Appeal from the Circuit Court for Montgomery County; Shure, J.
Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ. Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.
The wife appeals from a decree granting the husband a divorce a mensa et thoro and awarding him custody of the four year old daughter of the parties. The divorce was granted on the ground of constructive desertion.
Frank J. Bryce and LaRue T. Bryce were married in Baltimore, on March 31, 1943. They are the parents of three children, Frank J. Bryce, Jr., Joan E. Bryce, and Barbara Ann Bryce, born respectively, in 1944, 1946 and 1957.
Until November 15, 1960, the family lived together at 9702 Hastings Drive, Silver Spring, Maryland. On that date the appellee husband, after having previously advised his two older children of his proposed move, and after leaving a letter to his wife and a check for maintenance, moved from the marital domicile and took up residence at 9152 Piney Branch Road, in Silver Spring.
The appellee, for a number of years, has practiced dentistry, and is secretary of the State Board of Dental Examiners of Maryland, maintaining his professional office in Silver Spring, near the former residence of the parties.
On November 21, 1960, he filed a bill of complaint for a divorce a mensa et thoro and for custody of the three minor children. The bill alleges as the basis for the relief sought that the appellant wife, for many years, has nagged the appellee, has humiliated and embarrassed him in the presence of others, has abused him with words of contempt and scorn, has physically assaulted him, and has demanded that he leave the marital home; and that the appellant, furthermore, in fits of anger against him, has also turned upon the children of the marriage, scolding and physically abusing them without justification and purpose; so that he finally, in desperation, hoping to make life more tolerable for himself and the children, and having been constructively deserted by her, did, on November 15, 1960, leave the family home in order to preserve his own health and self-respect and in the interest and welfare of his children; that, although residing in the same house until November 15, 1960, he and his wife have not cohabited since September 1960; that there is no hope or expectation of a reconciliation of the marriage; and that he is devoted to his children, well able to take care of them and believes that their interests and welfare would best be served in his care and custody.
The appellant filed an answer denying the essential allegations of the bill. Subsequently the appellee filed a motion under Rule 420 asking the court to require a mental examination of the appellant, and following a hearing on this motion, the court ordered that the wife be examined by two psychiatrists. It was agreed between counsel that she would be examined
by Dr. Peter A. Santucci and Dr. John R. Cavanagh, both psychiatrists with offices in Washington, D. C. These two psychiatrists made separate examinations, filed written reports and testified at a hearing in open court. As a result of answers to questions by the court, the court determined that she was able to attend court, consult with counsel, and defend herself in the suit.
At several hearings thereafter the court heard the testimony of the parties to the suit, their children, a Lutheran clergyman, a Catholic priest, the foster mother and father of the appellant, and others. In a memorandum opinion filed June 29, 1961, Judge Shure concluded that Dr. Bryce had been constructively deserted by his wife, and on July 14, 1961, passed a final decree granting him a divorce a mensa et thoro; and awarded to him the custody of the four year old child, Barbara Ann, with reasonable rights of visitation to the appellant with respect to this child. The decree awarded custody of the two older children to the appellant, with reasonable rights of visitation to the appellee with respect to them, and required the appellee to pay to the appellant for the support of the two older children $225.00 per month for each child, and to pay the appellant's counsel fee. The appellant has appealed from this decree. There was no cross appeal.
The record discloses a stormy marriage, the trouble commencing some time in 1950. The husband testified that the wife was a woman who must have her way, who has "thrown fits of temper" if she did not, and would "throw things at me" and "spit in my face." He further testified that in July 1960, in the middle of the night while he was asleep in bed, she twice threw a framed picture of her foster father at him, showering him with glass. During September and October, prior to his moving out of the house, she pushed him down the cellar steps spraining his wrist and causing it to be practically useless for two or three days; while he was on a ladder painting the house she shoved her fist through the window, showering him with broken glass, which caused him to ...