The issues presented by this case are: first, whether a spouse's complaint for a limited divorce alleging constructive desertion based on lack of marital relations may be maintained when both parties continue to live under the same roof, albeit not in the same bedroom and without cohabitation; and, second, whether, notwithstanding the parties' continued living under the same roof,
The appellant, Robert M. Ricketts, Jr. (sometimes, "the appellant" or "Mr. Ricketts"), and Mary C. Ricketts, the appellee (sometimes, "the appellee" or "Mrs. Ricketts"), were married on June 13, 1981 and that union produced three children: Robert III, now emancipated and, thus, not subject to this Court's jurisdiction, Kathryn, who was born in 1987 and is emancipated, and Lawrence, who was born in 1989. It is unclear from the record when the parties' relationship began to deteriorate, but at some point, according to Mr. Ricketts, Mrs. Ricketts "forced [him] out of the bedroom, thus terminating their marital relationship." Since that time, he alleges, the parties have not had marital relations, although they have continued to reside in the marital household with their children, albeit in separate bedrooms.
On July 16, 2002, Mr. Ricketts filed a complaint seeking a limited divorce and custody of their two minor children. He alleged, as grounds for the divorce, constructive desertion, offering in support, Mrs. Ricketts's alleged denial of marital relations. On October 16, 2002, Mrs. Ricketts filed a Motion to Dismiss,
The Circuit Court for Carroll County held a hearing on the Motion to Dismiss and the Response to the Motion to Dismiss. The court granted the appellee's Motion to Dismiss, without explanation.
A limited divorce,
Among the grounds for a limited divorce is desertion. Md.Code (1984, 2004 Repl.Vol.), § 7-102(a)(3) of the Family Law Article.
Boyd v. Boyd, 177 Md. 687, 688, 11 A.2d 461, 464 (1940) (citations omitted).
Id. at 290, 89 A.2d at 612-13. See Murphy v. Murphy, 248 Md. 455, 460, 237 A.2d 523, 525-526 (1968); Ballan v. Ballan, 251 Md. 737, 740-743, 248 A.2d 871, 872 (1969), both cited by Deckman v. Deckman, 15 Md.App. 553, 560, 292 A.2d 112, 115-116 (1972), for the proposition that it is constructive desertion when the misconduct of one spouse "makes it impossible for the other to continue to live with the erring spouse without loss of his or her health, or self respect or gives reasonable apprehension
To be sure, both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home. We have held, however, that constructive desertion may occur where both parties continue to live under the same roof. In Scheinin, we were emphatic and clear:
Id., at 290-91, 89 A.2d at 613. See Mower v. Mower, 209 Md. 413, 417, 121 A.2d 185, 186-187 (1956); Kelsey v. Kelsey, 186 Md. 324, 326, 46 A.2d 627, 628 (1946); Dotterweich v. Dotterweich, 174 Md. 697, 200 A. 523, 523-524 (1938); Fries v. Fries, 166 Md. 604, 607-608, 171 A. 703, 704 (1934); Klein v. Klein, 146 Md. 27, 33, 125 A. 728, 730 (1924); Roth v. Roth, 145 Md. 74, 125 A. 556 (1924); Fleegle v. Fleegle, 136 Md. 630, 633, 110 A. 889, 890 (1920). We have explained:
Fleegle, 136 Md. at 634, 110 A. at 890. See also Crumlick v. Crumlick, 164 Md. 381, 381, 165 A. 189, 189 (1933). Thus, "it is unquestionably the law in this State that permanent refusal of either the husband or the wife to have sexual intercourse with the other spouse, from no consideration of health or other good reason, constitutes matrimonial desertion although the parties continue to live in the same house." Mower v. Mower, 209 Md. 413, 417, 121 A.2d 185, 186-187 (1956) (citations omitted). The fact that the spouses sleep in separate bedrooms or that they have ceased engaging in sexual relations does not per se establish constructive desertion, however. Whitehurst v. Whitehurst, 257 Md. 685, 690, 264 A.2d 822, 825 (1970); Parsons v. Parsons, 255 Md. 602, 604, 258 A.2d 437, 438 (1969); Fortman v. Fortman, 250 Md. 355, 360, 243 A.2d 517, 520 (1968); Jones v. Jones, 186 Md. 312, 314, 46 A.2d 617, 618 (1946); Wysocki v. Wysocki, 185 Md. 38, 41, 42 A.2d 909, 910 (1945); Ruckle v. Ruckle, 141 Md. 207, 214, 118 A. 472, 474 (1922). Additionally, when a husband and wife continue to live together without marital relations and yet neither makes any effort towards reconciliation, it is presumed that both spouses prefer to live under such circumstances, and, therefore, neither has a cause for divorce on the grounds of constructive desertion. Davey v. Davey, 202 Md. 428, 432, 96 A.2d 606, 608 (1953).
