Ricketts v. Ricketts

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Ricketts v. Ricketts, No. 136, September Term, 2003. Opinion by Bell, C.J. FAMILY LAW - LIMITED DIVORCE - CONSTRUCTIVE DESERTION - CUSTODY A 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 ro of, albeit not in the same b edroom and w ithout co habitatio n. Mo reover , in such a circum stance, a complaint for custody and visitation of the parties children may be maintained. IN THE COURT OF APPEALS OF MARYLAND No. 136 September Term, 2003 ______________________________________ ROBERT M. RICKETTS, JR. v. MARY C. RICKETTS ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C.J. ______________________________________ Filed: July 28, 2006 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, secon d, whethe r, notwithstan ding the parties continued living under the same roof,1 a complaint for custody and visitation of the parties children may be maintained. We shall hold that, under these circumstances, all of the relief sought by the complaint is available to a complainant and, therefore, the complaint in this case should not have been dismissed. I. The appellant, Robert M . Ricketts, Jr. (sometimes, the appellant or M r. 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, w ho was b orn in 1 By the phras e live und er the same roof, we mean tha t the parties are te chnically living together but are not cohabitating, sharing the same bedroom or engaging in marital relations. Cohabitation, we have explained, describes a relationship of living together as man and wife, and connotes the mutual assumption of the duties and obligations associa ted with marriag e. Gordon v. Gordon, 342 Md. 294, 308, 675 A.2d 540, 547 (1996 ). See Black's Law Dictionary 260 (6th ed.1990) (citations omitted) ( [t]o live together as husband and wife. The mutual assumption of those marital rights, duties and obligations w hich are usu ally manifested by married pe ople, includin g but not n ecessarily depen dent on sexual relation s. ). 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 M r. Ricketts, Mrs. Ricketts forced [him] out of the bed room, thus terminating their marital relation ship. Since that time, he alleges, the parties have not had marital relations, although they have continued to reside in the marital househo ld with their c hildren, albeit in separate bedroo ms. On July 16, 2002, Mr. R icketts filed a complaint seeking a limited divorce and custody of their two minor ch ildren. 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,2 arguing that because the parties continued to live under the same roof, had not separated and , therefore, were not living separate and apart, 3 Mr. Ricketts s complaint for divorce was fatally defective and, thus , must be 2 Maryland Rule 2-322 provides: (b) Permissive. The following defenses may be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the subject matter, (2) failure to state a claim upon which relief can be granted, (3) f ailure to join a p arty under Ru le 2-211, (4) discharge in bankruptcy, and (5) governmental immunity. If not so made, these defenses and objec tions may be m ade in the an swer, or in a ny other appro priate mann er after a nswe r is filed. 3 Although not entirely clear, it does not appear that Mrs. Ricketts is alleging that she and Mr. Ricketts, in addition to living under the same roof, have cohabited, i.e., lived together as husband and wife. Even had she done so, however, it would not affect the result in th is case. T hat is so b ecause this case must b e resolv ed on th e plead ings. Therefore, it simply is not required that we resolve the facts. Whether the parties cohabited , or not, is clearly a qu estion of fa ct. 2 dismiss ed. She made the same argument with regards to Mr. Ricketts s complaint for custody, stating that it too was fatally defective ... because the parties had not separated and were not living apart at the time of the filing of the Complaint. Responding to the appellee s motion, the appellant adm itted that the parties were still living togethe r in the same house, under the same roof,4 but stated that this did not affect the validity of his complaint or the ava ilabi lity of the relief soug ht, i.e . limited d ivorce an d custod y. 