Nichols v. Nichols

• Decision Date: 12 February 1943
• Docket Number: 2.
• Citation: 30 A.2d 446,181 Md. 392
• Parties: NICHOLS v. NICHOLS.
• Court: Maryland Court of Appeals

30 A.2d 446

181 Md. 392

NICHOLS v. NICHOLS.

No. 2.

Court of Appeals of Maryland

February 12, 1943

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr. Judge.

Suit for divorce by Albert Nichols against Samantha Brown Nichols. Decree for plaintiff and defendant appeals.

Reversed and bill dismissed.

Jerome A. Loughran, of Ellicott City, for appellant.

F. Neal Parke, of Westminster, for appellee.

Before SLOAN, DELAPLAINE, COLLINS, MARBURY, GRASON and MELVIN, JJ.

MELVIN Judge.

This is a suit for divorce a vinculo matrimonii under the provisions of the so-called 'Five Years Voluntary Separation Act' (Chapter 396, Acts 1937, Code, Sec. 40, Art. 16). The basic allegation of the bill of complaint filed by the husband (appellee) is in the words of the Statute, as follows: That the plaintiff and the defendant 'have voluntarily lived separate and apart, without any cohabitation, for more than five consecutive years prior to the filing of this bill, and such separation is beyond any reasonable expectation of reconciliation.'

The wife (appellant) answered the bill, denying this allegation and averring that, on the contrary, the plaintiff abandoned and deserted her on October 18, 1936. The answer also contains a petition for alimony pendente lite, permanent alimony and counsel fee, but these questions were not submitted for an order and the final decree is silent as to alimony. It does include the allowance of a counsel fee of $35 for defendant's solicitor. This appeal is from the decree granting the plaintiff a divorce, as prayed.

The issue arising directly from the record in this case is whether or not the separation of these parties was mutually voluntary in its inception and continued as such for 'five consecutive years', there being no dispute in the testimony that the separation is 'beyond any reasonable expectation of reconciliation'.

Since the passage of the Act in 1937, exactly five cases under its provisions have been passed upon by this court, in all of which a definition has been either given or re-affirmed of the word 'voluntarily', within the meaning of the Act. These cases are, in order: Campbell v. Campbell, 174 Md. 229, 198 A. 414, 116 A.L.R. 939; France v. Safe Deposit & Trust Co., 176 Md. 306, 4 A.2d 717; Miller v. Miller, 178 Md. 12, 11 A.2d 630; Kline v. Kline, 179 Md. 10, 16 A.2d 924; Beck v Beck, 180 Md. 321, 24 A.2d 295, 296.

The definition as thus given is that the separation must be 'mutually voluntary' and based upon an 'agreement,' for, as stated in the France case supra, the word 'voluntary' connotes an 'agreement'. This was re-affirmed in the recent Beck case, supra, and likewise in the preceding Kline case, in which the definition is paraphrased in these words: 'In order that a separation of husband and wife can be regarded as voluntary within the meaning of the statute [Chapter 396, Acts of 1937, making voluntary separation for five years ground for divorce], there must be an agreement of the parties to live apart. 'The word 'voluntary' signifies willingness. When used in reference to an act of an individual, it means that he acted of his own free will; when used in reference to a common act of two or more persons affecting their common relationship, it means that they acted in willing concert in the doing of the act'. [179 Md. 10, 16 A.2d 926.]

The law applicable to this case is, therefore, clear and well defined. It is, in brief, that in order to entitle the plaintiff here to a divorce on this particular statutory ground, he must prove that the separation between him and the defendant, which took place on October 18, 1936, was mutually voluntary as of that date.

To meet this burden of proof the plaintiff proceeded in his own testimony to base his whole case on an alleged agreement with the defendant on June 15, 1936, and not on what happened on the day of his departure in October of that year. The test is, however, whether the separation was mutually voluntary at the time it occurred.

In considering this case it is to be noted that the principals are an aged couple who were both about seventy years old when they were married in September, 1933. At that time the plaintiff was a widower with eight adult children living, and she was a spinster. It was not long before their incompatibility became manifest and there was much 'unpleasantness' between them. The first step toward a separation was taken in June, 1936, when, according to the husband, he suggested it. When asked by his counsel 'Before you separated, did you have any talk about separating', he answered 'yes, it was June 15th'. The plaintiff then proceeded to detail an alleged conversation between him and the defendant in which he testified: 'And I suggested, well, if you want to go back to Montgomery County, suppose we separate and you can go your way and I go mine, and she thought it would be all right'.

'Q. What did she say to that? A. She said 'all right', and I said, 'well, what do you want to do?', and she said, 'I can go in the old ladies home, if I can get in.' She didn't know whether she could get in, at that time, and I suggested that we live together for a couple of months, and eventually, by that time, perhaps she could get in, and that would bring it up to August 15th.

'Q. When she married you, did she have a home in Montgomery County? A. Yes.

'Q. I believe she sold that? A. She sold that.

'Q. While she was married to you? A. Yes.

'Q. On August 15th, what happened? A. On August 15th I asked her if she had any chance of getting in the old woman's home, and she never did give me any answer--never said yes or no, and I rather insisted on an answer, and she wouldn't say anything about it. That was her stand. On most of the questions I asked her in reference to herself, she never did give me any answer.

'Q. After August 15th, 1936, what happened? A. Well, on August 15th, after she wouldn't give me any answer, I said, 'Well, we will continue on for a couple more months and maybe you can know what you want to do at that time--what you can do''.

The plaintiff's testimony further shows that he then proceeded to make preparations of his own to leave, anyhow, in 'a couple more months'. This brought his deadline for leaving up to the middle of October, and every step that he took was based on the alleged agreement made with the defendant on June 15, 1936, which was, as he stated, a conditional agreement. This condition was that the wife could get in an old woman's home, which admittedly she had not been able to do by October 18, or any subsequent date.

The plaintiff must, therefore, look to some other source to establish an agreement on the part of the defendant to the separation which took place on October 18, 1936. That is to say, he must prove that she was in 'willing concert' with him in his act of leaving her at that time. The picture of facts presented by the record in this case, as of the day in question, is not one to commend itself to a Court of Equity at the suit of the plaintiff.

This picture shows an elderly wife left alone and practically destitute by her husband, without any provision whatever having been made for her future maintenance. Insofar as he was concerned, his departure was but the consummation of a prepared program, announced by him several months prior thereto and based on the condition that the wife could get in an old woman's home. It is uncontradicted in the record that he told her in August he was going to leave in the middle of October, even though he could get no answer from her, he said, as to whether or not she had been able to arrange for admission to an old woman's home, or anywhere else. Then again, in October, just a few days before he left his testimony is that he had made preparations to separate. When the day of departure came he had completed these preparations and had sent for two of his married daughters to come for him. He gave her no...