Ricketts v. Ricketts

• Decision Date: 28 July 2006
• Docket Number: No. 136, September Term, 2003.,136, September Term, 2003.
• Citation: 393 Md. 479,903 A.2d 857
• Parties: Robert M. RICKETTS, Jr. v. Mary C. RICKETTS.
• Court: Court of Special Appeals of Maryland

Page 857

903 A.2d 857

393 Md. 479

Robert M. RICKETTS, Jr. v. Mary C. RICKETTS.

No. 136, September Term, 2003.

Court of Appeals of Maryland.

July 28, 2006.

COPYRIGHT MATERIAL OMITTED

Richard D. Rosenthal (Tydings & Rosenberg L.L.P., on brief), Baltimore, MD, for Appellant.

William P. Englehart, Jr. (Nolan, Plumhoff & Williams, Chtd., on brief), Towson, MD, for Appellee.

Argued before BELL, C.J., and RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BELL, C.J.

The issues presented by this case are: first, whether a spouse's complaint for a limited divorce alleging constructive desertion based on lack of marital relations may be maintained when both parties continue to live under the same roof, albeit not in the same bedroom and without cohabitation; and, second, whether, notwithstanding the parties' continued living under the same roof,¹ a complaint for custody and visitation of the parties' children may be maintained. We shall hold that, under these circumstances, all of the relief sought by the complaint is available to a complainant and, therefore, the complaint in this case should not have been dismissed.

I.

The appellant, Robert M. Ricketts, Jr. (sometimes, "the appellant" or "Mr. Ricketts"), and Mary C. Ricketts, the appellee (sometimes, "the appellee" or "Mrs. Ricketts"), were married on June 13, 1981 and that union produced three children: Robert III, now emancipated and, thus, not subject to this Court's jurisdiction, Kathryn, who was born in 1987 and is emancipated, and Lawrence, who was born in 1989. It is unclear from the record when the parties' relationship began to deteriorate, but at some point, according to Mr. Ricketts, Mrs. Ricketts "forced [him] out of the bedroom, thus terminating their marital relationship." Since that time, he alleges, the parties have not had marital relations, although they have continued to reside in the marital household with their children, albeit in separate bedrooms.

On July 16, 2002, Mr. Ricketts filed a complaint seeking a limited divorce and custody of their two minor children. He alleged, as grounds for the divorce, constructive desertion, offering in support, Mrs. Ricketts's alleged denial of marital relations. On October 16, 2002, Mrs. Ricketts filed a Motion to Dismiss,² arguing that because the parties continued to live under the same roof, had not separated and, therefore, were not living separate and apart,³ Mr. Ricketts's complaint for divorce was "fatally defective" and, thus, "must be dismissed." She made the same argument with regards to Mr. Ricketts's complaint for custody, stating that it too was "fatally defective . . . because the parties had not separated and were not living apart at the time of the filing of the Complaint." Responding to the appellee's motion, the appellant admitted that the parties were still living together in the same house, under the same roof,⁴ but stated that this did not affect the validity of his complaint or the availability of the relief sought, i.e. limited divorce and custody.

The Circuit Court for Carroll County held a hearing on the Motion to Dismiss and the Response to the Motion to Dismiss. The court granted the appellee's Motion to Dismiss, without explanation.

Mr. Ricketts timely noted an appeal of the judgment dismissing his complaint to the Court of Special Appeals. While the case was pending in that court and prior to any proceedings, this Court, on its own initiative, issued the writ of certiorari. Ricketts v. Ricketts, 380 Md. 230, 844 A.2d 427 (2004).

II.

A limited divorce,⁵ which may be decreed for a limited or an indefinite period, Md.Code (1984, 2004 Repl.Vol.), § 7-102(c) is "one from bed and board. It grants unto the injured spouse the right to live separate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds." Courson v. Courson, 213 Md. 183, 188, 129 A.2d 917, 920 (1957). See Thomas v. Thomas, 294 Md. 605, 609, 618, 451 A.2d 1215, 1217, 1222 (1982), noting, in addition, that "[t]his Court has said that `a divorce a mensa et thoro is practically nothing more than judicial permission to live separate and apart,'" quoting Dougherty v. Dougherty, 187 Md. 21, 31, 48 A.2d 451 (1946). This is in contrast to an absolute divorce,⁶ which effects a complete severance of the marital bond and entitles either of the parties, or both, to remarry. Crise v. Smith, 150 Md. 322 326, 133 A. 110, 111 (1926) (divorce a vinculo matrimonii ends all rights of either spouse dependent on marriage). See also Black's Law Dictionary, Divorce, (8th Ed.2004), equating an absolute divorce with a divorce a vinculo matrimonii.

