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Sullivan v. Sullivan

Decided: March 9, 1964.

SULLIVAN
v.
SULLIVAN



Appeal from the Circuit Court for Anne Arundel County; Duckett, J.

Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

The Chancellor granted a husband an absolute divorce on the ground of a voluntary separation of the parties for eighteen months; he denied the wife's request for a divorce a mensa et thoro (based upon an alleged desertion); he awarded custody of the parties' six minor children to the wife; and he ordered the husband to pay the wife sixty dollars per week for the children's support. The wife, alone, has appealed.

The questions posed by the parties are: (1) was there sufficient evidence to justify a decree divorcing the parties on the ground of their having voluntarily lived separate and apart for the statutory period; and (2) was there sufficient evidence to require a decree in favor of the wife for a divorce a mensa et thoro ?

The record reaches us in a rather unsatisfactory condition. The evidence is scanty and conflicting; and the Chancellor filed no opinion making any findings of fact. It would seem to have been most desirable for counsel, who intended to appeal, to have invoked Maryland Rule 18 (c), so that the parties and this Court would have had the benefit "of the grounds for [the Chancellor's] decision." Compare Levy v. Levy, 229 Md. 103, 181 A.2d 663. It is obvious, however, from his decree that the Chancellor found that the parties had "voluntarily lived separate and apart, without any cohabitation, for eighteen consecutive months prior to the filing of the bill of complaint, and such separation [was] beyond any reasonable expectation of a reconciliation," Code (1963 Cum. Supp.), Article 16, Section 24, and that his finding was not based upon the husband's testimony alone, but the same had been corroborated. Code (1957), Article 35, Section 4; Maryland Rule S75. The above findings necessarily included a finding that the husband, who, as we shall soon see, actually left the parties' place of abode, did not desert the wife. We proceed to an examination of the testimony to see if the findings were justified.

The parties were married in March of 1946 in Connecticut, but had lived in Maryland for eleven years before the institution of these proceedings. The husband is a traveling washing machine repairman. Six children, ranging now in age from six

to fourteen years, were born as a result of the marriage. During the summer of 1961, the children spent their vacation in Connecticut with the wife's family. The wife testified that her husband told her that he intended to leave the home, and would leave, before the children returned to begin school in the fall, and the husband did not deny that he had made the statement.

The children returned without his having left, but after supper on August 16, 1961, matters came to a head. The husband testified that he did not want to leave the home, but: "the final thing I blew my stack on was I come in and I couldn't get in the bathroom because of dirty clothes and the floors and the bath tub full. Just the house in a mess. The dishes were in a pile stacked up in the sink." And this had been going on, over his protestations, for a long period of time. He told his wife that he "had taken all [he] could take," and she said, "Well, then you leave, I think it is the best thing to do * * *. I will pack your clothes." (This statement attributed to the wife was flatly denied by her.) He then went out and found a place to live, and when he returned with two friends and a truck, she had most of his clothing packed. He and his friends placed his clothes and a few articles of personal property in the truck and he left. He left "because [he] couldn't stand it anymore." Since leaving, he claims that he has never had sexual relations with his wife. He admitted his wife had requested him to return, but couldn't "swear" whether it was around Christmas of 1961 or not. He did not think he had ever "spent the night" at his former home after leaving, but the "night of Christmas [presumably of 1961] was questionable."

Two days after he left, he came back and asked his wife to sign (at the insistence of his bank) a note with him, so that he could procure furniture for his new apartment, and this she did.

The only witness offered by the husband was one of the friends who helped him move. He stated that the husband told him he was going to leave and asked the witness to help him move. When he got to the house, the oldest girl, Jackie, was coming down from upstairs carrying a suitcase, and the wife was coming out of the bedroom with some clothes. When asked if the wife helped "to move the stuff out," he replied that she

was "bringing it" out to the living room and he and the husband carried "it" to the truck. The wife did not "appear" to be mad, but ...


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