Saltzgaver v. Saltzgaver

• Decision Date: 02 February 1944
• Docket Number: 10.
• Citation: 35 A.2d 810,182 Md. 624
• Parties: SALTZGAVER v. SALTZGAVER.
• Court: Maryland Court of Appeals

35 A.2d 810

182 Md. 624

SALTZGAVER v. SALTZGAVER.

No. 10.

Court of Appeals of Maryland

February 2, 1944

Appeals from Circuit Court, Carroll County; James Clark and James E Boylan, Jr., Judges.

Divorce suit by Bertha V. Saltzgaver against William H. Saltzgaver. From an order sustaining a demurrer to the petition and dismissing the bill of complaint and from an order denying plaintiff's application for suit money and counsel fees to prosecute the appeal, plaintiff appeals.

Reversed and remanded.

John Wood and Theodore F. Brown, both of Westminster, for appellant.

Ralph G. Hoffman, of Westminster, for appellee.

Before SLOAN, C.J., and COLLINS, MARBURY, MELVIN, and BAILEY, JJ.

MELVIN Judge.

The two appeals in this record are from orders of the Circuit Court for Carroll County, in Equity, dated, respectively, July 12 1943, and October 30, 1943, in a suit for divorce by the wife (appellant) on the grounds of abandonment and adultery. The first of these orders sustained a demurrer to her petition to rescind the decree of May 30, 1942, dismissing her bill of complaint and the second denied her application for suit money and counsel fee to prosecute this appeal.

The record discloses a situation, both as to the facts and the law, which calls for a fresh interpretation of the doctrine of judicial discretion, as applied to this particular kind of a proceeding, and also of the doctrine of recrimination in divorce cases in Maryland.

The parties to this suit, after having lived together as husband and wife for twenty-four years, and having had four children born to them, separated in Frederick County Maryland, on July 26, 1939, and five days later the wife (appellant) filed a suit in that County for a divorce a mensa et thoro on the ground of cruelty, or constructive abandonment. The Chancellor there, after a full hearing of the case, dismissed her bill of complaint under date of October 20, 1940, for lack of corroboration.

When the appellant left the appellee on the date mentioned, she moved at once to Westminster, in Carroll County, where she obtained employment and where, with her three minor children, she has resided ever since. Shortly after the separation the husband also moved to Carroll County in the course of his employment by the Western Maryland Railroad, and became a resident of Union Bridge. At that place, in or about July, 1940 (and three months prior to the Chancellor's decision of his wife's then pending suit for divorce in Frederick County), he began to live in open adultery with an alleged housekeeper, by whom he had a child, born on April 17, 1941.

On January 9, 1942, the wife filed a bill for divorce a vinculo matrimonii alleging abandonment and also adultery. The husband in his answer denied the abandonment and neither admitted nor denied the allegation of adultery. At the taking of testimony on the bill and answer, however, the adultery was both proved and admitted, and it was shown that at the time it began the husband and wife had not been separated longer than twelve months. Notwithstanding these facts, the Chancellor dismissed the wife's bill of complaint.

His decree was on the sole ground that she had, without justification, left her husband in July, 1939, and since that time had made no effort toward reconciliation, thus, he held, barring her own suit for divorce, in accordance with the doctrine of recrimination. This doctrine the Chancellor invoked in his opinion by relying upon authorities which deal with it generally and apply in some other jurisdictions, but which are directly at variance with the law on the subject as plainly laid down and established by judicial decision in Maryland.

This Court has expressly and definitely decided heretofore that while the doctrine of recrimination in divorce cases is recognized in Maryland, it is with the limitation that, in a suit on the ground of adultery, the recrimination charged by the defendant against the plaintiff must be for a cause a vinculo matrimonii and not for one a mensa et thoro, merely. Pryor v. Pryor, 146 Md. 683, 131 A. 47; Appeltofft v. Appeltofft, 147 Md. 603, 128 A. 273; Williams v. Williams, 156 Md. 10, 13, 142 A. 510; Jeppi v. Jeppi, 179 Md. 698, 18 A.2d 207.

Other Maryland cases in support of this application of the doctrine are: Fisher v. Fisher, 93 Md. 298, 300, 48 A. 833; Rasch v. Rasch, 105 Md. 503, 507, 66 A. 499; Green v. Green, 125 Md. 141, 143, 93 A. 400, L.R.A.1915E, 972, Ann.Cas.1917A, 175; Foxwell v. Foxwell, 118 Md. 471, 84 A. 552.

