Sewell v. Sewell, 16

• Decision Date: 27 October 1958
• Docket Number: No. 16,16
• Citation: 218 Md. 63,145 A.2d 422
• Parties: Mary A. SEWELL v. James H. SEWELL.
• Court: Maryland Court of Appeals

Page 63

218 Md. 63

145 A.2d 422

Mary A. SEWELL v. James H. SEWELL.

No. 16.

Court of Appeals of Maryland.

Oct. 27, 1958.

C. Edward Nicholson, Bethesda, and Charles D. Sanger, Jr., Silver Spring, for appellant.

Donald K. Staley and Emma B. Waldrop, Silver Spring, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

This suit was begun on April 21, 1955, by the appellant wife's filing a bill of complaint seeking a divorce a vinculo from the defendant husband on the ground of desertion based upon his asserted refusal of normal marital relations, and seeking custody of their minor son, then about five years old, and alimony and suit money. The husband answered the bill on August 30, 1955, denying desertion. On December 7, 1955, he filed a cross-bill for a divorce a mensa, alleging that his wife had deserted him on April 22, 1954, later amended to 1955, and he sought custody of their son, Ronnie. The wife filed an answer denying desertion on her part. Subsequently, on July 10, 1957, by leave of court and with the consent of the wife's then counsel, the husband filed an amended cross-bill seeking a divorce a vinculo based upon the same alleged desertion by the wife on April 22, 1955, but which included as a part of the necessary eighteen months' period time which had elapsed since the filing of his original cross-bill. The Circuit Court dismissed the wife's bill, granted the husband a divorce a vinculo, and awarded custody of the child to the husband. The wife appeals, but does not seek a reversal of that part of the decree which denied her a divorce.

The principal questions presented in this court are: (1) whether the trial court had jurisdiction to award the husband a divorce a vinculo on the amended cross-bill where a part of the time necessary to support his claim therefor elapsed after the filing of the original cross-bill for a divorce a mensa; (2) whether the evidence was sufficient to show desertion by the wife; (3) if so, whether it was sufficiently corroborated; and (4) the custody of the child.

Most of the testimony in this case was taken before an examiner at various hearings extending over a period of months. Judge Reeves commented on this aspect of the case: 'While the Court had occasion to observe these parties at the time of one hearing on the question of support for the child, the Court did not have the opportunity of observing the witnesses and of attempting to judge of their sincerity and truthfulness in the statements which they made. The Court must, therefore, take the record as it is found * * *.' The trial judge reviewed the testimony of the various witnesses. He concluded that the wife's claim of desertion by the husband was not established; and since there is no attack on the part of the decree which dismissed her bill for divorce, we see no purpose which would be served by our reviewing the testimony on this branch of the case, except to refer to such parts of it as seem to have a bearing on the fitness of the father to have custody of the child.

We shall take up first the second and third questions above stated--the sufficiency of the evidence to show desertion by the wife, and the sufficiency of corroboration of the husband's testimony.

The marriage of the parties was the second for the wife and the third for the husband, and the previous matrimonial ventures of each had would up in divorce. The parties were married in Elkton in March, 1949, and their child was born on April 29, 1950. The husband is now about sixty-four years old and the wife is about fifteen years younger than he. Their marriage does not appear to have been a happy one for even a brief time. Some of the difficulties were financial. After the parties had lived in two or three places, a financial crisis led to their having to sell their home in Montgomery County, which, otherwise, was about to be sold on foreclosure. Mrs. Sewell had furnished at least a substantial part of the payments on account of the purchase price which had been made.

The testimony is far from clear as to what the parties contemplated as to future plans when they sold the house. Mrs. Sewell's original home had been in Texas, and at some time prior to the sale of the house the parties had considered moving there. Mrs. Sewell still wishes to do so, but has no definite plans for such a move. At some time probably early in 1955, Mr. Sewell had obtained an estimate of the cost of moving their furniture to Texas either on a direct move or under a transit storage arrangement. Just before the Sewells sold their house Mr. Sewell had been on a trip to Illinois to seek to borrow money from a relative to avoid foreclosure. On being informed en route of arrangements for the sale, he abandoned the trip and returned to Montgomery County. The sale was made on April 21, 1955, but the Sewells might have continued to occupy the house until at least May 15th and possibly May 30th.

