Opinion
[No. 62, October Term, 1939.]
Decided January 10th, 1940.
Divorce — Refusal of Intercourse — Justification — Cruelty — Effect of Condonation — Counsel Fee.
A refusal by the wife to have sexual intercourse with her husband for a period of three years entitles the husband to a divorce as for abandonment, but not if the cessation of intercourse is the result of the husband's cruelty or other serious misconduct.
And such refusal by the wife was justified when she had reason to suspect him of infidelity, and he had made an assault on her, so as to cause her to fear physical violence.
Legal cruelty on the part of the husband, entitling the wife to a divorce, is such conduct as will endanger the life, person or health of the wife, or will cause her reasonable apprehension of bodily suffering; it is such conduct as would render cohabitation physically unsafe to a degree justifying a refusal to continue it.
Code, art. 35, sec. 4, providing that no divorce shall be granted on the testimony of the plaintiff alone, without corroboration, is intended to prevent collusion, and only slight corroboration is necessary when the case precludes any possibility of collusion.
Offenses committed during the married life, although condoned, may be considered by the court in reaching a decision when they are revived by subsequent transgressions.
Condonation is a conditional and not an absolute forgiveness of marital offenses, there being an implied promise that the erring spouse will not repeat those offenses, or commit any offense which would render the continuance of the marital relation intolerable to the injured party.
An allowance of a counsel fee of $100 to the solicitor for the wife, for which amount the solicitor gave a release acknowledging full payment and satisfaction, need not be increased, in the absence of any showing of abuse of discretion in making the allowance. Decided January 10th, 1940.
Appeal from the Circuit Court for Baltimore County, In Equity (COBOURN, J.).
Bill by Beulah I. Timanus against John J. Timanus, asking a divorce a mensa et thoro, in which proceeding the latter filed a cross-bill, asking for a divorce a vinculo. From a decree dismissing the original bill and awarding a divorce a vinculo to the defendant, the plaintiff appeals. Reversed in part and affirmed in part.
The cause was argued before BOND, C.J., PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.
Sophie K. Nordenholz and Wendell D. Allen, for the appellant.
J. Howard Murray and John Grason Turnbull, for the appellee.
Unreported cases.