In the instant case, it is alleged by the appellant that Mrs. Ricketts denied him marital relations and forced him from the marital bedroom. Under Md.Code (1984, 2004 Repl.Vol.), § 7-102(a)(3) of the Family Law Article and, pursuant to the aforementioned case law, if those allegations are established, the appellant is able to prove that they are true, Mr. Ricketts has cause for a limited divorce, notwithstanding that he and Mrs. Ricketts are still living under the same roof, those allegations,
To be sure, as we have seen, Mrs. Ricketts disputes Mr. Ricketts's entitlement to a limited divorce on the grounds of constructive desertion. It is her view and position that there is a "fatal flaw" in the appellant's allegations. That flaw is, she submits, the allegation that the parties are living under the same roof, not, therefore, separate and apart.
Thus, when reviewing the grant of such a motion, a court "must assume the truth of all well-pled facts in the complaint as well as the reasonable inferences that may be drawn from those relevant and material facts." Porterfield v. Mascari II, Inc., 374 Md. 402, 414, 823 A.2d 590, 597 (2003) (indicating that the we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party). See Benson v. State, 389 Md. 615, 626, 887 A.2d 525, 531 (2005); Bobo v. State, 346 Md. 706, 707-708, 697 A.2d 1371, 1372-1373 (1997); Allied Invest. Corp. v. Jasen, 354 Md. 547, 555, 731 A.2d 957, 961 (1999) (reviewing motions to dismiss, trial and appellate courts "assume the truth of all well-pleaded, relevant, and material facts in the complaint and any reasonable inferences that can be drawn therefrom."); Bennett Heating & Air Conditioning, Inc., 342 Md. 169, 674 A.2d 534 (1996) ("the facts to be [considered are] those that are well pleaded by the plaintiffs, including those facts that may fairly be inferred from the matters expressly alleged"); Board of Education v. Browning, 333 Md. 281, 286, 635 A.2d 373, 376 (1994) (in evaluating a motion to dismiss, the court "must accept as true all well-pleaded facts and allegations in the complaint"); A.J. Decoster Co. v. Westinghouse Electric Corp., 333 Md. 245, 249, 634 A.2d 1330, 1332 (1994) ("the truth of all well-pleaded relevant and material facts as well as all inferences that reasonably can be drawn therefrom" must be assumed). Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.
There is no contention by the appellee that the allegations made by the appellant, and the permissible inferences drawable therefrom, are not material or relevant or that they involve trivial matters. Nor is there any contention made that the allegations are not well-pled. Accordingly, viewing the well-pled allegations and the permissible inferences as true and in the light most favorable to the appellant, the appellant's complaint should not have been dismissed. The trial court erred in doing so.
The appellant does, however, have the burden of proving the facts he has alleged, Owings v. Owings, 148 Md. 124, 128 A. 748, 749 (1925); Lent v. Lent, 202 Md. 240, 244-245, 96 A.2d 14, 16 (1953), as well as of introducing evidence of his attempt to renew marital relations and of Mrs. Ricketts's intent to end the marriage, Moran v. Moran, 219 Md. 399, 149 A.2d 399 (1959), and must also properly corroborate his allegations. Md.Code (1984, 2004 Repl. Vol.), § 7-101(b) of the Family Law Article.
It is undisputed that the Circuit Court has jurisdiction to determine the custody and support of children and establish the visitation rights of the non-custodial parent. Md.Code (1984, 2004 Repl.Vol.) § 1-201 of the Family Law Article.
Id., at 267, 145 A. at 615.
Pertinent to the issue of parental custody over minor children, a provision addressing the subject was added to the Maryland Code in 1929. In addition to acknowledging and mandating that "[t]he father and mother are the joint natural guardians of their minor child" and charging them equally with its support, care, nurture, welfare and education, Acts of 1929, ch. 561
It is the fact that § 5-203(d)(1) uses the proviso, "if the parties live apart," when addressing a court's award of custody to a parent that is at the heart of the appellee's argument and, apparently, was the basis for the Circuit Court's decision to dismiss the appellant's complaint for custody. The appellee thus argues that this introductory proviso limits the court's power to award custody to one parent over the other to those situations in which the parents are living apart, i.e those in which they are actually separated and not living under the same roof. She maintains this position notwithstanding § 1-201 and its clear and simple, though general, statement of the court's jurisdiction in parent-to-parent custody matters.
The appellant sees the matter quite differently. He submits, on the contrary, that § 1-201 does more than simply describe the court's jurisdiction; it instead is a grant of power, imbuing the courts with the responsibility to determine custody, visitation, and support regardless of whether the parents are divorced or physically separated. He relies on this Court's cases, decided both before and after the passage of Acts of 1929, ch. 561, reviewing the Circuit Courts' decisions with respect to parental custody where the parents were still living under the same roof.
