Melson v. Melson

• Decision Date: 28 June 1926
• Docket Number: 31.
• Citation: 134 A. 136,151 Md. 196
• Parties: MELSON v. MELSON.
• Court: Maryland Court of Appeals

134 A. 136

151 Md. 196

MELSON v. MELSON.

No. 31.

Court of Appeals of Maryland

June 28, 1926

Appeal from Circuit Court, Wicomico County, in Equity; Joseph L Bailey, Judge.

"To be officially reported."

Suit by Ronie L. Melson against John G. Melson. Decree for complainant, and defendant appeals. Reversed in part affirmed in part, and remanded.

Argued before BOND, C.J., and URNER, DIGGES, PARKE, and WALSH, JJ.

F. W C. Webb and Carroll E. Bounds, both of Salisbury (Woodcock & Webb and Miles, Bailey & Miles, all of Salisbury, on the brief), for appellant.

Arthur E. Williams, of Salisbury (Williams & Williams, of Salisbury, on the brief), for appellee.

PARKE J.

John G. Melson, the appellant, was married to Ronie L. Melson, the appellee, on March 4, 1908, and they lived together in Salisbury until October 5, 1921, when they permanently separated. On March 8, 1923, the spouses entered into a separation agreement and a second agreement providing for the control, custody, and support of their only child, Maude Virginia Melson, who was born on August 3, 1913. The bill in this cause was filed on December 26, 1924, by the wife, alleging desertion as her ground for an absolute divorce, and setting up the nonperformance by the husband of his contractual obligations under the agreement of March 8, 1923, to contribute to the support of the infant child, and also the insufficiency of the amount the husband had agreed to pay for the child's support. In addition to the absolute divorce asked, the relief prayed for included alimony for the support of the wife and maintenance for the daughter and an allowance for counsel fees. The court passed a nisi order granting a counsel fee of $50. The husband resisted this order on the ground that the wife had covenanted in the articles of separation, which had been fully performed by the husband, that she would not "institute any action or civil process, or proceeding whatever, against the said husband for support, maintenance, alimony, or any other charge or liability whatsoever, except personal injury or wrongs." The court found this objection insufficient, and passed a subsequent order allowing a counsel fee to complainant's solicitors of $25.

After the cause was at issue, testimony was taken by both parties, and, on the submission for decree, the chancellor dissolved the marriage on the ground of desertion, granted the wife alimony in the sum of $520 payable quarterly, and awarded the custody and guardianship of the infant to the mother, and charged her with the maintenance of the child out of the alimony allowed. The appeal by the husband is from this decree. The testimony supported the charge that the husband had deserted the wife, and the principal question is if the nature of the separation had not been altered under all the circumstances into one of mutual consent by the two contemporaneous agreements of the parties providing for the separation of the parties and for the custody and support of their infant child.

The two agreements mentioned were at once the outcome and the termination of a suit for a divorce a mensa et thoro, begun by the wife against the husband on April 8, 1922. The two contracts, while separately executed, were parts of one preceding agreement, and were delivered on March 8, 1923; and, pursuant to their prior undertaking, both parties signed on March 9, 1923, a joint order dismissing the then pending proceedings for divorce. At the date of the two agreements, the proof tended to show that the wife, who had the custody of the child, was without fault, and that a few days more than 17 months had passed since the husband had abandoned his wife and child. Under these circumstances, the two agreements to put their personal relations and property rights on a permanent basis, and to provide for the care and custody of the child, were consummated.