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. Mr. Ricketts timely noted an appeal of the judgment dismissing his complaint to the Court of Special Appeals. While the case was pendin g in that court and prior to any proceedings, this Court, on its own initiative, issued the writ of certiorari. Ricketts v. Ricketts, 380 Md. 23 0, 844 A.2d 42 7 (2004). II. A limited divorce,5 which may be decreed for a limited or an indefinite period, Md. 4 We do not construe the appellant s use of the term, together, to be an admission that he and Mrs. Ricketts were cohabiting, although that may appear to be the connotation. 5 Befo re enac tment o f the Fa mily Law Article, see Acts 198 4, ch. 296, § 2, eff. Oc t. 1, 1984 , a limited divorc e was d enom inated a divorc e a men sa et tho ro. See Md. Code (1957) Art. 16, § 25. That section provided: Divorc es a mens a et thoro m ay be decreed for the follo wing cas es, to wit: First, cru elty of treat men t; sec ondly, exc essiv e vic ious conduct; thir dly, abandonment and desertion; and the court may decree such divorces 3 Code (1984 , 2004 R epl. Vo l.), § 7-10 2 (c) is o ne from bed an d board . It grants unto the injured spouse the right to live sep arate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds. Courson v. Courson, 213 Md. 1 83, 188 , 129 A .2d 917 , 920 (1 957). See Thomas v. Thomas, 294 Md. 605, 609, 618, 451 A.2d 1215, 1217, 1222 (1982), noting, in addition, that [t]his Court has said that a divorce a m ensa et thoro is practically nothing more than judicial permission to live separate and apart, quoting Dough erty v. Dough erty, 187 Md. 21 , 31, 48 A.2d 451 (1946). forever, or for a limited time; and in all cases where divorce a mensa et thoro is decreed, it may be revok ed 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 th oro in cases where a d ivorce a vin culo matrim onii is prayed, it the causes p roved to b e sufficien t to entitle the par ty to the same; an d in all cases wh ere a divorc e is decreed , the court pa ssing the sam e 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 wer e separated and allow ed or orde red to live ap art, but remain ed technica lly married . 4 This is in contrast to a n absolute divorce,6 which effects a complete severance of the marital bond and entitles either of the parties, or bo th, to remarry. Crise v. Sm ith, 150 Md. 322, 326, 133 A. 110, 111 (1926) (divorce a vinculo matrimonii ends all rights of either spouse dependent on ma rriage). See also Black s Law Dictionary, Divorce, (8th Ed. 2004), equating an abso lute divo rce with a divor ce a vin culo m atrimon ii. Among the grounds for a limited divorce is desertion. M d. Code (1 984, 200 4 Repl. Vol.), § 7-102(a ) (3) of the F amily Law Article.7 Desertion may be con structive or ac tual. 6 Prior to ena ctment of the Family La w Article, th e term used to refer to an absolute divorce was a vinculo matrimonii. See Art. 16, § 24 (as pertinent, Upon a hearing of any bill for a divorce, the court may decree a divorce a vinculo matrimonii for the following causes .... ). A divorce a vinculo matrimonii has been defined as [a] total divorce of husband and wife , dissolving th e marriage tie and releas ing the parties wholly from th eir matri monia l obligat ions. B lack s L aw D ictionar y, Divorc e, (8th E d. 2004 ). See Crise v. Sm ith, 150 M d. 322, 326 , 133 A. 11 0, 111(19 26) (divorc e a vinculo matrimon ii ends all rights o f either spou se depen dent on m arriage); Millar v. Millar, 200 Md. 14 , 21, 87 A.2 d 838, 84 1 (1952) (n oting that the f ormer spo uses beca me tenan ts in commo n as result of Maryland la w opera ting on their c hanged s tatus); Reed v. Reed, 72 A. 414, 41 5 (1909); Tyson v. Tyson, 54 Md. 35, 37-3 8(1880). 7 Md. C ode (195 7, 2004 R epl. Vol.), § 7 -102(a) of the Family La w Article provides: (a) Grounds for limited divorce The court may decree a limited divorce on the following grounds: (1) cruelty of tre atment of the comp laining party or o f a minor c hild of th e com plain ing p arty; (2) excessively vicious conduct to the complaining party or to a m inor child of th e com plain ing p arty; (3) desertion; or (4) voluntary separation, if: (i) the parties are living separate and apart without cohabitation; and (ii) there is no reasonable expectation of reconc iliation. 