The appellant has the better of the argument.
As we have seen, it cannot be doubted that the fact that the parties are living under the same roof, have not physically separated, is not, alone, sufficient to justify the court in refusing to grant either party a divorce. On the contrary, as we have also seen, this Court has held, see Kelsey, 186 Md. at 326, 46 A.2d at 628:
If a divorce may be decreed when the parties are living under the same roof, it would make no sense, indeed, it would be illogical, to deny the court the right to determine the custody, and support of the children of that marriage and, to the extent required, establish visitation with respect to them.
To be sure, § 5-203(d)(1) unmistakably contains the requirement that "the parents live apart" as a condition of the court awarding custody to either parent. And, viewing the statute in this context, as a self contained unit, that condition is both clear and unambiguous. It is well settled that when that is the case, we give effect to the words of the statute as written,
Section 5-203(d)(1) may not be read in isolation, however. Adventist Health Care Inc. v. Maryland Health Care Comm'n, 392 Md. 103, 125 n. 13, 896 A.2d 320, 333 n. 13 (2006), citing Deville v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004); Navarro-Monzo v. Washington Adventist, 380 Md. 195, 204, 844 A.2d 406, 411 (2004). It must be read in light of, and in conjunction with, the court's jurisdiction in divorce and custody matters, § 1-201(a) and (b), the relationship between divorce and custody, as defined by this Court, see Barnard v. Godfrey, supra, 157 Md. at 267, 145 A. at 615-616, and the applicable grounds for divorce. § 7-102(a). Waddell v. Kirkpatrick, 331 Md. 52, 60, 626 A.2d 353, 357 (1993) ("the Legislature is presumed to be aware of the interpretation that this Court has placed upon its enactments"); see Pack Shack, Inc. v. Howard County, 371 Md. 243, 257, 808 A.2d 795, 803 (2002); Blevins v. Baltimore County, 352 Md. 620, 642, 724 A.2d 22, 33 (1999).
In Barnard, just months before the enactment of the predecessor legislation to § 5-203(a), requiring "living apart" as a condition for the award of custody to one parent over the other, we construed the then applicable statute as empowering the equity courts, whenever application for that relief was sought by one or both parents, to determine custody, support and visitation "without regard to the question of whether or not the parents of said child or children have been divorced or are living apart." 157 Md. at 267, 145 A. at 615 (emphasis added). We also acknowledged that section "as declaratory of the inherent power of courts of equity over minors, and [that] in the exercise thereof it should be exercised with the paramount purpose in view of securing the welfare and promoting the best interest of the children." Id. The Legislature did not disturb the courts' right to determine custody, support or visitation when a divorce was not decreed, even though, when it enacted Acts of 1929, ch. 561, it knew that it was the law that parties living under the same roof could be divorced. Klein v. Klein, 146 Md. 27, 33, 125 A. 728, 730 (1924); Roth v. Roth, 145 Md. 74, 125 A. 556 (1924).
When so viewed, rather than clear and unambiguous, the phrase is ambiguous. Collins v. State, 383 Md. 684, 689, 861 A.2d 727, 730 (2004); Gardner v. State, 344 Md. 642, 648, 689 A.2d 610, 613 (1997)("[s]tatutes that are clear when viewed separately may well be ambiguous where their application in a given situation, or when they operate together, is not clear."). See also Sullins v. Allstate Ins. Co., 340 Md. 503, 508, 667 A.2d 617, 619 (1995) (construing contract terms); Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 74, 517 A.2d 730, 732 (1986) (same). Given the purpose of the courts' power over minors, to promote their best interest, and the connection between custody decisions and divorce, the logic of the result the legislation will effect may be considered when trying to discern the Legislature's intent.
This approach is consistent with the Court's decision in Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609 (1952). There, Mrs. Scheinin filed a complaint for a divorce a mensa et thoro, now a limited divorce pursuant to § 7-102, on the grounds of desertion and cruelty of treatment and, in addition, alimony, for custody of the children of the marriage, support, and counsel fees. Id. at 285, 89 A.2d at 610. There was much dissatisfaction between
The chancellor granted Mrs. Scheinin a limited divorce on the ground of constructive desertion and awarded her alimony, custody of the children, and child support. Id. at 290-291, 89 A.2d at 612-613. We affirmed the decree granting Mrs. Scheinin a limited divorce, noting that "[i]t is beyond question that there may be a desertion although the husband and wife continue to live under the same roof." Without referring to Art. 75A, § 1, which then prescribed the "living apart" requirement, but defining desertion in the marital context in terms of "ceasing to live together as husband and wife," id. at 290-91, 89 A.2d at 613, the Court also affirmed the custody and support decision, thus sanctioning the determination of custody and support where the parents, rather than living apart, are living under the same roof.
