Parsons v. Parsons

• Decision Date: 12 November 1969
• Docket Number: No. 26,26
• Citation: 255 Md. 602,258 A.2d 437
• Parties: Nan J. PARSONS v. James F. PARSONS.
• Court: Maryland Court of Appeals

Page 602

255 Md. 602

258 A.2d 437

Nan J. PARSONS v. James F. PARSONS.

No. 26.

Court of Appeals of Maryland.

Nov. 12, 1969.

Robert J. Flynn, Upper Marlboro, for appellant.

Fred I. Simon, Bowie, for appellee.

Before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

PER CURIAM.

This case is before us on appeal from a decision of the Circuit Court for Prince George's County dismissing appellant's (wife's) cross bill of complaint for a divorce a mensa et thoro. On April 1, 1968, the appellee (husband) filed a bill of complaint for divorce a mensa alleging constructive desertion. On April 22, the appellant filed her cross bill alleging constructive desertion. At the trial, upon the conclusion of the appellee's case, his bill of complaint was dismissed for lack of corroboration. Appellant then took the stand and, after a series of questions by the trial judge, her cross bill was also dismissed apparently on the basis of the doctrine of recrimination. The following is the relevant colloquy which led the lower court to draw this conclusion:

Judge: Why did you move out of the bedroom?

Appellant: In March?

Judge: Yes.

Appellant: When I found out he was going to divorce me, and I am a Catholic, I didn't feel I should become pregnant.

Judge: There's your case Mr. Flynn, too. (Mr. Flynn being the appellant's attorney.)

The issue before this court is whether the refusal to occupy the same bedroom was sufficient proof of a marital offense on her part to justify the court in dismissing her cross bill of complaint. The doctrine of recrimination can only be applied where there is 'proof of marital offense that would constitute a ground for divorce.' Sackman v. Sackman, 236 Md. 237, 240, 203 A.2d 903 (1964). The evidence in this case does indicate a refusal by the appellant to share the same bedroom with the appellee. However, under Maryland law this is not sufficient grounds for a divorce. As we stated in Mower v. Mower, 209 Md. 413, 417, 121 A.2d 185, 187 (1956), 'It is understood, of course, that the mere fact that a husband ceases to occupy the room in which he and his wife have been accustomed to sleep and thereafter occupies alone another room in the house is not necessarily a withdrawal of marital rights from the wife which constitutes desertion within the meaning of the statute. It is only where it is without good reason that the husband leaves his wife and permanently refuses to have intercourse that the occupancy of another room constitutes desertion as a ground for divorce.' See also Fortman v. Fortman, 250 Md. 355, 243 A.2d 517 (1968). From the testimony we find no evidence which would indicate that there had been a request by the husband, yet alone, a permanent refusal to engage in intercourse by the wife. The...