5 See, e.g., Walker v. Walker, 209 Md. 428, 431, 121 A.2d 195, 198 (1956). We have defined actual desertion as the voluntary separation of one of the married parties from the other, or the refusal to renew suspende d cohabita tion, without justification either in the consent or the wrongfu l conduct of the other p arty... [Furthermore,] the separation and intention to abandon must concur, and desertion does not exist without the presenc e of both. T he two need not begin at the same time, but desertio n begin s whe never to either on e the oth er is add ed. Boyd v. Boyd, 177 M d. 687, 6 88, 11 A .2d 461 , 464 (1 940) (c itations o mitted). What is required to constitute constructive desertion was addressed in Scheinin v. Scheinin , 200 M d. 282, 89 A .2d 609 (1 952). In that c ase, we sa id It is accepted that any conduct of a husband that renders the marital relation intolerable and com pels the w ife to leav e him may ju stify a divorce on the ground of constru ctive desertio n, even tho ugh the co nduct m ay not justif y a divorce on the groun d of cru elty. Sullivan v. Sullivan, [199 Md. 59 4, 600], 87 A.2d 604, 607 [(1952)]. Any misconduct of the husband will justify the wife in leaving him when it makes it impossible for her to live with him without loss of her health or self-respect, or gives her reasonable apprehension of bodily injury. If the husband's misconduct has been such as to render continuance of the marriage relation unbearable, justifying the wife in leaving him, he is the one w ho is gu ilty of dese rtion. Polley v. Polley, 128 Md. 60, [66,] 97 A. 526, [529 (1916)]; Schwa rtz v. Schw artz, 158 Md. 80, 90, 148 A. 259[, 262-63 (1930 )]; Singew ald v. Singe wald, 165 Md. 136, [147,]166 A. 441[, 446 (193 3)]; Kline v. Kline, 179 Md. 10, [13,] 16 A.2d 924[, 925 (1940)]; Fischer v. Fischer, 182 M d. 281, [286,] 34 A.2d 4 55[, 457 (1943 )]; Hockman v. Hockman, 184 Md. 47 3, [478,] 41 A.2d 5 10[, 513 (1945 )]; Miller v. Miller, 185 M d. 79, [82,] 4 2 A.2d 9 15[, 917 ( 1945)]; Bradshaw v. Bradshaw, 189 M d. 322, [32 5,] 55 A.2 d 719[, 72 0 (1947)]; Gold v. G old, 191 Md. 533, 539, 62 A.2d 540[, 543 (1948)]. 6 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 M d. 737, 740 -743, 248 A.2d 87 1, 872 (19 69), both cited by Deckman v. Deckman, 15 Md. Ap p. 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 of bodily injury will justify the innocent spouse in leaving the o ther on the grounds o f constructive desertion. Unlike actual desertion, w here it is the pa rty deserted who has the cause for divorce, in instances of constructive desertion, it is the departing party who has the cause of action for divorce. 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 em phatic and clear: It is beyond question that there may be a desertion although the husband and wife continue to live under the same ro of. For de sertion, as app lied to husband and wife, s ignifies something more than merely ceasing to live together. It mean s ceasin g to live t ogethe r as hus band a nd wif e. Id., at 290- 91, 89 A .2d at 61 3. See Mower v. Mower, 209 Md. 413, 417, 121 A.2d 185, 186187 (195 6); Kelsey v. Kelsey, 186 Md. 324, 326 , 46 A.2d 6 27, 628 (1 946); Dotterweich v. Dotterweich, 174 Md. 697, 200 A. 523, 523-524 (1938); Fries v. Fries, 166 Md. 604, 607608, 171 A. 703, 70 4 (1934); Klein v. K lein, 146 Md. 27, 33, 125 A. 728, 730 (1924); Roth v. Roth, 145 Md. 74, 125 A. 556 (1924); Fleegle v. F leegle, 136 Md. 630, 633, 110 A. 889, 7 890 (192 0). We ha ve explain ed: the true doctrine is believed to be that the statutory term desertion, as applied to husband and wife, means a cessation of the marital relation; and th is doctrine is in accord w ith the gene ral principles o f the divorc e law... [d]esertion implies something more than merely ceasing to cohabit or live together; for, as applied to husband and wife, it means the ceasing to live together as husband and wife. 