Opinion
[No. 128, October Term, 1949.]
Decided July 18, 1950.
Divorce — Incompatibility, Not Ground For — Desertion — Refusal To Accept Offer Of Reconciliation By Deserting, But Repenting, Spouse Is — What Required — Good Faith Of Offer Of Reconciliation — Offers and Refusals On Witness Stand Deserve Minimum Weight — Direct Personal Communication Between Husband and Wife As To Marital Differences Is Badge of Good Faith — If Chancellor Misconstrues or Misunderstands Witnesses Giving Conflicting Testimony, Duty of Court of Appeals To Correct Error — Alimony — Modification By Chancellor Of Decree For, Not Prevented By Pendency of Appeal — If Modified and Appeal Taken, Original Decree Not Before Court of Appeals.
Incompatibility is not a ground for divorce in Maryland. p. 631
If one spouse leaves the other without cause and repents and proposes to renew the cohabitation, and the other refuses, it constitutes desertion by the one refusing from the time of the refusal, provided the offer to return is made in good faith, and is free from improper qualifications and conditions, and is really intended to be carried out in accordance with the performance of the duties and obligations of the matrimonial cohabitation. p. 633
In a divorce case, while due weight should be given to the findings of the judge who saw and heard the witnesses and observed their demeanor where their testimony is conflicting, if he misconstrued or misunderstood them, it is the duty of the Court of Appeals to correct any such error. p. 636
On the question of good faith in offers of reconciliation by parties to a divorce case, offers and refusals from the witness stand deserve a minimum of weight. p. 638
In marital differences, direct personal communication between the husband and wife, and not communications through counsel or other intermediaries or by mail or telephone, is a badge of good faith. p. 638
In the case at bar, where defendant-husband was found guilty of desertion by refusing the offer of reconciliation of his wife who was found to have left him without cause, practically the only basis for the husband's contention on appeal that the judge misconstrued or misunderstood the witnesses was a statement in the opinion to the effect that the husband refused on the witness stand to resume marital relations even though the wife, while testifying, renewed her offer of reconciliation. The Court held that, although there was not in the printed testimony any statement in totidem verbis to that effect, the husband's testimony, together with his demeanor, may well have been taken as a new refusal and the wife's testimony, together with her demeanor, as a renewal of her offer, and that it was no less clear on the facts stated in the chancellor's opinion, even though his statement therein [referred to, supra] were omitted, that the wife made a bona fide offer of reconciliation, which the husband rejected and that he thereby became guilty of desertion. pp. 637-638
Pendency of an appeal in a divorce case does not deprive the lower court of power to modify the alimony previously awarded and where the lower court has done so and an appeal been taken from its decree, provisions of the original decree are not before the Court. pp. 638-639
Decided July 18, 1950.
Appeal from the Circuit Court for Prince George's County (DIGGES, J.).
The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
Joseph B. Simpson, Jr., with whom were Vivian V. Simpson, Simpson and Simpson and P. Batemen Ennis on the brief, for appellant.
Anne S. Musgrave for appellee.
Suit by Joyce Hornstein against Bernard Hornstein for a divorce a mensa et thoro on the grounds of cruelty and desertion. Defendant filed a cross-bill for a divorce on the ground of desertion. The chancellor having found desertion on the part of the defendant, a decree was entered for the plaintiff granting her a divorce and alimony and an appeal was taken. Thereafter and pending the appeal, a decree modifying the alimony award in the first decree was entered and an appeal was taken by the defendant. The opinion of the chancellor is as follows:
Reporter's Note. Here set forth per the request in the opinion of the Court, p. 636, infra.
The plaintiff, Joyce Hornstein, has filed in this case a Bill of Complaint asking for a divorce a mensa et thoro on the ground of cruel and inhuman treatment, as well as desertion, on the part of the defendant. The defendant has answered denying his guilt of such conduct and has further filed a Cross-Complaint seeking a divorce on the ground of desertion.