The deed of separation contained first the recital that "differences have arisen between the said husband and wife in consequence of which they have separated, and there is no probability of them living together again at any time in the future, and whereas, with a view to said change in their relations, they desire to enter into such an arrangement as to their personal and property rights as is hereinafter contained," and then, in consideration of the sum of $1,050 paid by the husband to the wife, followed the covenants of the spouses. These covenants provided, in effect, for a permanent separation, which gave to each full and complete personal liberty and independence, with the right to contract, to acquire, to hold, and to dispose of real and personal property as fully as if each were unmarried, and with a full surrender and release (a) of any existing or future right of either in any present or future property of the other by reason of their marital relation; and (b) of any right of the wife to make demand or to institute any action whatever against the husband for support, alimony, or other liability except personal injury or wrong. The other contemporaneous agreement set forth the fact that the parties had previously entered into a separation agreement of even date, and desired to provide for the custody of their child, and then stipulated (a) that the mother should have the custody and control of the infant, who was then 9 years old, with the privilege of the father to see the child under specified restrictions, and to have the child live with him one week of every month during the period school would be closed during the summer vacation period; and (b) that the father should contribute the sum of $10 a month in money, food, or wearing apparel towards the support and maintenance of the child until she became 18 years of age.

While there was no express stipulation to that effect, the agreements contemplated the permanent cessation of the marital relation in every respect; and, at a time when the innocent party was at most entitled to but a divorce a mensa et thoro, the spouses secured by contract all the actual benefits of a full divorce, except necessarily the privilege of marriage. However, this deed of settlement is not per se a bar to a suit for divorce. Walker v. Walker, 125 Md. 649, 660, 661, 94 A. 346, Ann. Cas. 1916B, 934; Lemmert v. Lemmert, 103 Md. 57, 63 A. 380; Barclay v. Barclay, 98 Md. 366, 56 A. 804; Kremelberg v. Kremelberg, 52 Md. 553, 557; Helms v. Franciscus, 2 Bland, 544, 558, 562, 565; McCubbin v. Patterson, 16 Md. 179; 2 Schouler on Marriage, etc., §§ 1304, 1306, 1309. Where there is a subsequent cause, as adultery, the injured party may obtain a divorce, although the parties were living separate under articles of agreement. 2 Schouler on Marriage, etc., § 1310. And in J. G. v. H. G., 33 Md. 401, 3 Am. Rep. 183, impotency, which, under the statute, rendered the marriage voidable ab initio and which was a cause accruing before the deed of separation, was held to be available as a sufficient ground of divorce, when accompanied by proof of exceptional circumstances explaining and qualifying the natural inference to be drawn from the execution of the deed of separation, and establishing the good faith of the complaining party. So, in Kremelberg v. Kremelberg, 52 Md. 553, by a greatly divided court, and under its unusual facts, adultery was held a sufficient ground for divorce a vinculo matrimonii at the instance of the wronged party, although articles of separation had been executed by the husband and wife after, and with knowledge of, the adultery. And in Lemmert v. Lemmert, 103 Md. 57, 63 A. 380, this court there held:

"That, if a wife abandons her husband without just cause and then files a bill for divorce a mensa et thoro and alimony, and in settlement of that they make such a contract as the one before us (although both before and after its execution the husband made a bona fide effort to have his wife return to him), the contract is not a bar to his suit for divorce on the ground of abandonment, and cannot properly be said to be an acquiescence by him in the separation, or a condonation of the offense." At page 64 (63 A. 383).

In the first two cited cases the causes for divorce were, respectively, impotency, which was a physical impediment to the consummation of marriage, and an adultery in which the injured spouse had not acquiesced. These two cases are instances of a class in which the marital offense, affording a ground for divorce, was complete before the articles of separation were executed, and so are to be distinguished from the third or last cited case of Lemmert v. Lemmert, supra, where the cause for an absolute divorce was not complete because, at the time of the agreement of separation, the desertion complained of had not continued for the requisite period of three years, and because the agreement itself became an important factor in determining the continuity of the desertion for the necessary length of time.

The importance of the agreement of separation arises from its significance as an expression of the intent of the parties with respect to marital cohabitation. The marital offense under discussion is not complete unless there coexist continuously throughout the period of three years the fact of separation and the intent to desert by the party deserting. Muller v. Muller, 125 Md. 72, 76, 93 A. 404. The statute specifically demands:

"That the party complained against has abandoned the party complaining, and that such abandonment has continued uninterruptedly for at least three years, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation." Code, art. 16, § 38.

The law excludes the possibility of an abandonment beginning in a common consent, because a joint wrong would give no cause of complaint to either; and, as...