
    HELEN M. SHEEHAN v. THOMAS B. SHEEHAN.
    [No. 1,
    January Term, 1929.]
    
      Decided March 19th, 1929.
    
    The cause was argued before Bond, C. J., Urner, Adkins, Obbutt, Digges, Parke, and Sloan, JJ.
    
      Henry H. Dinneen, submitting on brief, for the appellant.
    
      J. Richard Siandiford, for the appellee.
   Digges, J.,

delivered the opinion of the Court.

The bill of complaint in this case was filed in the Circuit Court of Baltimore -City by the wife, appellant here, praying a divorce a mensa et thoro, permanent alimony, and counsel fees. The answer denied all of the material allegations of the bill. .Testimony was taken in open court. Subsequently the chancellor passed a decree dismissing the bill. The appeal is from that decree.

The parties were married on May 27th, 1907, in St. Louis, Missouri. At the time of the hearing the appellant was residing in New York City and the appellee in Baltimore; his employment being that of floor manager for a department store at a salary of thirty-four dollars a week. According to the wife’s testimony they were living together in New York City in February, 1920, at which time the appellee obtained a position with a “silk firm” at Utica, New York, as assistant buyer, and in the course of his employment was to make periodical trips to New York City, where she remained; that he was in Utica for two or three months, and then, without returning to see her, went to Baltimore, where he has since resided; that more than three years elapsed after he left for Utica before she again saw him, which was in January, 1925 ; that he came to New York on that occasion to obtain an insurance policy on his life, with her as beneficiary, in the amount'of $48,000, she to use the policy as security for a loan of $10,000 to be made by one of her friends. That with the money so obtained her husband was to go in the jobbing business, he to do the buying and selling, while she would attend to the finances. That the loan was never consummated, because he did not come for the money. That the insurance is still in force, she having kept the premiums paid up. That except for one period of two months there has been correspondence between them, and, up to the time she put her case in the hands of counsel, “He has been writing to me once a week and sometimes twice a week.” That he never asked her to come to Baltimore; “I told him I was coming and he said to try it.” That during the time they have been living apart she had received from him about $25, while she had sent him, of her earnings, between $200 and $225. “Q. Will yon tell the court why Mr. Sheehan left you, if you know ? A. I don’t know. He tells mo he has not left me.” “Q. Has Mr. Sheehan at any time ever told you why he left? A. No, he has never told me; since he left, but at least twice before he left he said to me, ‘Now, my health is not the best and I warn you you better learn some way to support yourself.’ Well, I had never heard of anything like that before, 'and I did not pay ‘any attention to it, so that when he went away I did not think he meant it, and his letters did not confirm that he meant it.” When asked what her husband would say in his letters to her, she answered, “One time he says, ‘For 'God’s sake don’t stop' writing to me for you are the only one I get letters from.’ Then I wrote and told him that people had received the impression that he had deserted me, and he wrote back and he said, ‘Contradict any such report that I have deserted you.’ He said, ‘There is nothing to it.’ And I had not seen him for a couple of years at the time.” On January 7th, 1926, the appellant wrote the following letter to the appellee:

“Dear Ben:
“In reply to yours would say I received one pair of 6% kid gloves between Xmas and New Tears. As I wore 6% when I married you and considering what 1 have passed thru since you can see that I cannot use the article you sent to me as a gift, but I thank you just the same. I have a friend here, to whom I am obligated,' who wears that size and I can give them to her unless you wish them back. In order to protect myself from ‘Foreign Entanglements’ I am planning-on asking for a divorce from you in Feb. or late Jan. Under such conditions gifts and cards between us are ridiculous.”

The record further disclosesi that there are no children born to the marriage; that she had not asked her husband to provide a home for her in Baltimore or that he return to New York, except the one occasion heretofore referred to; that the wife, has been earning as much or more than the wages of the husband.

The husband’s testimony is that, from the date of the marriage, he had held numerous positions in widely scattered cities, for varying periods, the one of the greatest length being with the J. M. Adams Company, of Buffalo, New York, where he was employed for nine or ten years; that for some time before and after coming to Baltimore his wife had been endeavoring to prevent bim from keeping employment, by sending to bis employers anonymous letters assailing bis character; tbat some snob letters were enclosed in letters from bis wife to bim, purporting to bave been received by ber from Baltimore; tbat be made complaint to tbe Baltimore postmaster, and notified bis wife of having done so, after which the anonymous letters ceased coming. This is denied by tbe wife. lie testified further tbat be bad not asked bis wife to come to Baltimore and make a home with bim; tbat be bad “given Mrs. Sheehan more than she wanted. She advised me she wanted nothing from me and if I took ber word for it I would bave kept to tbat. As far as me supporting Mrs. Sheehan, it was just like me upholding an enemy because Mrs. Sheehan in the last three or four years has deprived me of any method of living”; and that be bad sent ber small sums of money from time to time. Again, when questioned as to whether bis wife had suggested tbat she come to live with bim in Baltimore, be said, “No, Mrs. Sheehan has declared herself to tbe contrary, tbat she would not live with me under any circumstances. She advised me she did not want any mail or correspondence with me. She also told me in ber mail she did not want any money and did not want any of my funds, but it seems she contradicted that by requesting small amounts both when I went to New York and from here.” Tbe only other witness was a friend of tbe appellant with whom she lived, who said tbe appellee bad not been to New York for two years previous to the trial, but knew nothing of tbe domestic troubles.

