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CLARA JACKSON v. OLIVER JACKSON
Court of Special Appeals of Maryland
December 22, 1971
The parties were married on March 21, 1961. The husband was a career Army officer with the rank of Captain. The couple had two daughters seven and ten years of age. The family lived at Georgia, from 1963 until July 1965 when the husband was assigned to Vietnam and the wife and children moved to the home of her mother in Baltimore, Maryland. In November 1965 while the husband was in Vietnam, his wife was in critical condition as a result of an automobile accident. He was departed for Baltimore and was reassigned to Fort Holabird near Baltimore as a "compassionate reassignment." While he was stationed at Fort Holabird, he stayed at his mother-in-law's home every weekend. During this period when both parties were staying part time at the wife's mother's home, the appellee slept in the basement and his wife slept upstairs. This arrangement was a matter of choice with the husband. The husband refused to have intercourse with the wife for over five years. He filed a divorce action, claimed that he had grounds for divorce on the claim that he was separated from his wife for five years under Md. Ann. Code art. 16, 24. The trial court granted the divorce and awarded the wife child custody, child support, and alimony. Appellant former wife sought review of a decision of the Circuit Court of Baltimore City Maryland.
Whether the evidence was legally sufficient to justify a divorce on the grounds that the parties "lived separate and apart" for five years prior to the institution of the suit?
The interpretation of the legislative intent in the use of the phrase "lived separate and apart" in the seventh ground is a matter of first impression in this State so far as this Court is aware. The fifth ground for divorce under Art. 16 24 provides in substance that the parties shall be entitled to a divorce when the husband and wife shall have voluntarily lived separate and apart for eighteen months. The Court of Appeals interpreted the legislative intent in the use of this phrase in the fifth ground in Lillis v. Lillis, 235 Md. 490, 494-496, (1964). In that case the Court held the phrase was intended to include only those situations where the husband and wife had not lived under thesame roof for the prescribed period of eighteen months and that mere cessation of sexual relations between the parties was not sufficient to constitute living "separate and apart." In view of the overwhelming weight of authority, we are constrained to hold that since the parties to the instant suit intermittently lived in the same house during the eighteen months prior to the institution of suit, they were not living 'separate and apart, without cohabitation', within the meaning of Art. 16, sec. 24. The Legislature enacted the seventh ground in 1969 subsequent to the Court's interpretation of the phrase "separate and apart" in 1964.
We hold as a matter of law that the phrase "lived separate and apart" included in the seventh ground of Art. 16 24 requires that the parties live in completely separate places of abode during an entire five-year period prior to the institution of the suit. The provisions of the seventh ground further expressly require as additional elements that there be no cohabitation between the parties during the five-year period and that both the separation and the absence of cohabitation continue without interruption for the five-year period. We therefore hold that the Chancellor was in error in ruling that the appellee could establish his right to a divorce on the seventh ground by merely showing there had been no sexual relations between him and his wife during the critical five-year period, notwithstanding the fact that the appellee admitted he had lived in the same house with his wife on numerous occasions during that time. That part of the decree which granted the husband a divorce a vinculo on the seventh ground of Art. 16 24 will therefore be reversed.
The Court finds that the allegations and proof here were insufficient to entitle the appellant to a divorce under the seventh ground set forth in Art. 16 24, that part of the decree which awarded her alimony must also be reversed. However, this court point out that this ruling does not prohibit the appellant from instituting a separate action against the appellee in the future for her support on other grounds sufficient to entitle her to a divorce. If such grounds are properly alleged in the pleadings and established by the proof, they would entitle her to alimony whether or not a divorce was sought or granted.
This Court therefore held that in awarding the custody of the infant children of the parties to the mother and providing for their support by the father, the court was acting within its jurisdiction notwithstanding the fact that this Court has now invalidated that part of the decree which granted a divorce. It is well settled that reasonable counsel fees are allowable to the wife as a privileged suitor in a divorce suit so as to permit her to be adequately represented, irrespective of the merits of her case.
The court reversed the decision for the husband and ruled for the wife in the divorce action.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
Maryland Baltimore Divorce Grounds Child Custody Lawyers Lived Separate Attorneys
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