On the day of the sale, April 21st, Mrs. Sewell filed her suit for divorce. The next day she had the furniture moved out of the home. She says that Mr. Sewell had told her she could call up the moving people from whom he had obtained the estimate above mentioned, but she called a different moving company. Mr. Sewell returned to the home after finishing his day's work and was angry to find the furniture already loaded on a truck. Some clothing and dishes and probably some cooking utensils were left in the house. Notwithstanding the almost complete lack of furniture, the parties and the boy spent the night at the house. The next day or the day after that Mrs. Sewell took her fifteen year old daughter by a former marriage and Ronnie to Texas, in order to put the girl in school there. This daughter had been living with her mother and stepfather. Mrs. Sewell did not inform Mr. Sewell of her plans nor, apparently, did she communicate with him at all during her trip. On her return she did call him and told him he could pick up Ronnie at their former home, if he wanted to. This was on or about May 15, 1955. Mr. Sewell did pick up the boy and saw his wife at that time and place.

During Mrs. Sewell's trip, Mr. Sewell bought a trailer and had it placed in a trailer park in Prince George's County. He has lived in it ever since. During a considerable period he has had the boy, Ronnie, living with him and he seems to have taken good care of the child. Even when the parties were living together, Mr. Sewell seems to have done a great deal in actually taking care of Ronnie. In 1955 Mr. Sewell placed him in a good nursery school in Virginia near his own place of employment. Custody of the child seems to have alternated between the husband and the wife during this litigation. Shortly prior to the decree the wife had custody of him; but when he was living with one parent, the other has been allowed rights of visitation.

The testimony of the parties is in direct conflict with regard to whether or not Mr. Sewell sought to have Mrs. Sewell come to live with him in the trailer. It is perfectly clear that Mrs. Sewell did not go there to live with him, but the only testimony that she was invited to do so and that she refused to do so Mr. Sewell's. The Chancellor accepted Mr. Sewell's contention that a mobile trailer, with two bedrooms, for occupancy by four people (Mr. and Mrs. Sewell, Ronnie and presumably Mrs. Sewell's daughter) was the best that he could do in his present financial circumstances, though the Chancellor conceded that this would not afford ideal living conditions. He concluded that 'when Mr. Sewell has provided a place for the family to live, even though not under ideal conditions, and his wife has declined to live with him, that she has deserted him.' He accordingly held that the husband was entitled to a divorce a vinculo.

The wife's trip to Texas two or three days after the enforced sale of the parties' home, made for the purpose of putting her daughter in a school there, would not, we think, of itself constitute desertion.

There is nothing to show when the husband first knew of the wife's suit for a divorce. It is fairly clear that he knew nothing as to whether or when the wife intended to return from Texas. He bought the trailer during her absence and says that he did so with the intention of using it as a home for the family. He says that his wife refused his invitation to live in it with him on three occasions--once at their old house on or about May 15, 1955, when she turned Ronnie over to him, and twice later when she visited him at the trailer.

The problem of corroboration of the cross-complainant's (husband's) testimony still remains. It is required in a suit for divorce (Code 1957, art. 35, Sec. 4). There are many cases in which this court has been called upon to deal with the question, and the rule is well settled that where the divorce is genuinely contested and there is no basis for inferring collusion, slight corroboration may be sufficient. Kelsey v. Kelsey, 186 Md. 324, 46 A.2d 627; Harp v. Harp, 198 Md. 485, 84 A.2d 895; Lent v. Lent, 202 Md. 240, 96 A.2d 14. There must, however, be some corroboration. Hodges v. Hodges, 213 Md. 322, 131 A.2d 703; Trout v. Trout, 214 Md. 531, 135 A.2d 893; Zink v. Zink, 215 Md. 197, 137 A.2d 139. Before the wife's failure to follow the husband to a new domicile selected by him can serve as the basis for a finding that she has deserted her husband, a request that she join him must be made in good faith, and the request must be corroborated. Schwartz v. Schwartz, 158 Md. 80, 91-92, 148 A. 259.

The fact that a wife has left her husband under the belief, manifested by her bringing suit for divorce a few days later which proved, however, to be mistaken, that she had a valid cause for divorce against him, has been held not to show desertion on her part. See Crumlick v. Crumlick, 164...