96 A.2d 14

LENT v. LENT (two cases).

No. 122.

Court of Appeals of Maryland.

April 17, 1953.

Susan Jane Hendershott, Rockville, for appellant.

No brief and no appearance for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Mary Jane Adams Lent, of Bethesda, has appealed here from a decree of the Circuit Court for Montgomery County, which dismissed her amended cross-bill for a divorce a vinculo matrimonii from her husband, Worthington C. Lent, a consulting engineer, also of Bethesda.

Appellee had instituted suit for a divorce, and the decree also dismissed his bill. He also appealed, but since he did not file a brief in this Court his appeal will be dismissed. Rule 40 of our Rules relating to Appeals provides that within 30 days after the filing of the transcript of the record in this Court, counsel for the appellant shall file 40 copies of the printed brief; and when an appellant fails to comply with this rule, the case may be dismissed on motion or by the Court of its own motion.

The parties were married in the District of Columbia in September, 1944. The bride was 22, the groom 42. It was the bride's first marriage, the groom's third. The groom's previous marriages had ended in divorce. The parties have two children, a daughter born in 1945 and a son born in 1948.

In September, 1950, appellee entered the United States Air Force with the rank of Lieutenant Colonel. The parties separated on August 15, 1951, and appellee entered suit for a partial divorce on September 14, 1951. It was testified that appellee's income was $618 per month. The Court ordered him to pay $57.50 per week as alimony pendent lite and for the support of the children.

Appellant testified at the trial that her husband lost all interest in her after the birth of their first child, and that after he entered the Air Force he repulsed all her efforts to have marital relations with him. She declared that he swore he would never touch her again, and that he has refused to have sexual intercourse with her since September, 1950. On the other hand, appellee claimed that it was not until May, 1951, that he terminated marital relations. However, he admitted that he did not want children, claiming that his financial condition did not warrant having any more. He called his wife 'careless' when she became pregnant in 1948.

Appellant testified that her husband called her 'lousy rat,' 'bitch,' and other vile names. Her witnesses corroborated her testimony that he called her offensive names in the presence of their children, and that her 'hysterical, upset condition' had reduced her to a 'nervous wreck.' Appellant further testified that while she was washing clothes in the basement of their home in Bethesda one evening in the summer of 1951, her husband struck her and threatened to kill her, so that it was necessary to call the police for protection.

Appellant further testified that on August 15, 1951, her husband treated her so harshly that she feared he would kill her. After calling the police against, she fled with the two children to the home of her mother in Washington. Appellee testified that he did not call his wife a 'prostitute,' but merely told her she was 'acting like a prostitute.' Appellant stayed with her mother until December, when she moved back into Montgomery County. She charged her husband with constructive desertion, alleging that she was compelled to leave him because of his intolerable conduct. She declared that she left 'in mortal terror.'

The chancellor stated that he was not convinced that appellee was guilty of cruelty or that his wife left him because of fear. He accordingly dismissed both the bill and the cross-bill; authorized appellee to discontinue paying alimony pendente lite; awarded the custody of the children to appellant, with the right of appellee to have the children visit him each Saturday afternoon; and ordered appellee to pay $40 per week for the support of the children.

While appellant testified in the Court below that her husband had refused to have intercourse with her since September, 1950, she conceded in her brief and also in the oral argument in the Court of Appeals that there was no corroboration of her claim that the refusal to cohabit commenced in September, 1950, and therefore she did not ask immediately for a divorce a vinculo matrimonii. The Maryland divorce statute authorizes a decree of divorce a vinculo matrimonii on the ground of abandonment when the abandonment has continued uninterruptedly for at least eighteen months, and is deliberate and final, and the separation of the parties is beyond any reasonable expectation of reconciliation. Laws 1949, ch. 520, Code 1951, art. 16, sec. 33. Appellee admitted that there has been no cohabitation since May, 1951, and appellant's cross-bill, which prayed for a divorce a vinculo matrimonii was filed in March, 1952. But appellant says that she is entitled to a divorce a mensa et thoro. We agree with her contention. The statute provides that where a divorce a vinculo matrimonii is prayed, the court may decree a divorce a mensa et thoro if the evidence supports such a decree. Code 1951, art. 16, Sec. 34; Downs v. Downs, 154 Md. 430, 434, 140 A. 831.

It is the law of this State that permanent refusal of either the husband or the wife to have sexual intercourse with the other spouse, from no consideration of health or other good reason, constitutes matrimonial desertion, although the parties continue to live in the same house. Fleegle v. Fleegle, 136 Md. 630, 110 A. 889; Miller v. Miller, 153 Md. 213, 138 A. 22; Timanus v. Timanus, 177 Md. 686, 10 A.2d 322, 324; Kelsey v. Kelsey, 186 Md. 324, 46 A.2d 627. Of course, the complainant has the burden of providing the allegation...