Appeal from the Circuit Court for Baltimore County; Raine, J.
Henderson, Hammond, Prescott, Marbury and Sybert, JJ. Prescott, J., delivered the opinion of the Court.
The appellant and appellee were married in Baltimore County on November 27, 1952, and lived together until November of 1959, at which time the wife left the marital domicile. Subsequent developments, related below, produced a divorce a vinculo for the husband on the ground of adultery by the wife and an award of custody of a five year old son to the husband, with reasonable rights of visitation given to the wife. The wife did not challenge, by appeal, the correctness of the chancellor's ruling concerning the divorce, but claims in this appeal that she should have been awarded custody of the child.
At the time of the marriage of the parties, the appellant was employed at the Glenn L. Martin Company, and she continued
this employment until after the birth of her child on July 10, 1956. She severed her connection with Martin in February, 1957. The marital relationship between the husband and wife seems to have been satisfactory up to this point and for two years thereafter (there were several incidents, mentioned below, during this period of which both the husband and wife complained after she had left the home).
Somewhere around February of 1959, the wife went to work with the Western Electric Company, serving on the third shift from 11:30 p.m. until 8:00 a.m. With her husband's knowledge and consent, she rode to and from work with a certain Francis Jones, a married man, in his automobile. When his wife began to "leave early for work [and] started to buy smarter clothing," the appellee husband became suspicious. He stated that he followed Jones and his wife while they were on their way to work and saw them hug, kiss and "neck" enroute to Western Electric and on the parking lot thereof. The wife, apparently, was quite displeased by this conduct of the husband, for she left their abode in November, 1959, just two months after they had purchased a new, modern home, taking with her the child. She later told the probation officer she had two reasons for leaving: (1) primarily, her husband's jealousy and (2) his "unreasonable demands for sexual gratification."
In February of 1960, the husband filed suit for an absolute divorce alleging the wife had committed adultery with Jones. She answered, denying the adultery; and countered with a cross-bill for a divorce a mensa, alleging cruelty of treatment and constructive desertion.
At the divorce trial, the wife named four incidents which she considered of serious moment. One had occurred back in 1952, when she was late one night in coming home. She had done nothing wrong, but her husband stated to his sister-in-law something to the effect that he was going to get his gun and kill "whoever she's with." The sister-in-law told him to "simmer down" and go back to bed, which he did. The second occasion was in October, 1959, when she claimed he had come home with too much to drink, and wanted to have sexual relations. She testified he slapped her at this time. He denied the
slapping. The chancellor made no specific finding as to whether or not the slapping occurred, but noted that it was not of sufficient importance for the wife to notify her mother, who was in the house at the time.
The third incident also occurred in October. She claimed that when she refused to have sexual relations with him due to the fact that she was menstruating, he tried to choke her. He denied making any attempt to choke her. The chancellor noted that the husband cooled down "very shortly" and there was no necessity for any medical treatment to the wife, as is frequently the case in matters of this kind when they are of a serious nature. The last incident was when she refused to have sexual relations with the appellee because she had returned home from a D & C operation only a few days before. He got mad and ripped the top of her pajamas.
The chancellor found that the husband was a "hot-tempered," "extremely jealous" man, whose suspicious nature was one of the principal reasons the parties had "not been getting along as well as could [have been] expected"; and that his conduct in requesting sexual relations at improper times was "reprehensible." But, after "adding [the evidence] all up," he could not find that the husband's conduct amounted to cruelty of treatment, or ...