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 fa ct that the spo uses sleep in separate bedrooms or that they have ceased engaging in sexual relations does not per se establish constru ctive de sertion, h owev er. Whitehu rst v. Whiteh urst, 257 Md. 685, 690, 264 A.2d 822, 825 (197 0); Parsons v. Parsons, 255 Md. 602, 604, 258 A.2d 437, 438 (1969); Fortman v. Fortman, 250 Md. 355, 360, 243 A.2 d 517, 52 0 (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 desertio n. Davey v. Davey, 202 M d. 428, 4 32, 96 A .2d 606 , 608 (1 953). 8 In the instant cas e, it is alleged by the a ppellant that M rs. Ricketts denied him marital relations and forced him from the marital bedroom. Under Md. Code (1984, 20 04 Rep l. Vol.), § 7-102(a ) (3) of the F amily 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 d ivorce, notw ithstanding th at he and M rs. Ricketts are still living under the same roof, those allegations, and the necessary inferences, may sufficie ntly establish , for plea ding pu rposes , constru ctive de sertion. 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 posit ion 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, th erefore, sep arate and a part. 8 Constructive desertion, the appellee contends, in other words, may only be established when the parties are livin g separate a nd apart, that, in the absence of separation, there is no ground for div orce on that gro und. A ccordin gly, her m otion to dismiss . This is thus an appeal from a judgment granting a motion to dismiss. As we made clear in Afamefune ex rel. Afamefune v. Suburban Hosp., Inc. 385 Md. 677, 683, n. 4, 870 8 To the extent that M rs. Ricketts disputes the appellant s allegations tha t they are not living together as husband and wife or that she forced him from the marital bed or that she wished to terminate the marriage, having rebuffed his attempts at reconciliation, that does not change the focus of the analysis. As we shall see, although the appellant will not be relieved of his obligation to p rove the allegations he m akes, the appellee s disagreem ent with tho se allegations does not d etermine the adequac y of the com plaint. 9 A.2d 5 92, 595 n. 4 (20 05), A motion to dismiss for failure to state a claim tests the sufficiency of the pleadings. Md. R ule 2-322 (b)(2); see Converge Services Group, LLC v. Curran, 383 Md. 462, 475, 860 A.2d 871, 878-79 (2004) ( consideration of the universe of facts pertinent to the court s analysis of the motion are limited generally to the four corners of the complaint and its incorporated supporting exhibits, if any ); Paul V. Niemeyer & Linda M. Schue tt, Maryland Rules Commen tary, 206 (3d ed.2003) ( [t]he object of the mo tion is to argue that as a m atter of la w relief canno t be gran ted on th e facts a lleged ) . Thus, when reviewing the grant of such a m otion, a court must assu me the truth of all wellpled facts in the co mplaint as w ell 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 reasonab le inferences drawn f rom them , in a light m ost fav orable to the non -movin g party). See Benson v. State, 389 M d. 615, 626 , 887 A.2d 525, 531 (2005); Bobo v. State, 356 Md. 706, 707-708, 697 A.2d 1371, 13 72-1373 (199 7); Allied Invest. Corp. v. Jasen, 354 Md. 547, 555, 731 A.2d 957, 961 (1999 ) (reviewing motions to dismiss, trial and appellate co urts assume the truth of all well-pleaded, relevant, and material fac ts in the com plaint and a ny reasonab le inferences that can be d rawn the refrom. ); 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 m atters expres sly alleged ); Board of Education v. Browning, 333 Md. 281, 286 , 635 A.2d 373, 376 (1994) (in evaluating a motion to dismiss, the co urt must ac cept as true a ll well-pleaded facts and allegations in the comp laint ); A.J. Decoster Co. v. Westinghouse Electric Corp., 333 Md. 10 245, 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 mu st be assumed). Dismissal is proper only if the allege d facts and permissible inferences, so viewed, would, if proven , noneth eless fa il to affo rd relief to the pla intiff. Allied Invest. Corp. v. Jasen, 