Owings v. Owings

• Decision Date: 09 April 1925
• Docket Number: 34.
• Parties: OWINGS v. OWINGS.
• Court: Maryland Court of Appeals

128 A. 748

148 Md. 124

OWINGS v. OWINGS.

No. 34.

Court of Appeals of Maryland

April 9, 1925

Appeal from Circuit Court, Carroll County, In Equity; Robert Moss and Wm. Henry Forsythe, Jr., Judges.

"To be officially reported."

Suit for divorce by William H. Owings against Mamie E. Owings. From decree of dismissal, plaintiff appeals. Affirmed.

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

James E. Boylan, Jr., of Westminster, and W. Irvine Cross, of Baltimore (Jas. A. C. Bond, of Westminster, on the brief) for appellant.

Edward O. Weant and Theodore F. Brown, both of Westminster, for appellee.

URNER J.

The decree in this case dismissed a bill of complaint in which the appellant alleged that his wife had abandoned and deserted him by refusing, without just cause, to have sexual intercourse with him during a period of more than five years prior to the suit, and that for six months preceding the filing of the bill they had been wholly separated. The parties have been married about 20 years. They have two children, a son and daughter, who are now 14 and 12 years of age, respectively. The relations of the parties have been exceedingly unfortunate. While their complete separation did not occur until the time mentioned in the bill, their normal associations as man and wife had long been discontinued. It is undisputed that sexual intercourse between them had not occurred for a period of more than three years before the pending divorce suit was instituted.

If, as the bill of complaint alleges, the husband's conduct towards his wife was "kind, affectionate, and above reproach," and she unjustifiably refused, for the period mentioned, to permit him to have sexual intercourse with her then unquestionably her conduct would have to be regarded as an abandonment of her husband, and, in view of its duration, he would be entitled to an absolute divorce. Klein v. Klein, 146 Md. 27, 125 A. 728; 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. But if, as the answer avers, the suspension of their conjugal relations was caused by the husband's cruel treatment of his wife, then his suit for a divorce is clearly not maintainable. Young v. Young, 136 Md. 84, 110 A. 207; Pattison v. Pattison, 132 Md. 362, 103 A. 977; Polley v. Polley, 128 Md. 60, 97 A. 526. The question we are to determine upon the evidence in the record is whether the lower court was wrong in deciding that the husband's conduct was responsible for the separation, and that his bill of complaint should consequently be dismissed.

The testimony proves beyond controversy that since 1920 the feeling of the appellant and appellee towards each other has been one of increasing aversion. Their early affection gave place to a mutual and positive dislike, which naturally tended to promote an interruption of their conjugal intercourse. The wife's antipathy towards her husband was manifested by expressions of scorn and hatred. There is also testimony, which is contradicted, that she attempted against him certain acts of violence. The husband's conduct towards his wife is proved to have been neglectful and abusive. When she had to undergo a serious operation in 1920 he did not visit or communicate with her at the hospital where she was a patient, and he appeared to be indifferent as to her condition. During three winters he made no use of...