Benson v. Benson

Bruñe, C. J.,

delivered the following dissenting opinion, in which Collins, J., concurred.

*608 Our difference with the majority opinion is based upon the construction heretofore placed by this Court on the statute authorizing divorces on the ground of voluntary separation and the application of that construction to the evidence in this case, as we see it.

Voluntary separation was first made a ground of divorce in 1937, and the first case to come before this. Court dealing with it was Campbell v. Campbell, 174 Md. 229 , 198 A. 414 , decided in 1938. That case involved a separation which had originally been caused by the fault of one party and which later become voluntary on both sides. The next case to deal with the subject,, and the first to undertake to define the kind of intention, required to satisfy the statutory requirement, was France v. Safe Deposit & Trust Co., 176 Md. 306 , 4 A. 2d 717 (1939), in which, after referring to the statute and the Campbell case, the Court said:

■ “As used in the Act and construed in that opinion, a voluntary separation is á physical separation of the parties, by common consent with a common intent not to resume marital relations. It does not mean a mere physical separation where one of the spouses for business or pleasure leaves the other, intending to return, and with no intention of affecting their marital relationship * * *.”

The opinion next pointed out that the separation might be voluntary, at the very inception of the physical separation and might remain so throughout the entire statutory' period [then five years, now three], and then went on to say:

“Or it may begin at any time after the physical separation, when the parties manifest an agreement in a common intent of not living together again, but in that case it must continue without interruption for five years from the time .of the agreement, before either spouse is entitled to a divorce under the statute.”

*609 The first of the above quotations from the France ease was repeated substantially verbatim in Foote v. Foote, 190 Md. 171 , 57 A. 2d 804 ; and the second was quoted with approval in Hahn v. Hahn, 192 Md. 561 , 64 A. 2d 739 .

In the present case the wife testified that at the time of the separation the parties said, “We will try it this way.” That .hardly measures up to “a common intent not to resume marital relations” or “a common intent of not living together again.” The majority adopts the view that the finality of the parties’ “common detérmination not to live together under the circumstances then existing” (emphasis added) is enough to satisfy the requirement of the statute; and by so holding departs, we think, from the test as to intention which is stated in the France case and quoted in the Foote and Hahn cases.

Although the five-year or three-year waiting period unquestionably contemplates an opportunity for reconsideration and necessarily makes any voluntary separation experimental to some extent, that fact was as evident when the France case was decided as it is today, and must have been in the mind of the Court when the requirement as to the intent to break marital relations permanently was stated in that case. It may also be conceded that on its facts, the result of the France case could have been reached without construing the statute as requiring so drastic an intent not to resume marital relations as was there said to be required, and it may further be conceded that the statute could properly have been construed as requiring a less drastic or permanent intent never to resume marital relations in the future; yet the question as to what kind of a voluntary separation would meet the requirements of the then new statutory provision seems to us to have been essential to the determination of the case. Consequently, we find ourselves unable to reach the view that the definition contained in the France case and re *610 peated (perhaps unnecessarily) in the Foote and Hahn cases and heretofore not questioned by this Court, was simply obiter dictum and hence is not a construction of the statute entitled to our regard.

Since Alexander v. Worthington, 5 Md. 471 , the rule which has been recognized in this State, regardless of which way any particular case may have been decided upon application of the rule, is that: .“All that is. necessary in Maryland to render the decision of the Court of Appeals authoritative on any point decided, is to show that there was an application of the judicial mind to the precise question adjudged * * See also United Railways and Electric Company of Baltimore v. Mayor and City Council of Baltimore, 121 Md. 552 , 88 A. 617 ; McGraw v. Merryman, 133 Md. 247 , 104 A. 540 , and cases therein cited and Baltimore City v. Allegany County, 99 Md. 1 , 57 A. 632 .

The case last cited brings out another point which seems pertinent and to reinforce our view. This is that when the Legislature re-enacts a law in the same words which have already been construed, “it is presumed they had in mind, and intended it to bear, the interpretation given to it by this Court * * What is now Section 33 of Article 16 of the Code (1951) has been amended several times since the voluntary separation clause was added in 1937 and since the Campbell and France cases were decided, and one of these amendments (Ch. 240 of the Laws of 1947) amended the voluntary separation clause itself by shortening the period from five years to three. None of these amendments, however, changed any other term of the voluntary separation clause. What was said in Rabbitt v. Gaither, 67 Md. 94 , 8 A. 744 (with appropriate allowance for the number of years during which the pertinent statute has been in force) appears directly applicable:

“They [the courts] can construe a statute, but having once clearly and definitely done so, and that construction having been acquiesced *611 in and acted upon for more than forty years, it is for the Legislature to change the statute, rather than for the courts now to change its construction, even if they should deem it erroneous.”

Judge Markell, in delivering the opinion of the Court in Sonnenburg v. Monumental Tours, 198 Md. 227 (at 233), 81 A. 2d 617 , (at 620), succinctly stated:

“Decisions of this court construing the statute become a part of the statute and continue to be so unless and until changed by statute.”

See also McKee v. McKee, 17 Md. 352 , Herbert v. Gray, 38 Md. 529 , and Gibson v. State, 204 Md. 423 , 104 A. 2d 800 .

To summarize: The evidence shows, we think, that the separation which occurred on July 29, 1949, was voluntary on both sides and that it was understood by both parties to be much more than a casual separation, such as would result from a business or vacation trip by one of the parties, that it was expected to have the effect of suspending their marital relations and that it was realized that it might lead to a permanent separation. But the testimony that the parties saw no other solution “for now” and the wife’s own testimony that they said on the day of the physical separation that “we will try it this way” seems to us not to establish that the separation was intended as more than a temporary or trial solution of their marital difficulties, and seems to fall short of establishing the existence at that time of a common intent not to resume marital relations. It is our further view that the evidence does not establish such a mutual intent on any date prior to that of the attempted reconciliation in January, 1951, which was less than three years prior to the filing of the bill. Consequently, in our view, the test laid down in the France case in the construction of the statute is not met. Since, for the reasons stated above, we consider that construction binding, we are of the opinion that the decree dismissing the wife’s bill should be affirmed.