"We bave detailed tbe testimony at some length because it presents an unusual situation. Tbe decree is sought on the single ground of abandonment, and tbe question is, Hoes tbe evidence entitle the appellant to a divorce a mensa, et thoro, as prayed?

Abandonment or desertion, as a marital offense, consists of tbe voluntary separation of one of tbe parties from the other, or the refusal to renow suspended cohabitation without justification either in tbe consent or tbe wrongful conduct of the other. It must be the deliberate act of the party complained of, with the intent that the marriage relation no longer exist. T.o- justify a divorce for abandonment, the intention of the one party to abandon the other need not have been formed at the time the actual separation occurred. If, after the separation took place, one of the parties entertains the purpose to desert the other, and the separation and intention continue for the period fixed by the statute, it constitutes abandonment as a matter of law and authorizes a divorce on that ground. Taylor v. Taylor, 112 Md. 666; Muller v. Muller, 125 Md. 72; Hubbard v. Hubbard, 127 Md. 617; Etheridge v. Etheridge, 120 Md. 11; Heinmuller v. Heinmuller, 133 Md. 494; Fleegle v. Fleegle, 136 Md. 630; Klein v. Klein, 146 Md. 27. In the last mentioned case this court said: “It must be the deliberate act of the party complained of, done with the intent that the marriage relation shall no longer exist. Young v. Young, 136 Md. 84; Fleegle v. Fleegle, 136 Md. 630; Ruckle v. Ruckle, 141 Md. 213; Separation and intention to abandon must concur, and desertion does not exist without the presence of both. The two need not begin at the same time, but desertion begins whenever to either one the other is added. Taylor v. Taylor, supra; Muller v. Muller, 125 Md. 76; Meginniss v. Meginniss, 144 Md. 39. A divorce for abandonment and desertion may be granted without regard to duration. Brown v. Brown, 2 Md. Ch. 316; Harding v. Harding, 22 Md. 337; Young v. Young, supra

Applying the settled law to the facts in this case, the chancellor reached the conclusion that the evidence did not measure up to legal abandonment; and we are in accord with that conclusion. There is nothing in the record from which it can be said that the failure of the spouses to live together was with any intent on the part of the husband that the marital relation should no longer exist. On the contrary, it clearly shows that, when the husband left in 192'l, it was with the-knowledge, acquiescence, and consent of the wife; that since then the parties have maintained regular and continuous, correspondence with each other, which is conclusive that in a. legal sense the husband had no intention of deserting his wife. It is not shown that the wife ever made a request that the husband provide a home for her in Baltimore, or that she demanded that he return to her in New York. In addition, the evidence is that since the husband has resided in Baltimore he returned to New York and insured his life, for the benefit of the wife, to the extent of $48,000. Again, the letter of the wife, dated January Ith, 1926, above quoted, acknowledges having received a Christmas present from the husband, and tells him that, in view of the fact that she is planning for a divorce from him in January or February of that year, she should not be receiving cards and gifts from him.

The testimony of the wife is not corroborated except to the extent that the husband had not been at her friend’s house, where she boarded, within two years prior to the institution of the suit. This is the testimony of her friend, and is not contradicted by the husband. There is no corroboration whatever of the remaining testimony of the complainant, which is a requirement of the statute in respect to proceedings instituted for obtaining a divorce. Code, art. 35, sec. 4. But, without regard to the question of corroboration, and giving the complainant’s testimony full weight, in our opinion it does not present a situation entitling her to the relief prayed. In order to procure a divorce under the allegations of the bill filed in this ease, it was incumbent upon the complainant to prove that the defendant deliberately left her with intent to bring the marriage relation to an end, and that there is no reasonable hope of reconciliation. Tomkey v. Tomkey, 130 Md. 293. We are convinced that the complainant here consented to the defendant leaving her, and there is no sufficient evidence to indicate that the living apart has not continued to be with her consent. Heither is there evidence that the defendant ever intended to bring the marriage relation to an end. We find no error in (he decree of the chancellor.

Decree affirmed, with costs to the appellee.  