Among the grounds for a limited divorce is desertion. Md.Code (1984, 2004 Repl.Vol.), § 7-102(a)(3) of the Family Law Article.⁷ Desertion may be constructive or actual. See, e.g., Walker v. Walker, 209 Md. 428, 431, 121 A.2d 195, 198 (1956). We have defined actual desertion as

"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 . . . [Furthermore,] the separation and intention to abandon must concur, and desertion does not exist without the presence of both. The two need not begin at the same time, but desertion begins whenever to either one the other is added."

Boyd v. Boyd, 177 Md. 687, 688, 11 A.2d 461, 464 (1940) (citations omitted).

What is required to constitute constructive desertion was addressed in Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609 (1952). In that case, we said

"It is accepted that any conduct of a husband that 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. Sullivan v. Sullivan, , 87 A.2d 604, 607 [(1952)]. Any misconduct of the husband will justify the wife in leaving him when it makes it impossible for her to live with him without loss of her health or self-respect, or gives her reasonable apprehension of bodily injury. If the husband's misconduct has been such as to render continuance of the marriage relation unbearable, justifying the wife in leaving him, he is the one who is guilty of desertion. Polley v. Polley, 128 Md. 60, [66,] 97 A. 526, [529 (1916)]; Schwartz v. Schwartz, 158 Md. 80, 90, 148 A. 259[, 262-63 (1930)]; Singewald v. Singewald, 165 Md. 136, [147,]166 A. 441[, 446 (1933)]; Kline v. Kline, 179 Md. 10, [13,] 16 A.2d 924[, 925 (1940)]; Fischer v. Fischer, 182 Md. 281, [286,] 34 A.2d 455[, 457 (1943)]; Hockman v. Hockman, 184 Md. 473, [478,] 41 A.2d 510[, 513 (1945)]; Miller v. Miller, 185 Md. 79, [82,] 42 A.2d 915[, 917 (1945)]; Bradshaw v. Bradshaw, 189 Md. 322, [325,] 55 A.2d 719[, 720 (1947)]; Gold v. Gold, 191 Md. 533, 539, 62 A.2d 540[, 543 (1948)]."

Id. at 290, 89 A.2d at 612-13. See Murphy v. Murphy, 248 Md. 455, 460, 237 A.2d 523, 525-526 (1968); Ballan v. Ballan, 251 Md. 737, 740-743, 248 A.2d 871, 872 (1969), both cited by Deckman v. Deckman, 15 Md.App. 553, 560, 292 A.2d 112, 115-116 (1972), for the proposition that it is constructive desertion when the misconduct of one spouse "makes it impossible for the other to continue to live with the erring spouse without loss of his or her health, or self respect or gives reasonable apprehension of bodily injury will justify the innocent spouse in leaving the other on the grounds of `constructive desertion.'" Unlike actual desertion, where it is the party deserted who has the cause for divorce, in instances of constructive desertion, it is the departing party who has the cause of action for divorce.

To be sure, both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home. We have held, however, that constructive desertion may occur where both parties continue to live under the same roof. In Scheinin, we were emphatic and clear:

"It is beyond question that there may be a desertion although the husband and wife continue to live under the same roof. For desertion, as applied to husband and wife, signifies something more than merely ceasing to live together. It means ceasing to live together as husband and wife."

Id., at 290-91, 89 A.2d at 613. See Mower v. Mower, 209 Md. 413, 417, 121 A.2d 185, 186-187 (1956); Kelsey v. Kelsey, 186 Md. 324, 326, 46 A.2d 627, 628 (1946); Dotterweich v. Dotterweich, 174 Md. 697, 200 A. 523, 523-524 (1938); Fries v. Fries, 166 Md. 604, 607-608, 171 A. 703, 704 (1934); Klein v. Klein, 146 Md. 27, 33, 125 A. 728, 730 (1924); Roth v. Roth, 145 Md. 74, 125 A. 556 (1924); Fleegle v. Fleegle, 136 Md. 630, 633, 110 A. 889, 890 (1920). We have explained:

"the true doctrine is believed to be that the statutory term `desertion,' as applied to husband and wife, means a cessation of the marital relation; and this doctrine is in accord with the general principles of the divorce law . . . [d]esertion implies something more than merely ceasing to cohabit or live together; for, as applied to husband and wife, it means the ceasing to live together as husband and wife."

Fleegle, 136 Md. at 634, 110 A. at 890. See also Crumlick v. Crumlick, 164 Md. 381, 381, 165 A. 189, 189 (1933). Thus, "it is unquestionably the law in this State that permanent refusal of either the husband or the wife to have sexual intercourse with the other spouse, from no consideration of health or other good reason, constitutes matrimonial desertion although the parties continue to live in the same house." Mower v. Mower, 209 Md. 413, 417, 121 A.2d 185, 186-187 (1956) (citations omitted). The fact that the spouses sleep in separate bedrooms or that they have ceased engaging in sexual relations does not per se establish constructive desertion, however. Whitehurst v. Whitehurst, 257 Md. 685, 690, 264 A.2d 822, 825 (1970); Parsons v. Parsons, 255 Md. 602,...