354 Md. at 555, 731 A.2d at 96 1; Bobo v . State, 346 Md. at 709, 697 A.2d at 1373; Morris v. Osmose Wood Preserving, 340 Md. 519, 531, 667 A.2d 624, 630 (1995). On appeal, a reviewing court must determine whether the trial court wa s legally correct, ex amining so lely the sufficiency of the pleading. Benson v. State, 389 Md. at 626, 887 A.2d at 531. There is no contention by the appellee that the allegations made by the appellant, and the permissible inference s drawab le therefrom , are not ma terial or relevan t or that they involve trivial matters. Nor is there any con tention ma de that the alle gations are n ot wellpled. Accordingly, viewing the well-ple d allegations and the pe rmissible inferences as true and in the light most favorable to the appellant, the appellant s complaint should not have been d ismisse d. The trial cou rt erred in doing s o. The appellant does, however, have the burden of proving the facts he has alleged, Owings v. Owings, 148 Md. 124, 128 A. 748, 749 (192 5); Lent v. Lent, 202 Md. 240, 244245, 96 A.2d 14, 16 (1953), as well as of introducing evidence of his attempt t o renew marital relations and of Mrs. R icketts 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. 11 III. 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 -custod ial paren t. Md. Code (1984, 2004 Repl. Vol.) § 1-201 of the Family Law Article.9 And tha t jurisdiction ex ists without regard to whether one of the parties has been granted, or is entitled to, a limited divorce. See Koger v. Koger, 217 Md. 372, 376, 142 A.2d 599, 601 (1958) (noting that Md. Code (1957), Art. 16, § 25 made it plain that the Chancellor must retain jurisdiction for the purpose of decidin g custody, w hen custo dy is prayed, even where a d ivorce is den ied); Smith 9 Md. C ode (198 4, 2004 R epl. Vol.) § 1 -201 of th e Family Law Article, as relev ant, provides: (a) In general. An equity court has jurisdiction over: * * * * (4) divorce; (5) custody or guardianship of a child except for a child who is under the jurisdiction of any juvenile court and who previously has been adjudicated to be a child in need of assistance; (6) visitation of a child; (9) support of a child. * * * * (b) In exercising its jurisdiction over the custody, guardianship, visitation, or su pport of a chi ld, an equity cou rt ma y: (1) direct who shall have the custody or guardianship of a child , pen dente lite or pe rmanently; (2) determine who shall have visitation rights to a child; (3) decide who shall be charged with the support of the child, pe ndente lite or pe rmane ntly. Its prede cessor p rovision , repeale d and re -codifi ed as a p art of C ode R evision , see Acts 1984, c. 296, § 1, eff. Oct. 1, 1984, was Maryland Code (1974, 1980 Repl. Vol., 1983 Cum Supp .) § 3-60 2 of the Courts and Ju dicial Pr oceed ings A rticle. 12 v. Smith, 216 Md. 141, 145, 140 A.2d 58, 60 (1958 ); Mower, 209 Md. at 419, 121 A.2d at 187; Sause v. Sause, 192 Md. 88, 93, 63 A.2d 632, 634 (194 9); Stirn v. Stirn, 183 Md. 59, 64, 36 A.2d 695, 697-698 (1944); Crumlick v. Crumlick, 164 Md. 381, 387-388,165 A. 189, 192 (1933); Barnard v. Godfrey, 157 M d. 264, 145 A. 614 (1 929); Hill v. Hill, 79 Md. App. 708, 711-12, 558 A .2d 1231, 1233 (1 989). Indeed, prio r to the ame ndment o f the statute in 1929, the issue in this case wo uld appear to have been decided. In Barnard, supra, referring to Md. Code (1924) Art. 16, § 80,10 this Court observed: 10 Md. Code (1924) Art. 16, § 80 then provided: The sev eral equity cour ts of this State s hall have o riginal jurisdiction in all cases relating to the custody or guardianship of children and may on bill or petition filed by father or mother or relative or next of kin or next friend of any child or children to direct who shall have the custody or guardianship of such child o r children, an d who s hall be char ged with h is, her or their support and ma intenance, and may from time to time thereafter annul, vary or mod ify its decre e or ord er in rela ting to su ch child or child ren. This pr ovision was o riginally en acted 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 passin g the same shall have f ull power to award to the wife such prop erty 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 reasonab le; and shall als o have po wer to ord er and direc t who sha ll have the g uardiansh ip 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 1 920, ch. 57 4, that provisio n was am ended to p rovide that th e 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. 