The testimony shows that the parties were married on August 10, 1947, in Washington, D.C., and almost immediately began to have minor marital arguments. As expressed by the plaintiff "we began to argue shortly after our marriage, sometimes about small things, sometimes about money". They at first lived in the District of Columbia in a rooming house with the plaintiff's mother and sister occupying the front room and the parties to this suit occupying a room in the back. A fair inference may be drawn from the testimony that the chief arguments between the parties grew out of discussions of their financial situation. Eventually all of the earnings of both of the parties were turned over to Mrs. Hornstein to manage and this arrangement apparently continued up until the date of their separation. Even though this seemed to be in accordance with her desire, she complained that she had no experience in managing financial matters and seemed to think that her husband had cast a great burden upon her. Eventually the parties purchased a home in Prince George's County, Maryland, and together with Mrs. Hornstein's mother and sister moved there to live. Testimony shows in great detail that this did not solve the difficulties between the parties, but they were incompatible and the household certainly was not a happy one. It is not clear from the testimony exactly what brought about various arguments and complaints testified to but in any event they were certainly based on minor instances and ones that sensible and intelligent people could certainly adjust had that been their mutual desire and wish. The parties continued to live in their Maryland home as husband and wife until September 15, 1948. On that date, Mrs. Hornstein went with some friends to Washington and later to Patuxent Naval Base in St. Mary's County, Maryland. She testified that she was forced to leave as she had become fearful that her husband would violently injure her and seemed to think that he intended to do her grievous bodily harm. She attempts to justify her action in leaving by stating that Mr. Hornstein from time to time read her from the sonnets of Shakespeare. She states that he would read to her aloud from Othello, particularly the death scene where Othello kills Desdemona, and then remarked "That is exactly how I am going to do it. I am going to kill you. Come over here, Joyce. You see how it is getting dark. I mind very much throwing people out. If you don't go, I will kill you, so help me". She, however, further testified that on no occasion did he physically try to injure her and made no attempt to do so even though at times he did lose his temper and throw the dishes about the house. The testimony taken, we believe, justified the conclusion that the parties were incompatible and most, if not all, of the trouble seemed to grow out of Mrs. Hornstein's extreme nervous condition resulting in her imagining great consequences from inconsequential arguments or acts. An example of this may be seen from her testimony to the effect that she objected to her husband patting the dog, and construed this to mean that since he did not pat her little sister that he thought more of the dog than he did her sister. It seems clear from the evidence that Mrs. Hornstein's mother's and sister's presence in the home did not help the situation, but rather aggravated disagreements between the parties. Mr. Hornstein objected to the fact that he very seldom had an opportunity to see and be with his wife alone, as not only did his mother-in-law and sister-in-law live in the household, but accompanied him and his wife whenever they went to the movies or sought other forms of recreation.
It would seem, therefore, that the parties from almost the very beginning, were incompatible. Incompatibility, however is not a ground for divorce in Maryland. Oertel v. Oertel, 145 Md. 177, 125 A. 545. Maryland Annoted Code, Article 16, § 40, 16, § 41, 16, § 41A.
The arguments of these parties finally culminated on September 15th with Mrs. Hornstein packing her personal belongings, giving her wedding ring back to her husband, and moving from the premises. Shortly thereafter Mr. Hornstein left the home and went to visit his father in New York. After staying away for a short while, Mrs. Hornstein moved back into her home in Prince George's County, Maryland, and has since that time remained there. The Court concludes that Mrs. Hornstein was not justified in leaving the home and since she apparently was determined to leave the marital domicile, her conduct made her the wrong doer, and therefore guilty of deserting her husband. Even though his conduct may not have been that generally desired and sought of a husband, nevertheless, there is nothing in the testimony to disclose that he was guilty of any conduct which justified Mrs. Hornstein taking the extreme measure she did in leaving the home provided for her by her husband. In fact we think a fair inference from all the testimony forces the Court to the conclusion that practically all of the difficulty complained about were either imaginary on the part of Mrs. Hornstein, or brought about by her own actions. From the testimony and her demeanor on the witness stand we conclude that quite probably her attitude and construction of various acts on the part of her husband were due to a large extent to her highly nervous condition. She seemed to believe that her husband was questioning her sanity by cautioning her about leaving burning cigarettes about the house. We find nothing in her testimony about these various instances to justify any such conclusion on her part, and therefore believe had she made a real attempt at that time to work out the trouble she was having with her husband, that this result could have been accomplished. We do not believe that the instances referred to in the testimony, singly or collectively, justify a wife in taking the extreme step of dissolving the marriage.
Concluding, as we do, that the marriage relations were terminated on September 15th by the unjustified leaving of the home on the part of Mrs. Hornstein, we must now decide whether or not her offer of reconciliation made at a later date absolved her from her guilt and in effect made Mr. Hornstein the deserting party by refusing her offer of reconciliation.
The testimony shows that shortly after Mrs. Hornstein moved back to their home in Maryland, each of the parties obtained the services of an attorney. Later there was a conference at Mr. Ennis' office, one of the attorneys representing Mr. Hornstein, and it was at this conference, at the suggestion of Mrs. Hornstein's counsel, she offered to forget the past differences between the parties and suggested that a reconciliation be effected. No conclusion was reached at this conference and the next day Mrs. Hornstein went to see her husband at the place of his employment at the Navy Department. According to Mr. Hornstein, the following conversation took place: "That she had done a lot of thinking. That she would send her mother and sister away, that she would let me handle the money. I told her that since that was exactly the same sort of thing that she had said before we were married, that her mother and sister would take care of themselves, I told her that I would have to think about that. That sort of thing hadn't worked out before, and that I would have to think it over. That I would think it over and get in touch with my counsel, and since we both secured counsel, that we work through counsel. I thought it was completely impossible because I couldn't go back to living that was so unsettled and constantly raising such a commotion around the house". Later, Mrs. Hornstein was informed that her husband would not agree to again resume their marital relations and again refused to do so while testifying from the witness stand even though Mrs. Hornstein again renewed her offer while testifying as a witness in this case.
