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Canoles v. Canoles

Decided: July 16, 1964.

CANOLES
v.
CANOLES



Appeal from the Circuit Court for Carroll County (BOYLAN, C.J.).

The cause was argued before Brune, C.J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.

PER CURIAM.

From a decree of the Circuit Court for Carroll County granting Helen M. Canoles a divorce a mensa et thoro from her husband, Ernest L. Canoles, for cruelty and desertion, and awarding the wife custody of, and support for, their two minor children, and alimony, the husband appeals.

The only question presented to us is whether the evidence was sufficient to warrant the limited divorce. While the husband argues that the acts of violence alleged by the wife were not sufficient to constitute cruelty of treatment, citing Peed v. Peed, 232 Md. 220, we need not reach that question since there was ample evidence from which the Chancellor could find that she was entitled to a divorce a mensa on the basis of desertion. The testimony of the parties, sufficiently corroborated, showed that the husband left the connubial bed in February, 1960, after an altercation, and has not returned to it. After three years of discord he packed his clothing and left the marital residence on January 2, 1963, six days prior to the filing of the instant suit by the wife, and moved into the home of his parents, stating that he intended to sue for divorce. He does not rely on any particular conduct of the wife to justify his leaving. He has intimated that he left with his wife's consent and agreement, but we do not believe this was established by the evidence. Cf. Buchholtz v. Buchholtz, 232 Md. 374. While the husband returned to the marital residence, which was jointly owned, some weeks after the filing of the suit, the evidence was clear and convincing that sexual relations were never resumed. Cf. Sullivan v. Sullivan, 234 Md. 67, 74.

We think there was sufficient evidence to prove the two elements necessary to support a decree of divorce a mensa on the ground of abandonment and desertion, namely, cohabitation ended, and intention to desert. Thurlow v. Thurlow, 212 Md.

222, 228. Therefore, the Chancellor's finding on this score was not erroneous.

Decree affirmed; appellant to pay the costs.

Disposition

Decree affirmed; appellant to pay the costs.

19640716

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