13 From this languag e it will be seen that courts of equity in this state have full power, and it is their du ty, to determine who shall have the custody, control and guardianship of minor c hildren, and who sh all be charg ed with the ir maintenance and support, when applied to by any of the person s mentione d in the statute; and th is without re gard to the question of whether or not the parents of said child or children have been divorced or are living apart. 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. 56111 provided , with respec t to the award of custod y to a parent, that [w]here the 11 Acts of 1929, ch. 561 provided: The fa ther and m other are the joint natural g uardians o f their mino r child and are equally charged with its care, nurture, welfare and education. They shall have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child's custody. If either the father or mother dies, or abandons his or her family, or is incapable of acting, the guardians hip devolv es upon th e other pare nt. Where the parents liv e apart, the court may award the guardianship of the child to either of them. Md. Code (1924) Art. 72A, § 1, at which the provision was codified, was amended by Acts of 1 951, ch. 67 8, by striking the w ord equ ally and charg ing the pare nts, 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: (b) Th e paren ts of a m inor ch ild ...: (1) are jointly and severally responsible for the child s support, care, nurture, welfare, and education; and (2) ha ve the s ame p owers and du ties in rela tion to th e child. 14 parents live apart, the c ourt may aw ard the guardianship of the child to either of them. Captioned, Parent an d Child, it was effective June 1, 1929 and was codified at Md. Code (1924) Article 72A, § 1. As a result of Code Revision, the applicable section now is § 5-203 of the Family Law Article, having been re-codified without substantive change, Acts of 1986, ch. 65; Taylor v. Taylor, 306 Md. 290, 3 01 n. 9, 508 A. 2d 964, 969 n. 9 (1986). As pertinent to the issue this case presents for decision, § 5-203 (d)12 provides: (d)(1) If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents. (2) Neither parent is presumed to h ave any right to custody that is superio r to the rig ht of the other p arent. 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 introdu ctory proviso limits the court s power to award custody to one parent ove r the other to th ose 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 no twithstandin g § 1-201 and its clear and simple, though general, statement of the court s jurisdiction in parent-to-parent 12 This section addresses only the issue of the custody of the minor child or children, not support or visitation. Custody, however, is the threshold: until there is an award of custody, there ordinarily is no need or occasion to consider or decide the ancillary and dependent issues of support and visitation. 15 custod y matters. The appellan t sees the matt er qu ite di ffer ently. 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 suppo rt regardless of whether the p arents are divorced or p hysically separated. H e 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 re spect to pare ntal custody w here the pa rents were still living u nder th e same roof. The app ellant has the b etter of the arg ument. 