Levering v. Levering

• Citation: 16 Md. 213
• Parties: AARON LEVERING v. MARY E. LEVERING.
• Decision Date: 28 June 1860
• Court: Court of Appeals of Maryland

16 Md. 213

AARON LEVERING v. MARY E. LEVERING.

Court of Appeals of Maryland.

June 28, 1860

Under the Act of 1841, ch. 262, and its supplements, a divorce a vinculo, on account of abandonment of the party complaining by the party complained against, cannot be decreed, unless the court is satisfied, by competent testimony, that such abandonment has continued for at least three years, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation.

If the husband fails to supply his wife with such necessaries and comforts of life as are within his reach, and by cruelty compels her to quit him, and seek shelter and protection elsewhere, it is as much an abandonment of her by him, as if he deserts her and goes away himself.

In this case, the evidence did not sustain the charge that the husband failed or was unwilling to support his wife or share with her the fruits of his earnings, but there was proof that, on one occasion, forgetful of his duty, or impelled by the madness of intoxication, he inflicted violence on her person. For this and other ill-treatment, the wife left him and went to her father's house, where she lived for three years, apart from her husband, but the proof shows that the latter earnestly and anxiously sought to have her restored to him and to renew their marital relations. HELD:

1st. That this is not a case for a divorce a vinculo, but there being evidence of such cruelty as justified the wife in leaving the society of her husband, it is a proper case for a divorce a mensa et thoro.

2nd. There being but one child, a daughter of tender years, the court, under the power given by the 3rd sec. of the Act of 1841, ch. 262, confided her to the custody and guardianship of the mother, there being no proof or intimation of any unfitness or want of qualification on her part to take proper care of the child.

APPEAL from the Equity side of the Superior Court of Baltimore city.

Petition for a divorce a vinculo, filed on the 14th of May 1857, by the appellee against the appellant. The petition states that the parties were married on the 5th of February 1850, and avers that, within a few months thereafter, the defendant became very dissipated in his habits, and unkind and cruel in his treatment of the petitioner; that she bore and submitted to this ill-treatment, and, by every effort which an affectionate wife could make, endeavored to reclaim him and induce him to abandon his evil habits; that her efforts, however, proved ineffectual, and on the 8th of May 1854, she was compelled by his ill-treatment, not only in language but blows frequently inflicted upon her, to separate herself from him, and return to her father's house, where she has ever since resided; that from about six months after her marriage her husband has contributed nothing towards her support, and she was wholly dependent upon her father for the necessaries of life; that she has one child by the defendant a daughter about six years old, who is also with the petitioner's father, and is entirely supported by him the defendant having never contributed any thing to her support. She avers that there is no possibility of her reclaiming her husband, or of their ever living together again, and prays for a divorce a vinculo, and for general relief.

The defendant answered the petition under oath. He avers that his wife left him without just cause, but he states his belief that she was induced to do so through the solicitations of her parents, by offering and surrounding her with luxuries which his limited means were unable to afford. He denies that he ever struck his wife a blow or ever used language to her unfit to be addressed by a husband to his wife. He denies that he is or ever has been a drunkard although he admits that formerly he indulged occasionally in the use of ardent spirits, but has now abandoned such use forever. He avers that his wife and her parents knew his means when he applied for her hand--that he was a clerk at a salary of $400 per annum. The answer then shows that he made unsuccessful efforts, on borrowed capital, to improve his condition, but failed. He denies the charge that he has contributed nothing towards the support of his wife from six months after their marriage, and avers that from the time of their marriage until his wife's desertion and separation from him, his whole energies were strained to provide, to the utmost of his abilities, for his wife and child, and states what these exertions were, and that he would now gladly and cheerfully expend his whole time for their comfort. He avers that he has frequently sought to reclaim his wife, and since her desertion of him, has repeatedly sought to have an interview with her, but her parents have, up to this time, prevented it. He denies that there is no possibility of their ever living together again. On the contrary, he avers that they can live together and happily. He says he cannot possibly furnish his wife with all the luxuries she may now enjoy, but, let his means be great or small, he is ready joyfully to share them with her. The answer then, whilst resisting the application for a divorce, states that he has abstained from claiming a restitution of conjugal rights, only because his means and circumstances did not permit him to support his wife and child as he felt they deserved, and to avoid paining his wife's feelings by an angry and excited collision, that must have occurred in the discussion of the subject between her parents and himself.

Testimony was then taken on both sides, the purport of which is sufficiently stated in the opinion of this court. The following opinion was delivered by the court below (LEE, J.) upon passing the decree appealed from.

" Upon a careful examination of this petition for a divorce, and the circumstances and facts disclosed by the evidence, I am of opinion that the complainant is entitled to a divorce, a vinculo matrimonii, under a construction of the Acts of Assembly referred to in the argument, and that such a case as this comes within the remedy indicated by the Act of 1849, which provides for a divorce a vinculo, where parties are living separate and apart, and have been thus separated for more than three years, with no default shown on the part of the complainant, who, in this case, was compelled by inability of her husband to maintain her, and also from ill treatment, which she alleges, to leave him and seek protection and support under her father's roof. Therefore, I, as a chancellor, must regard the abandonment as having been occasioned by the defendant, and if the complainant was compelled to leave him, (which is fully shown by the proof,) she ought to be entitled to the relief I now give, and, therefore, a decree divorcing her, a vinculo matrimonii, will be signed by me, the complainant to pay the costs."

From this decree the defendant appealed.

The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.

Wm. Schley, for the...