The law is well settled in Maryland that even though a party be guilty of desertion, as we find Mrs. Hornstein was in this case, nevertheless, if a party in good faith offers to become reconciled and the original innocent party refuses this offer, he in turn becomes the guilty party, and of course, must suffer the consequences of his refusal.
As stated by the Court of Appeals in the case of Kirkwood v. Kirkwood, 165 Md. 547, 170 A. 180, 182, "It is undoubtedly true that, if one spouse leaves the other without cause, as in the present instance, and repents and proposes to renew the cohabitation, and that other refuses, it constitutes desertion by the one refusing from the time of the refusal, provided the offer to return is made in good faith, and is free from improper qualifications and conditions, and is really intended to be carried out in accordance with the performance of the duties and obligations of the matrimonial cohabitation." See also, Pitts v. Pitts, 181 Md. 182, 29 A.2d 300; McClees v. McClees, 162 Md. 70, 158 A. 349; and Simmont v. Simmont, 160 Md. 422, 153 A. 665; Wise v. Wise, 159 Md. 596, 152 A. 230.
From the testimony in this case we believe Mrs. Hornstein was acting in good faith, and was willing to become reconciled with her husband. She placed no conditions upon her offer of reconciliation and actually offered to remove at least two of the difficulties about which there were so many arguments prior to their separation. Mr. Hornstein justifies his refusal to return on the ground that he did not believe she would comply with these two offers. We do not believe that he was justified in this belief because as a matter of fact, both were under his control. If he did not desire his mother-in-law and sister-in-law in the home, he, of course, as the owner thereof, could see that they did not live there. As far as managing the finances of the family were concerned, the money received was in payment of his labors and was paid to him. He, of course, could merely not turn over the funds to his wife, and therefore there could be no question about who was to manage the family finances. It is difficult to think of anything further that Mrs. Hornstein could have done or do to demonstrate her good faith. She is living in the family home and she has sought her husband out and expressed a desire that he return to live with her. She has not at any time attempted to keep Mr. Hornstein from coming to the home, but apparently for some time now has been ready and willing that he should come there in order that the parties might resume their marital relations. We therefore conclude that by the refusal of Mr. Hornstein to resume living with his wife after her offer of reconciliation, he became guilty of desertion, and therefore the Court will sign a decree granting a divorce a mensa et thoro to the Plaintiff, Joyce Hornstein.
The parties to this case have asked the Court to determine the ownership of the property with particular reference to the personal property constituting the furniture, etc., located in the home of these parties. Since, however, under the view we take of the case, it becomes the duty of the defendant to support his wife, we believe that Mr. Hornstein should provide a furnished home for Mrs. Hornstein. Accordingly, the decree will provide that Mrs. Hornstein be permitted to continue to live in the home owned by the parties jointly at 517 64th Avenue, Capital Heights, Maryland, with Mr. Hornstein paying the payments due on the Mortgage, taxes and insurance, and further paying to Mrs. Hornstein the sum of $80 per month, payable in equal semi-monthly installments, as permanent alimony.
Affirmed.
This is an appeal from a decree granting plaintiff a divorce a mensa on the ground of desertion and in effect refusing defendant a divorce on that ground on his cross-bill. There is also a second appeal from a later decree modifying the original decree with respect to alimony. The case was tried in open court before Judge Digges, who filed a full and careful opinion, holding that plaintiff was originally guilty of desertion but that afterwards she made a bona-fide offer of reconciliation, which defendant rejected and that thereby defendant became guilty of desertion.
This marriage was handicapped from the beginning by differences in nationality and language, by a nervous or emotional temperament on the part of the wife and by quarrelsome dispositions on the part of both. Plaintiff is a citizen of Italy, defendant an American. Subjects of argument between them ranged from the question whether the husband cared more for the dog than he did for his wife's little sister to the proper pronunciation of "Adeste, fideles", found on a Christmas card. The latter question may perhaps have involved long-standing differences between English, Continental and American pronunciation of Latin words. Whatever it involved, it approaches the ultimate in triviality as a subject of controversy between husband and wife. A common interest in Shakespeare was insufficient to bridge the gulf between them, but only furnished an occasion — or a pretext — for separation.