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, suf ficient to justify the court in refusing to grant either party a divorce. On the contrary, as we have also seen, this Cou rt has hel d, see Kelsey, 186 Md. at 326, 46 A.2d at 628: Abandonment, within the contemplation of the divorce statute means something more than merely ceasing to live together; it means a cessation of the marital relation. Thus we recognize that a desertion may exist although the husba nd and wife liv e unde r the sam e roof. If a divorce m ay be decreed when th e parties are livin g under th e same roo f, it would make no sense, indee d, it would b e illogical, to deny the c ourt the right to de term ine th e cus tody, and support of the children of that marriage and, to the extent required, establish visitation with re spect to them. To be sure, § 5-203 (d) (1) unmistakably contains the requirement that the parents 16 live apart as a condition of the court awardin g 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, we do not seek meaning or intent from a ny other s ource. W here, in o ther wo rds, a statute is clear and unambiguous, logic will not substitute for, or trump, the clarity of the words. Stanley v. State, 390 Md. 175, 182 , 887 A.2d 1078, 10 82 (2005 ); Gillespie v. S tate, 370 M d. 219, 222 , 804 A.2d 426, 427 (2002); Greco v . State, 347 Md. 423, 429, 701 A.2d 419, 42 1 (199 7). Section 5-203 (d) (1) may not be r ead in is olation, h owev er. Adventist Health Care Inc. v. Maryland Health C are Comm n, 392 Md. 103, 125 n. 13, 896 A.2d 320, 333 n. 13 (2006), citing Deville v. S tate, 383 Md. 217, 223, 858 A.2d 484, 487 (2004); Navarro-Monzo v. Washington Adventist, 380 Md. 195 , 204, 844 A.2d 4 06, 411 (2004). It must be re ad in light of, and in conjun ction w ith, the co urt s juris diction i n divor ce and custod y matters, § 1-201 (a) and (b), the relationship between divorce and custody, as define d by this C ourt, see Barnard v. Godfrey, supra, 157 Md. at 267, 145 A. at 615-6 16, and the applicable grounds for divorc e. § 7-10 2 (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 enactmen ts ); see Pack Sh ack, Inc. v. H oward C ounty, 371 Md. 243, 257, 808 A.2d 795, 803 (200 2); Blevins v . Baltimore C ounty, 352 Md. 620, 642, 724 A .2d 22, 33 (1999). In Barnard, just months before the enactment of the predecessor legislation to § 5-203 17 (a), requiring living apart as a condition for the award of custody to one parent over the other, we c onstrued th e then app licable statute a s empow ering the eq uity courts, whenever application for that relief was sought by one or both parents, to determine cu stody, support and visitation without regard to the question of whe ther or not the parents of said child or children have bee n divorced or are living a part. 157 Md. at 167, 145 A. 2d at 615 (em phasis added). We also acknowledged that section a s declaratory of the inheren t power o f 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 determ ine 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 (1 924). When so viewed, rather than clear and unambiguous, the phrase is ambiguous. Collins v. State, 383 Md. 6 84, 689, 86 1 A.2d 7 27, 730 (2 004); Gardne r 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 applicatio n in a given situation, or w hen they ope rate together, is not cle ar. ). See also Sullins v. Allstate Ins. Co., 340 Md. 503, 508, 667 A.2d 617, 619 (1995) (construing contract term s); Tuc ker v . Fire man 's Fund Ins. Co., 308 Md. 69, 74, 517 A.2d 73 0, 732 (1986) (sam e). Given the purpose of the courts power over minors, 18 to promote th eir 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 Legisla ture s in tent. This approach is consistent with the Court s decision in Scheinin v. Scheinin, 200 Md. 282, 89 A.2 d 609 ( 1952) . There , Mrs. S cheinin filed a complaint for a divorce a mensa et thoro, now a lim ited 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 marriag e, support, and counsel fees. Id. at 285, 89 A.2d at 610. There was much dissatisfaction between Mr. and Mrs. Scheinin. At the center of th e dissatisfactio n was M r. Scheinin s relationship with his secr etary, which Mrs. Scheinin alleged was the cause of his abandonment and ill-treatment of her. After her insistence that the secre tary leave the marital home gained success, Mr. Scheinin, she stated, trea ted her w ith great crue lty, spoke abu sively to her, ridicule d her in front of the children and struck her many times. Subsequently, Mr. Scheinin told Mrs. Scheinin that he did not want to have anything more to do with