Miller v. Miller

• Decision Date: 14 June 1945
• Docket Number: 51.
• Citation: 42 A.2d 915,185 Md. 79
• Parties: MILLER v. MILLER.
• Court: Maryland Court of Appeals

42 A.2d 915

185 Md. 79

MILLER v. MILLER.

No. 51.

Court of Appeals of Maryland

June 14, 1945

Appeal from Circuit Court, Prince George's County; Charles C Marbury, Judge.

Action by Mary E. Miller against Richard T. Miller for divorce.From a decree granting complainant a divorce a mensa et thoro and the sum of $15 per week as alimony, the defendant appeals.

Decree reversed in part and affirmed in part, and case remanded for the passage of a decree in accordance with opinion.

Walter L. Green, of Hyattsville (Green & Powers and Cornelius Whalin, all of Hyattsville, on the brief), for appellant.

Robert W. McCullough, of Washington, D. C., for appellee.

Before DELAPLAINE, COLLINS, GRASON, MELVIN, HENDERSON, and MARKELL JJ.

DELAPLAINE Judge.

Richard T. Miller, of Riverdale, a taxicab driver, appeals here from a decree of the Circuit Court for Prince George's County awarding his wife, Mary E. Miller, a divorce a mensa et thoro and the sum of $15 per week as alimony.

The parties were married in 1940.Each had been married before.In the summer of 1942complainant left her husband for about one week; but he located her at the home of her first husband's sister at Triangle, Virginia, and persuaded her to return home.In the summer of 1943she left again, this time for about two months, going first to the home of her first husband's brother in Washington, and then to Triangle Virginia; but again he followed her and brought her back.Complainant, admittedly nervous and dissatisfied, claims that she left her husband on account of her health.One of her chief complaints was that he drove his taxicab in Washington at night and he was not attentive to her.She also objected when he served as a special policeman for the town of Riverdale.At present she is visiting a married daughter in Washington.It appears that on July 8, 1944, she went to her daughter's home on Ninth Street to help her with her household work after she had sprained her ankle.Defendant, supposing she would remain only a few days, was provoked when he did not hear from her for a period of ten days.When she finally phoned on July 18 that she was ready to come home, he refused to call for her.The next six weeks brought no effort toward reconciliation; but about the 1st of September defendant called to see his wife, and took her out to dinner and a picture, show, and before leaving her about 11 o'clock, she agreed to cook his Sunday dinner.In accordance with the agreement, he called for her on Sunday morning about 5 o'clock and took her home, and she prepared the dinner.That nigth they slept together.On Monday afternoon, however, he took her back in his taxicab to her daughter's home.Nothing further was heard from her until October 31, when she entered suit for divorce.

Since 1842, when the Legislature of Maryland conferred jurisdiction in all applications for divorce upon the courts of equity of this State, these courts have been empowered to decree divorces a mensa et thoro for the following causes: (1) cruelty of treatment, (2) excessively vicious conduct, and (3) abandonment and desertion.Acts of 1841, ch. 262, Acts of 1872, ch. 272.Acts of 1920, ch. 574, Code 1939, art. 16, sec. 41.In the case before uscomplainant makes no allegation of cruelty of treatment or excessively vicious conduct.She charges that her husband deserted her on July 18 when he refused to come for her.The matrimonial offense of abandonment and desertion contains two inherent elements: (1) the ending of cohabitation, and (2) the intention of the offending party to desert.Miller v. Miller,153 Md. 213, 219, 138 A. 22;Simmont v. Simmont,160 Md. 422, 425, 153 A. 665;Timanus v. Timanus,177 Md. 686, 10 A.2d 322;Boyd v. Boyd,177 Md. 687, 11 A.2d 461;Dunnigan v. Dunnigan,182 Md. 47, 31 A.2d 634.The intention, corresponding to the animus non revertendi in the law of domicil, must be definite that the marital relation shall no longer exist.1 Bishop, Marriage, Divorce and Separation, secs. 1662, 1663, 1702.

The law is now established in this State that any conduct of a husband which renders the marital relation intolerable and compels the wife to leave him may justify a divorce on the ground of constructive desertion, even though the conduct may not justify a divorce on the ground of cruelty.Schwartz v. Schwartz,158 Md. 80, 90, 148 A. 259;Singewald v. Singewald,165 Md. 136, 147, 166 A. 441;Kruse v. Kruse,179 Md. 657, 663, 22 A.2d 475;Fischer v. Fischer,182 Md. 281, 34 A.2d 455;Hockman v. Hockman, Md.,41 A.2d 510;Collins v. Collins, Md.,42 A.2d 680.But the law of Maryland does not countenance the separation of husband and wife for slight or trivial reasons, but only upon the clearest and most satisfactory proof of facts showing that it is impossible for the parties to discharge the duties of married life.Levering v. Levering,16 Md. 213, 217;Ewing v. Ewing,154 Md. 84, 140 A. 37;Kline v. Kline,179 Md. 10, 15, 16 A.2d 924.This doctrine applies with special force to divorces a mensa et thoro.Chief Judge Alvey said: 'Public policy and morality alike condemn these judicial separations of husband and wife, except where it cannot be avoided; for, as it has been justly said, such separations throw the parties back upon society in the dangerous character of a wife without a husband and a husband without a wife.'Shutt v. Shutt,71 Md. 193, 197, 17 A. 1024, 1025, 17 Am.St.Rep. 519.In more recent years, as the attitude of the public has become more liberal toward divorced persons, we have recognized in Maryland that the difficulty and the responsibility of the duty cast upon equity courts to adjudge applications for divorce has increased, rather than diminished, because the law of this State remains substantially the same as it was enacted in 1842, while the people often overlook what the courts are bound to recognize, that the State, representing society as a whole, has a real and vital interest in avoiding dissolution of the marital relation except for grave and weighty causes.Gellar v. Gellar,159 Md. 236, 241, 150 A. 717.Thus we hold that no misconduct of the husband will justify a wife in leaving him unless it is such as will make it impossible for her to continue cohabitation without loss of her safety, health or self-respect, or is such as will cause reasonable apprehension of bodily suffering.Marital indifference and neglect, use of vulgar and abusive language, and even occasional acts of violence, if not in such a manner and degree as to endanger the wife's personal security or health, are not sufficient to justify abandonment.Porter v. Porter,168 Md. 296, 303, 177 A. 464.

In this case complaint failed to show that her husband was guilty of any misconduct justifying her in leaving him.She claims that he said in July that he would not let her come back.But the fact remains that he did take her back in September.Moreover, she admits that she tember.Moreover, she admits that she clothes, for she had taken to Washington on July 8 only one extra dress and pair of shoes.It is quite evident that she was not anxious to stay home.The chancellor however, accepted her version that her husband would not let her stay....