Taylor v. Taylor

• Decision Date: 31 March 1910
• Citation: 77 A. 133,112 Md. 666
• Parties: TAYLOR v. TAYLOR.
• Court: Maryland Court of Appeals

77 A. 133

112 Md. 666

TAYLOR v. TAYLOR.

Court of Appeals of Maryland

March 31, 1910

Appeal from Circuit Court, Cecil County; Philemon B. Hopper, Judge.

Suit by Leslie George Taylor against Helen J. Taylor. From a decree dismissing the bill, plaintiff appeals. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.

Bernard Carter, for appellant.

George A. Blake, for appellee.

PATTISON J.

This is an appeal from an order of the circuit court for Cecil county dismissing the plaintiff's (appellant's) bill asking for a divorce a vinculo matrimonii from the defendant upon the ground of abandonment of him by her. The bill filed in this case, August 28, 1908, alleges that the plaintiff Leslie George Taylor, on the 25th day of June, 1902, was married to the defendant, Helen G. Taylor, at Perryville, in Cecil county, Md.; that both, since their marriage, have resided continuously in said county, and that they lived together at Perryville from the time of their marriage until the 4th day of November, 1903, when upon said last-named day the defendant abandoned her husband, and that said abandonment continued uninterruptedly from that time to the time of the filing of the bill in this case, a period of more than three years; that the abandonment is deliberate and final, and the separation beyond any reasonable expectation of reconciliation. The plaintiff, in the bill, further alleges that he is advised that by reason of such long-continued abandonment of him by the defendant he is entitled to a divorce a vinculo matrimonii from her. The defendant answered the bill, admitting all of its allegations except the one of abandonment and the averment that the plaintiff is entitled to the divorce asked for. In support of the allegations of his bill, the plaintiff offered the testimony of himself, his mother, Lydia A. Taylor, and Mrs E. K. McLain, and filed with the examiner a certified copy of the record of a former case in this court between the same parties, reported in 108 Md. 129, 69 A. 632, together with certified copies of the opinion of this Court in that case and in its decree passed in accordance therewith, which are to be taken and read as evidence in this case. No other testimony was offered, and, upon the submission of the case to the lower court, Judge Hopper dismissed the bill, with costs to the defendant. It is from that order that this appeal is taken.

On July 13, 1904, Helen G. Taylor, the defendant in this case, filed in the circuit court for Cecil county a bill against her husband, the plaintiff in this case, asking for a decree requiring him to pay unto her permanent alimony upon the ground therein set forth. The defendant answered the bill, denying the important allegations contained therein, and a large amount of testimony was taken by both the plaintiff and defendant upon the issues joined. Upon the submission of the case to the circuit court for Cecil county, for its determination, a decree was passed by it, requiring the defendant, Leslie George Taylor, to pay unto his wife, as alimony, the sum of $180 per annum. This court, upon appeal from that decree, reversed the lower court, and passed a decree dismissing the bill of the plaintiff, with costs to the defendant. Taylor v. Taylor, supra. The only witness in this case not in the former case is Mrs. E. K. McLain, who testified that she was in the office of the plaintiff, Dr. Taylor, on November 4, 1903, the occasion on which his wife left her home, and saw her leave the house in the afternoon of that day, and heard Dr. Taylor say to her, "Helen, I don't want you to go." The testimony of the plaintiff and his mother was again taken, but they testified to no material facts that were not given by them in their testimony in the former case. Therefore, the testimony is practically the same in both cases, at least, this additional testimony added nothing to the evidence in the former case favorable to the defense in this case.

In the former case the plaintiff, Helen G. Taylor, contended that the acts and conduct of the defendant, Dr. Taylor, in his treatment of her, amounted to an abandonment of her by him. The court in that case, speaking through Judge Schmucker, said: "It is not averred in the bill that he himself left the marital domicile and refused to return to it. The abandonment is alleged to have been accomplished through deceit on his part, by inducing her to visit her parents and then refusing to permit her to return to his home." The court then, after reviewing the evidence in the case, said: "We do notthink the charge of abandonment, made by the plaintiff against the husband, is supported by the evidence." In that case the husband was charged by the wife with abandonment of her; in this case the wife is charged by the husband with abandonment of him, and the counter charges are each based upon practically the same state of facts. Upon these facts, the court has said in the former case, the charge against the husband was not sustained; and now, upon this appeal, we are called upon to pass on the charge of abandonment made by the husband against the wife, which is the only question presented by this appeal. In the case of Gill v. Gill, 93 Md. 654, 49 A. 557, after stating the definition of abandonment or desertion, as defined in the cases of Lynch v. Lynch, 33 Md. 328, Gregory v. Pierce, 4 Metc. (Mass.) 479, and Bennett v. Bennett, 43 Conn. 313, this court referring to what was said in those cases, speaking through Judge Pearce, said, that these judicial declarations as to what constitutes abandonment or desertion, in law, agree with the definition of the leading text-writer of this country upon this subject, Mr. Bishop, who says in his work on Marriage, Divorce, and Separation, vol. 1, §§ 1662, 1663: "Desertion, as a matrimonial offense, is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent, or the wrongful conduct, of the other. Its (inherent) affirmative elements are two--the cohabitation ended, and the offending party's intent to desert. The statute creates a third affirmative element--the lapse of a defined period of time. In all cases the criterion is the intent to abandon." 1 Bishop, § 1672; Stewart on Marriage and Divorce, §§ 254, 255; Alkire v. Alkire, 33 W.Va. 517, 11 S.E. 11.

It is disclosed by the evidence in this case that the wife after living with her husband from the date of their marriage June 25, 1902, to the 4th day of November, 1903, on the last-named day left her husband and home in Perryville, and went to the home of her father, in Cecil county, about 1 1/2 miles therefrom, and that she has not since returned to her husband and home, but during this interval of the time has continuously lived separately and apart from him. It is however, contended by her that, when she left to go to her father's, it was her intention to return in a few days thereafter; that, at the time, she was suffering from the result of an operation performed upon her foot, made necessary by an ingrowing nail, and that her visit there was for the purpose of resting her foot, which she could not do at her own home, on account of the household work that devolved upon her when there. She also claimed that her visit to her father's home was first suggested by her husband, but, before the time came for her to leave her home, some domestic controversy arose between her and her husband, in which his mother also became involved, resulting in Dr. Taylor withdrawing his consent to her leaving her home at that time, and, as she says, he told her, "The horse is ready, but remember, if you go out of this house to-day, you will never come back in it," and when asked by her what he meant by this remark, he said, "I mean just what I say, if you go out of this house to-day, you will never come back in it." This version of her...