Mower v. Mower, 209 Md. 413, 121 A.2d 185 (1956), though by no means identical, is nevertheless instructive.
Id. at 419-20, 121 A.2d at 188. The record does not reflect that the parties' living arrangements changed during the proceedings. Consequently, it must be presumed that this Court, in directing the trial court to consider the wife's bill for custody, did so notwithstanding that Mr. and Mrs. Mower were living under the same roof.
This result and this approach are consistent with the primacy of the interests of the child and the courts' paramount concern "to secure the welfare and promote the child's best interests." Stancill v. Stancill, 286 Md. 530, 534-5, 408 A.2d 1030, 1033 (1979), citing Glading v. Furman, 282 Md. 200, 383 A.2d 398 (1978); Burns v. Bines, 189 Md. 157, 162-163, 55 A.2d 487, 489 (1947); Barnard v. Godfrey, 157 Md. 264, 267, 145 A. 614, 615 (1929). See also Kemp v. Kemp, 287 Md. 165, 170, 411 A.2d 1028 (1980); Ross v. Hoffman, 280 Md. 172, 174-75, 372 A.2d 582 (1977); Krebs v. Krebs, 255 Md. 264, 266, 257 A.2d 428 (1969); Montgomery County Department of Social Services et al. v. Sanders, 38 Md.App. 406, 381 A.2d 1154 (1977); Md.Code (1957, 2004 Repl.Vol.), § 1-201 of the Family Law Article. The trial court, in short, whether, or not, it concludes that Mr. Ricketts is entitled to a divorce, has the jurisdiction and power to determine the custody, visitation, and support of the Ricketts' children.
"Divorces a mensa et thoro may be decreed for the following cases, to wit: First, cruelty of treatment; secondly, excessive vicious conduct; thirdly, abandonment and desertion; and the court may decree such divorces forever, or for a limited time; and in all cases where divorce a mensa et thoro is decreed, it may be revoked at any time thereafter by the court granting the same, upon joint application of the parties to be discharged from the operation of the decree; and the court may decree a divorce a mensa et thoro in cases where a divorce a vinculo matrimonii is prayed, it the causes proved to be sufficient to entitle the party to the same; and in all cases where a divorce is decreed, the court passing the same shall have full power to award the wife such property or estate as she had when married, or the value of the same, or of such part thereof as may have been sold or converted by the husband, having regard to the circumstances of the husband at the time of the divorce, or such part of any such property as the court may deem reasonable; and shall also have power in all cases in which the care and custody of the children of parties forms part of the relief prayed whether a divorce a divorce is decreed or denied to order and direct who shall have the guardianship and custody of the children pendente lite or permanently, and be charged with their support and relation to the children"
A divorce a mensa et thoro has been defined by Black's Law Dictionary 431 (5th ed.1979) as a "partial or qualified divorce, by which the parties are separated and forbidden to live or cohabit together, without affecting the marriage itself." The 8th Edition notes that "a mensa et thoro" is derived from the Latin, "from board and hearth," thus, such a divorce is the forerunner of the judicial separation, "A partial or qualified divorce by which the parties were separated and allowed or ordered to live apart, but remained technically married."
Its predecessor provision, repealed and recodified as a part of Code Revision, see Acts 1984, c. 296, § 1, eff. Oct. 1, 1984, was Maryland Code (1974, 1980 Repl.Vol., 1983 Cum. Supp.) § 3-602 of the Courts and Judicial Proceedings Article.
This provision was originally enacted in 1920. See Acts of 1920, ch. 573. At that time, Md.Code (1924) Art. 16, § 39 provided that "in all cases where a divorce is decreed, the court passing the same shall have full power to award to the wife such property or estate as she had when married, or the value of the same, or of such part thereof as may have been sold or converted by the husband, having regard to the circumstances of the husband at the time of the divorce, or such part of any such property as the court may deem reasonable; and shall also have power to order and direct who shall have the guardianship and custody of the children, and be charged with their support and maintenance, and may at any time thereafter annul, vary or modify such order in relation to the children." By Acts of 1920, ch. 574, that provision was amended to provide that the equity courts "shall also have power, in all cases in which the care and custody of the children of parties forms [sic] part of the relief prayed, whether a divorce is decreed or denied." Hood v. Hood, 138 Md. 355, 363, 113 A. 895, 898 (1921). In Hood, this quotation is cited as Md.Code (1924), Art. 16, § 38, as opposed to the correct section, § 39.
Md.Code (1924) Art. 72A, § 1, at which the provision was codified, was amended by Acts of 1951, ch. 678, by striking the word "equally" and charging the parents, "jointly and severally," not only with the care, nurture, welfare, and education of their minor child, but also with its "support." Thus, § 5-203(b), the successor to Art. 72A, § 1, now provides: