Miller v. Miller

• Decision Date: 08 June 1927
• Docket Number: 10.
• Citation: 138 A. 22,153 Md. 213
• Parties: MILLER v. MILLER.
• Court: Maryland Court of Appeals

138 A. 22

153 Md. 213

MILLER v. MILLER.

No. 10.

Court of Appeals of Maryland

June 8, 1927

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

"To be officially reported."

Suit by Marie C. Miller against Paul F. Miller, her husband, for limited divorce. Decree awarding plaintiff temporary alimony and counsel fees, and defendant appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Robert H. McCauley and Levin Stonebraker, both of Hagerstown, for appellant.

Scott M. Wolfinger and C. Walter Baker, both of Hagerstown, for appellee.

DIGGES J.

The bill in this case was filed in the circuit court for Washington county by the appellee, Marie C. Miller, against Paul F. Miller, her husband, the appellant, praying for a divorce a mensa et thoro on the ground of abandonment and desertion. The bill contains a prayer for alimony pendente lite and counsel fees. Upon the filing of the bill, the chancellor passed an order that the defendant pay to the plaintiff the sum of $500 per month as alimony pendente lite and $1,000 as counsel fees, under cause to the contrary be shown by the defendant, provided a copy of the titling of the case and the order of court be served upon him. The defendant filed an answer to the bill in the nature of a demurrer, stating that the answer is intended only as an answer to show cause why alimony pendente lite and counsel fees should not be allowed, and in no sense to be considered as an answer to the bill of complaint, and praying that it be received without prejudice to his right to answer demur to, or file a cross-bill to the said bill of complaint. The answer in the nature of a demurrer further avers that no alimony pendente lite or counsel fees ought to be allowed, because the bill of complaint does not set forth such cause or causes as are grounds for a divorce, either a mensa or a vinculo. The case was heard on bill and answer, together with testimony taken as to the financial worth of the defendant. Subsequently the chancellor passed a decree awarding the plaintiff the sum of $300 per month alimony pendente lite, accounting from the 26th day of July, 1926, the date of the filing of the bill, and the further sum of $1,000 as counsel fees. From that decree the appeal here was taken.

In the case of Wilson v. Wilson (No. 19) 137 A. 354, January term, 1927, it was said:

"When the allegations of the bill are sufficient to support either a divorce a mensa et thoro or a vinculo matrimonii, they are sufficient to support a bill for alimony alone. Outlaw v. Outlaw, 118 Md. 502, 84 A. 383; Hood v. Hood, 138 Md. 360, 113 A. 895, 15 A. L. R. 774; Polley v. Polley, 128 Md. 63, 97 A. 526; Hoffhines v. Hoffhines, 146 Md. 350, 126 A. 112, 38 A. L. R. 332."

The correctness of the rule as above stated is not questioned by the appellant; his contention being that the bill in this case is insufficient to base a decree for divorce either a vinculo matrimonii or a mensa et thoro. The single question, therefore, which we are asked to determine, is, Do the allegations and prayers of the bill of complaint set out such facts which, if proved, would entitle the plaintiff to a divorce of either description?

The bill of complaint, in substance, sets forth that the plaintiff and defendant were married in 1911; that two daughters survive as the issue of said marriage, aged 14 and 8, respectively; that they lived at Hagerstown, Md., and at Atlanta, Ga., after the marriage until about May 6, 1917, when the defendant abandoned the plaintiff and gave her no information as to where he intended to go; that about 14 months after this desertion she learned that the defendant had enlisted in the military service and was in France; that some time in September, 1922, after the defendant's return from France, at his solicitation she came to Hagerstown and took up her residence with the defendant, but that he showed no affection towards her, persistently and contemptuously slighted, ignored, and insulted her, and refused to cohabit with her; which conduct and demeanor of the defendant continued until some time in November, 1925, when he finally left the house where the plaintiff and her children were then domiciled, and took up his abode elsewhere in Hagerstown, and has continuously since said time lived separate and apart from the plaintiff and their children, and has persistently refused to permit the plaintiff to live with him as his wife. The bill further alleges that the plaintiff was a good, kind, faithful and affectionate wife to her said husband, and has never given him cause to desert and abandon her or refuse to live with her as his wife; that she is in no wise responsible for said separation; that she has at all times been willing and anxious to live with the defendant and do and perform in all respects her wifely duties, but that the defendant has prevented the same, and has shown a steady indifference and growing dislike and lack of affection for the plaintiff and their children, which is manifested by showing no concern in the welfare of his family, his failure to visit his children, and his amours and repeated indiscretions at Hagerstown and elsewhere since marriage with sundry loose and profligate female persons. The prayers of the bill are for divorce a mensa et thoro, for the custody of the infant children, and that the defendant be charged with their maintenance and support, and for alimony pendente lite and counsel fees. There is also a prayer for general relief.

It will be seen from the above allegations that the defendant has continuously refused to cohabit with the plaintiff since September, 1922, for a period of more than 3 years before the filing of the bill of complaint, although he did not actually leave the domicile of the plaintiff until about November, 1925. The law in this state is settled that the refusal of one spouse, without just cause, to cohabit with the other is an act amounting to desertion on the part of the one so refusing. In the case of Klein v. Klein, 146 Md. 27, 125 A. 728, the rule is thus stated:

"Abandonment or desertion, as a marital offense, consists in the voluntary separation of one of the married parties from the other, or the refusal to renew suspended cohabitation, without justification either in the consent or the wrongful conduct of the other party. Bishop on Marriage, Divorce and Separation, vol. 1, §§ 1662, 1663; Gill v. Gill, 93 Md. 650 [652, 49 A. 557]; Taylor v. Taylor, 112 Md. 666 ; Buckner v. Buckner, 118 Md. 101 [84 A. 156, Ann. Cas. 1914B, 628]."

See, also, Roth v. Roth, 145 Md. 83, 125 A. 556; Ruckle v. Ruckle, 141 Md. 213, 118 A. 472; Martin v. Martin, 141 Md. 185, 118 A. 410; Fleegle v. Fleegle, 136 Md. 631, 110 A. 889; Owings v. Owings, 148 Md. 124, 128 A. 748.

In this case the desertion on the part of the defendant had continued for more than 3 years before the filing of the bill, a sufficient length of time to have entitled the plaintiff to a divorce a vinculo. The contention of the appellant is that the prayer of the plaintiff being for a divorce a mensa, while the allegations show her entitled to a divorce a vinculo, the court is powerless to pass any decree of divorce, and therefore, not being able to decree a divorce of either description, the decree providing for alimony pendente lite and counsel fees is erroneous. He relies on the case of Stewart v. Stewart, 105 Md. 297, 66 A. 16, in support of that proposition. In that case the bill was for a divorce a mensa, and the ground alleged was adultery, which is a cause for divorce a vinculo alone, thus presenting an entirely different case from the one now under consideration. The causes entitling a party to a divorce in this state are fixed by statute, certain causes entitling a party to a divorce a vinculo, and certain causes to a divorce a mensa. These are contained in sections 38 and 39 of article 16 of the Code of 1924; section 38 being:

"Upon a hearing of any bill for divorce, the court may decree a divorce a vinculo matrimonii for the

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