The particular language used by this Court as the basis of its ruling is that adopted in the Appeltofft case, supra [147 Md. 603, 128 A. 274], in its quotation from the Pryor case, supra, as follows: 'By the great preponderance of authorities in this country, where the statutes authorize an absolute divorce or divorce a mensa et thoro, it is fully recognized that in a suit by one spouse for a cause entitling him or her to an absolute divorce, the other spouse cannot plead as a bar in recrimination a cause entitling him or her to a limited divorce.'

In the absence of any statute on the subject, that language expresses clearly and indisputably the law of Maryland today on the doctrine of recrimination and is just as authoritative and binding on the Courts within this jurisdiction as would be a plainly worded and valid statute.

In the review of the Appeltofft case, supra, in 26 Col.L.Rev. 83, the reasons for the doctrine of recrimination are discussed and recognition given to the various interpretations of it in this country. A majority of the states by statute make recrimination a defense in one form or another. In a very few the same result is indirectly accomplished by statutes which provide that a divorce may be granted only to the innocent or injured party, and in the remaining states recrimination is held to be a defense under the common law. As pointed out in the Review, 'it is almost universally held in this country that any conduct constituting a statutory ground for an absolute divorce will bar an action for either an absolute or partial divorce.' The case of Green v. Green, 125 Md. 141, 93 A. 400, L.R.A.1915E, 972, Ann.Cas.1917A, 175, upon which the Chancellor in the instant case seemed to rely principally, is cited as one of the authorities in support of this general statement. However, the case under review (Appeltofft) is the one given as expressive of the law in Maryland on the precise point involved in the case at bar, in these words: 'Misconduct constituting ground only for a limited divorce is not a defense to an action for an absolute divorce.' See also Madden on Domestic Relations, 309; 27 C.J.S., Divorce, § 68, and note 89, in which the authority of the Pryor and Appeltofft cases is likewise recognized as stating the law for Maryland.

It is anomalous that the Green case, supra, is cited in these other two cases as recognizing the limitations upon the doctrine as therein enunciated by the Court. The Chancellor undertakes to apply that case to the one at bar by using the quotations from Brown on Divorce, page 84, stating the rule to be as follows: 'Where each of the parties has committed a matrimonial offense which is a cause of divorce, so that when one seeks for this remedy the other is equally entitled to the same, whether the offenses are the same or not, the Court can grant the prayer of neither.' In that connection he also relies upon the language in the syllabus of the Green case, as follows: 'Divorce is a remedy provided for an innocent party, and any misconduct on the part of the complainant which constitutes a ground for divorce will bar his suit, without reference to the nature of the offense of which he complains.' However, this very quotation, as shown by the body of the opinion, is taken from 14 Cyc. 650, and has this very significant addition: 'In some states, by statute or otherwise, a contrary ruling prevails and the offense must be of the same character.'

Maryland happens to be one of those states in which a contrary rule does prevail, the doctrine being limited in so many words to the kind of offenses mentioned in the Pryor-Appeltofft-Williams-Jeppi cases supra. Those, and not the Green case, are the ones which furnish the law governing this pending suit. The decision in that case was based on an entirely different situation from the one now before us. Here the defendant (husband) is the one who committed adultery, while the wife at that time was, at most, guilty of abandonment for less than the statutory period entitled him to an absolute divorce.

There the husband was suing for divorce on the ground of his wife's abandonment for over five years. It was brought out by the court examiner in taking the testimony that the husband had been guilty of adultery since his wife had been away from him, and this was held to constitute a bar in recrimination to his obtaining a divorce. Adultery was a bar in the Ecclesiastical Courts of England, and has been universally so held ever since, regardless of whether the action was for either an absolute or a partial divorce. That is what the Green case decided and nothing more. To the same effect is the statement in Nelson on Divorce and Separation, sec. 429; 2nd Bishop on Marriage, Divorce and Separation, sec. 350; Brown on Divorce, page 84; Stewart on Marriage and Divorce, sec. 314. The distinction between these statements of the general rule, nonapplicable here, and the statement of the limitations upon the rule, which must control the decisions in Maryland in this kind of a case, is too plain to require further comment.

This being the settled law in Maryland, it would not be within the sphere of discretion of a court in this jurisdiction to fail to apply it to any state of facts which shows a case...