Roberts v. Roberts, 178

• Decision Date: 15 June 1951
• Docket Number: No. 178,178
• Citation: 82 A.2d 120,198 Md. 299
• Parties: ROBERTS v. ROBERTS.
• Court: Maryland Court of Appeals

Page 299

198 Md. 299

82 A.2d 120

ROBERTS v. ROBERTS.

No. 178.

Court of Appeals of Maryland.

June 15, 1951.

Thos. E. Mason, of Baltimore (Jerome A. Loughran, of Ellicott City, on the brief), for appellant.

Charles E. Hogg, of Ellicott City, for appellee.

Before MARBURY, Chief Judge, and COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

This case arises in connection with a bill for divorce filed by the appellant against the appellee. The original bill was filed on July 8, 1948, asking for a divorce a vinculo. Defendant failed to appear, a decree pro confesso was entered, and testimony was taken before an examiner to substantiate the allegations of the bill. The ground on which the appellant then asked for divorce was constructive desertion. Before any final decree was entered, the father of the appellee filed a petition alleging that although the appellee had never been adjudicated incompetent and had no legally constituted guardian, she was laboring under such mental incapacity that she was unable to defend the suit. Thereupon a guardian ad litem was appointed, and he then filed a petition requesting that the decree pro confesso be stricken out. This was done on the 14th of September. The court granted the guardian ad litem the right to file an answer, and also granted leave to take testimony. The ordinary formal answer then was filed by the guardian ad litem, submitting the rights of the appellee to the protection of the court, and thereafter the appellant asked and received leave to file an amended bill. In the amended bill, he asked for a divorce a vinculo, re-alleging constructive abandonment, and further alleging that the appellee was permanently and incurably insane, with no hope of recovery, and had been in such condition since July 27, 1937, at which time she was admitted to Sheppard and Enoch Pratt Hospital. The guardian ad litem answered this amended bill, denying the material allegations and stating that the appellee had not been a patient in any institution or on probation from, or under the supervision of, any institution for a period of three years before the filing of the amended bill of complaint. Thereafter appellant filed a petition for a mental examination of the appellee under Discovery Rule 5 of the General Rules of Practice and Procedure of this court. Flack's 1947 Supp. Annotated Code, p. 2038. This was opposed and denied by the court, and from its order this appeal was taken. The order was that the prayer of the petition be denied 'without prejudice to the plaintiff's right to renew his application for the mental examination of the defendant in the event such defendant's mental condition becomes material to some issue involved herein.'

When the Legislature added to the causes for divorce that of permanent and incurable insanity, it did not leave this question to be determined as other questions are determined, by general proof, but required certain specific facts to be shown. No divorce on such grounds could be granted unless the person claimed to be insane should first have been confined in an insane asylum, hospital or other similar institution for a period of not less than three years prior to the filing of the bill, and, second, not unless the court should find from the testimony of two or more physicians competent in psychiatry that such insanity is permanently incurable, with no hope of recovery. We had this statute before us in the case of Dodrer v. Dodrer, 183 Md. 413, 37 A.2d 919, and...