Appeals from the Circuit Court for Baltimore City; Byrnes, J.
Henderson, Hammond, Prescott, Horney and Sybert, JJ. Hammond, J., delivered the opinion of the Court.
This Court in Wood v. Wood, 227 Md. 211, 216, recently repeated what prior cases had said from time to time in regard to a separation of spouses -- "acquiescence to or assent to what one cannot prevent does not amount to a voluntary agreement thereto." See, for example, Rhoderick v. Rhoderick, 224 Md. 478, 481; Moran v. Moran, 219 Md. 399, 404; Courtney v. Courtney, 213 Md. 600, 602; Miller v. Miller, 178 Md. 12, 21. On the other hand where the husband demanded in anger that the wife leave and she did not refuse, but agreed and did leave, it was held in Matysek v. Matysek, 212 Md. 44, that the language and conduct of the couple were enough to support the chancellor's explicit finding that the separation was voluntary.
The principal problem in the appeal before us is to determine on which side of the line the case falls, for, although the chancellor found that neither party was guilty of desertion and that the separation was not voluntary, it is clear to us that either the wife deserted the husband or their separation was voluntary despite the wife's claim that she was deserted.
The record reveals a marriage of almost twenty-five years' duration. The husband and wife impressed the chancellor as being "very fine people of excellent character." The husband was somewhat unstable, having been hospitalized during periods of depression in 1954 and 1959. He was employed by the same company during almost all of the period of the marriage but apparently was not a good manager, spending more on alcoholic beverages, long vacations, and a summer home on the Eastern Shore than he should have. During his hospitalization in 1954, the wife worked as a saleswoman and managed to pay off back bills, keep up-to-date the payments on their house, and put their finances on a sound basis. From 1954 until the break in 1959, the husband's paychecks were sent at his direction to his wife, who handled the family finances.
In 1959 he was admitted to the University Hospital for psychiatric care. The wife says, and he denies, that his condition was brought on by excessive addiction to alcohol. His wife visited him daily in the hospital until the last four or five days. About this time, before his discharge, he went home to get some money to purchase a few personal articles. His wife did not want him to have the money, and there was an argument, during which he said he would take over handling the finances and receive his paychecks himself. It seems evident that from this moment on, the wife was determined not to continue the marriage unless the husband again permitted her to be the financial "boss" of the family. She did not thereafter visit her husband at the hospital. On the day of his discharge, August 24, 1959, he says he telephoned his wife to come for him, waited four hours for her, and then was visited by two of their sons, who brought him $25.00 and told him, "Mother doesn't want you to come home -- go somewhere else." The sons say that when they arrived, their father was in a telephone booth and they heard him say, "I am not wanted at home," and that they gave him $25.00 but no message. There can be little, if any doubt, that he was told by his wife, in one way or another, that he was not to come home and that the money was sent to provide a lodging for him elsewhere. The boys took him to a hotel where he spent the night. He telephoned
his wife, who accused him of leaving the hospital against orders and then hung up on him.
The next day he called upon a priest whom his wife had consulted, and as a result of his conversation with the priest decided not to try to return home. He went to the Eastern Shore and lived for several months in a small cottage he rented for $40.00 a month. (He says, to recuperate; she says, to loaf as he like -- and as he was accustomed to do from time to time.)
On September 17, 1959, he wrote his wife that he had not left her or their home but was merely acceding to her wish that he not come home. On October 2, 1959, he wrote again, expressing the hope that their twenty-fifth wedding anniversary, on November 15, would not pass with things as they were. The wife did not answer the letters -- she says she did not know her husband's address, but gave them to the priest. About a week after the writing of the second letter, the husband talked with the priest, who then had the two letters, and he was advised not to further attempt reconciliation because his wife did not want it.
Twice the husband was asked in his wife's presence why he did not go home. Each time he replied that it was because his wife did not want him, and each time she made no comment or answer. He testified that his wife would not accept him as a husband and said, "I didn't need a room, I wanted a wife."
The wife testified that her faithfulness over the years, her working to pay the bills, and her tolerance of her husband's deficiencies and traits showed she wanted him back if he "behaved himself." Her testimony reveals, perhaps not unnaturally, almost an obsession with finances. She said: "As soon as he has money he has to do exactly as he pleases with it, and everyone suffers. Five years ago when he went to Seton's, and right now, the foolish expenditures. * * * And with him going back and forth to the Eastern ...