her, whereupon Mrs. Scheinin, in consequence of that demand, moved to a back bedroom which she used as her bedroom, thereafter. She remained under the same roof with Mr. Scheinin, however, but without co-hab itation, id. at 286-287, 89 A.2d at 611, and despite Mr. Scheinin s cruelty and disregard. Id. When asked why she did not leave with her children, Mrs. Scheinin stated that she had no place to go. Id. at 291, 8 9 A.2d at 613. The chancellor granted Mrs. Scheinin a limited divorce on the ground of constructive 19 desertion and awarded her alimony, custody of the children , and ch ild supp ort. Id. at 290291, 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 th e marital con text 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 w here the parents, rather than living apart, are living under the same roof. Mowe r v. Mower, 209 Md. 413, 121 A.2d 185 (195 6), though by no mean s identical, is nevertheless instructive.13 In that case, Mrs. Mo wer sought a limited d ivorce from M r. Mowe r, pendente lite alimony, custody of their child, child support, and attorney s fees. Id. at 415, 121 A.2d at 185. When Mrs. Mower filed for divorce and also when the case was tried, both parties were living under the same roof, but had not had marital relations in several years. Id. at 416, 121 A.2d at 185. Since neither party had made an effort at reconciliation, the trial court refused to grant a div orce to either party, finding that both of them were at 13 Appellee argues that Mowe r v. Mower, 209 Md. 41 3, 121 A.2d 18 5 (1956), because the bill of complaint for divorce in that case was based on actual, not constructive, desertion, is not completely relevant to the analysis of the case sub judice. While it is not entirely clear from the opinion whether the ground was actual or constructive, the court simply noted that [c]omplainant sought a divorce on the ground that her husband abandoned her bedroom, Mowe r, 209 Md. 416, 121 A.2d at 186, we fail to see how either scenario would make any difference in the analysis. 20 fault, as they were content to live in a state of animosity and estrangement and that, therefore, no desertio n had o ccurred . Id. at 416-17, 121 A.2d at 186. It then dismissed the bill of complain t. This Court agreed that neither party was entitled to a divorc e, id. at 417-19, 121 A. 2d at 186-87; however, it reversed the trial court s dismissal of Mrs. Mower s bill of complain t. Id. at 419, 121 A. 2d at 187. Referring to Art. 16, § 34, empowering the equity courts to decide custody issues presented in a divorce action, whether a divorce is decreed or not, the Court opined: Where a bill for divorce a mensa et thoro also prays for c usto dy of a minor child and for its support and maintena nce, and th e divorce is d enied, the bill should not be dismissed but custody should be awarded and jurisdiction sh ould be retained for the purpose of awarding support and maintenance if the circum stances should warra nt such action. Id. at 419-20, 121 A.2d at 188. The record does not reflect that the parties living arrangem ents changed during the proceedings. Consequently, it must be presumed that this Court, in directing the trial court to consider the w ife s bill for custody, did so notwit hstand ing that M r. and M rs. Mo wer w ere livin g unde r the sam e 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 pro mote 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 39 8 (1978); Burns v. Bines, 189 Md. 157, 162163, 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 10 28 (1980 ); Ross v. Hoffman, 21 280 Md. 17 2, 174-75 , 372 A.2d 582 (197 7); Krebs v. Krebs, 255 Md. 264, 266, 257 A.2d 428 (1969); Montgomery County Department of Social Services et al. v. Sande rs, 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. R icketts is entitled to a divorce, has the jurisdiction and power to determine the custody, visitation, and support of the Ricketts children. JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY REV ERSED. REMANDED FURTHER TO THAT PROCEEDINGS COURT CASE FOR CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEE. 22

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