This is peculiarly a case in which due weight should be given to the findings of the judge who saw and heard the witnesses and observed their demeanor in connection with their sometimes conflicting testimony. Defendant in his brief says, "We believe that the law was thoroughly understood and well stated by the learned chancellor below, but we most respectfully submit that the chancellor erred in applying that law to the facts and must have misconstrued or misunderstood the witnesses when testifying. The verbosity of the witnesses might well have caused the learned chancellor to reach this erroneous conclusion." We agree with defendant that the opinion below accurately states the law (at least from defendant's point of view) and applies it to the facts as the court understood them. If, however, the court misconstrued or misunderstood the witnesses when testifying, it is our duty to say so and to correct any such error. The scope of our review should practically be limited to the question whether the court did misconstrue or misunderstand the witnesses.
In the circumstances, it seems unnecessary to repeat or summarize the statement of facts. We shall request the Reporter to set out Judge Digges' opinion in the statement of the case.
If we were to review the case de novo, regardless of the decision and the opinion below, we might hesitate to find that plaintiff was originally guilty of desertion. It is true her testimony that her husband threatened to treat her as Othello treated Desdemona is uncorroborated, but the husband's denial is also uncorroborated. Even if he never intended to carry out such a threat, he may have made it in the hope that she would take it seriously enough to give him plausible ground for charging desertion. His subsequent conduct is not inconsistent with this possibility. Moreover, it is questionable whether her conduct in any aspect amounted to desertion. She left the common home for a few days or weeks and then returned voluntarily. When she returned, he had left, he says on a visit. When he learned that she had returned he did not return and never has done so. It seems questionable whether her conduct shows an intention to terminate the marriage relation. Flohr v. Flohr, 195 Md. 482, 73 A.2d 874. Giving him back her engagement ring was an unusual act, but seems rather an act of petulance than of deliberation.
However, we shall assume, as Judge Digges found, that plaintiff originally deserted her husband. On this assumption we think that on the facts stated in Judge Digges' opinion there is no escape from his conclusion that plaintiff made a bona fide offer of reconciliation, which defendant rejected, and that defendant thereby became guilty of desertion. This conclusion would seem no less clear if there were omitted from the opinion the statement, in part of one sentence, which defendant says is unsupported by evidence, viz., that defendant "refused to do so [resume marital relations] while testifying from the witness stand even though Mrs. Hornstein again renewed her offer while testifying as a witness in this case." This statement is practically the only basis for defendant's contention that the judge "misconstrued or misunderstood the witnesses". We do not think it supports defendant's contention.
We do not find in the printed testimony any statement in totidem verbis that the husband again refused from the witness stand to resume marital relations or that the wife renewed her offer while testifying as a witness. The husband's testimony (fully confirming the wife's testimony) as to his refusal of her offer amounted to an emphatic affirmance of his determination not to be reconciled. This testimony, together with his demeanor, may well have been taken as a new refusal by him. The wife testified, "Q. Would you be willing for your husband to come back and live with you? A. No.
"Q. Why? A. Simply because I think he doesn't love me." (This sentence was followed by a somewhat rambling statement elaborating it.) This testimony, together with her demeanor, may well have been taken as indicating that she would renew her offer if he would in good faith resume marital relations on the normal terms of mutual affection. She was then convinced that he would not do so.
On the question of good faith in offers of reconciliation, we think offers and refusals from the witness stand deserves a minimum of weight. In such testimony too often the theatrical element is at a maximum, sincerity at a minimum. Kirkwood v. Kirkwood, 165 Md. 547, 170 A. 180.
Plaintiff went direct to defendant to make her offer of reconciliation. He refused and suggested "that we work through counsel". This court has more than once suggested that in marital differences direct personal communication, and not communications through counsel or other intermediaries or by mail or telephone, is a badge of good faith. Hokemeyer v. Hokemeyer, 194 Md. 223, 227, 71 A.2d 15, 17, and cases cited. Defendant professed doubt or disbelief that a reconciliation "would work out". His conduct as a whole suggests that he may have feared that it might work out, at least to the extent of depriving him of a possible ground for charging her with desertion.
The original decree, dated September 9, 1949, required defendant to "pay the sums due on the mortgage, taxes and insurance on the house jointly owned by the parties * * *." Later, the home having been sold under foreclosure, a decree of December 13, 1949 increased the amount of alimony and eliminated the provision for payment of expenses on the house. Whether these provisions of the original decree were lawful is not before us, as they have been eliminated by the later decree. Pendency of this appeal did not deprive the lower court of power to modify the alimony. Rohrback v. Rohrback, 75 Md. 317, 23 A. 610. There is nothing in the printed record from which we could determine whether alimony under the later decree is more than an equivalent of the provisions of the earlier decree or is excessive. It has not been argued that it is excessive.
Decrees affirmed, with costs.