Aronson v. Aronson

• Decision Date: 02 April 1997
• Docket Number: No. 944,S,944
• Parties: Elliott Barton ARONSON v. Yudita Falk ARONSON. ept.Term 1996.
• Court: Court of Special Appeals of Maryland

Page 78

115 Md.App. 78

691 A.2d 785

Elliott Barton ARONSON v. Yudita Falk ARONSON.

No. 944, Sept.Term 1996.

Court of Special Appeals of Maryland.

April 2, 1997.

John J. Condliffe (Shub-Condliffe & Condliffe, P.A., on the brief), Towson, for Appellant.

Steven M. Caplan, Towson, for Appellee.

Argued before MOYLAN, CATHELL and HOLLANDER, JJ.

HOLLANDER, Judge.

This contentious divorce case is perhaps best summarized by two maxims: "more haste, less speed" and "hindsight is 20/20." As we look back, it is evident to us that the parties prematurely proceeded to trial. Our decision to vacate the judgment of divorce is an unfortunate but unavoidable consequence of the proverbial "rush to judgment."

Yudita Falk Aronson, appellee, filed suit against Elliott Barton Aronson, appellant, seeking a divorce on the grounds of adultery and a two year separation. ¹ When the trial commenced on December 14, 1995 on those grounds, the parties had only lived separate and apart for twenty-two and a half months. Moreover, the wife had condoned the adultery in issue. Thus, the two year separation ground was not quite ripe, and there was reason to believe that the adultery would not withstand a challenge. Under these circumstances, it is particularly noteworthy that the parties had not agreed in advance of trial to an amendment of the complaint on the ground of a one year voluntary separation. Further, their separation agreement did not suggest that both parties wanted to end the marriage. Nevertheless, with only a few weeks remaining to achieve the unassailable two year ground, trial commenced in the Circuit Court for Baltimore County.

At trial, over the husband's vigorous objection, the court permitted appellee to amend her complaint to include a claim for divorce based on a one year voluntary separation. Ultimately, the court granted appellee an absolute divorce on that ground. Subsequently, the court found appellant in contempt for failure to pay child support and sentenced him to the Baltimore County Detention Center, setting a purge amount of $11,900.00.

Appellant appeals from the court's judgment of divorce and from the contempt finding. He presents the following questions for our review:

I. Did the court err in granting the wife an absolute divorce on the grounds of a one-year mutual and voluntary separation?

II. Did the court err in admitting into evidence and allowing cross-examination of [the] husband on settlement discussions and a document prepared by [the] husband's lawyer for settlement purposes?

III. Did the court err in sentencing [the] husband to jail for civil contempt with a purge provision where the court refused to take, consider and even mark for identification evidence concerning [the] husband's ability to pay?

In her brief, appellee frames the following issue, which we have reworded slightly:

Regardless of the parties' mutual and voluntary separation, was appellee entitled to a divorce on the ground of adultery, because condonation is not an absolute bar?

We are of the view that the trial court erroneously granted a judgment of divorce on the ground of a one year voluntary separation; the proof was insufficient to establish the element of mutual intent to end the marriage. Further, the court erred in concluding that condonation is an absolute bar to a divorce on the ground of adultery. Therefore, we shall vacate the judgment of divorce and remand for further proceedings. As the court did not preclude appellant from offering evidence in the contempt proceeding, we shall affirm the contempt order. In light of our holdings, we decline to address appellant's second issue.

Factual Summary

The parties were married on November 29, 1981 and have two minor daughters. Mr. Aronson was the founder and part owner of Ecu-Med, Inc., doing business as Aronson Medical & Respiratory Services ("Aronson Medical"). Ms. Aronson is the owner of Cruises Plus, a travel business.

In December 1992, appellee discovered that appellant was involved in an adulterous relationship with Ms. Stella Natarova, ² one of his employees. When appellee confronted appellant, he admitted to the adultery. The parties did not then separate; instead they engaged in discussions, lasting several months, about the future of their marriage. On or about April 1, 1993, appellee agreed to condone her husband's adultery on the condition that he not have any future contact with Ms. Natarova, and that he dismiss his paramour from employment; appellant agreed.

In June 1993, appellee discovered some checks, issued by Aronson Medical and made payable to Ms. Natarova, in appellant's briefcase. When she confronted appellant, he stated that the monies were part of a severance package. He admitted personally delivering the checks to Ms. Natarova, but claimed that no improprieties occurred during his contacts with her. Nevertheless, appellee no longer considered the parties as husband and wife. Although the parties continued to reside together in the family home, they ceased any sexual relations at that time.

In September 1993, appellee learned that appellant had purchased a condominium unit in Baltimore City. She waited for two weeks before confronting appellant about the purchase; during that time, appellant never acknowledged having purchased the condominium. Consequently, appellee retained counsel but continued to reside in the marital home.

On January 31, 1994, the parties entered into a written separation agreement (the "Agreement"). It was then that Ms. Aronson left the marital home. The parties have not resided together since that time. The Agreement provided, in relevant part, as follows:

WHEREAS, in consequence of current differences between Husband and Wife, Wife and Husband have agreed that Wife and the two Minor Children shall move from the family home.

WHEREAS, the Husband does not wish to end the marriage, and having love for his Wife; and Husband and Wife both having love for the Minor Children; nevertheless, they have agreed to a trial separation, which does not constitute abandonment by either Husband or Wife.

WHEREAS, the purpose of this separation is to give both parties time to think of their investment in marriage and seek professional counseling.

NOW, THEREFORE, in consideration of the promises and mutual covenants and understandings of each of the parties, the parties hereto covenant and agree as follows:

1. LENGTH OF TRIAL SEPARATION.

This Agreement shall govern the parties for a period of six (6) months. During this time, should the parties agree to reconcile, this Agreement is void. Reconciliation shall mean resumption of cohabitation. At the end of six (6) months, either Husband or Wife may ask the other for the right to reconcile. If either of the parties chooses not to reconcile, then all obligations under this Agreement herein cease.

* * * * *

12. RELINQUISHMENT OF MARITAL RIGHTS.

The parties shall continue to live separate and apart, free from interference, authority and control of the other, as if each were sole and unmarried; and each may conduct, carry on or engage in any business, profession or employment that to him or her may seem advisable, without any control, restraint or interference by the other party in all respects as if each were unmarried. Neither of the parties shall molest or annoy the other or seek to compel the other to cohabit or dwell with him or her by any means whatsoever, or exert or demand any right to reside in the home of the other.

* * * * *

26. COUNSELING.

This Agreement is entered into with the earnest hope of both parties that they will seek counseling. Husband will be responsible for any costs incurred by Wife for counseling that Husband's insurance does not pay. Each party shall have the right to choose his or her own counsellor, and all such counseling shall be confidential. Additionally, it would be strongly suggested that an occasional joint monthly meeting of the parties and a counselor of Wife's choice shall be held to discuss progress in reconciliation.

(Emphasis added). ³

On July 24, 1994, less than six months after the Agreement was executed, appellee filed a complaint for absolute divorce on the grounds of a two year separation and adultery. Appellant never filed a counterclaim. In his answer, he denied that the parties were beyond reconciliation. At trial, the parties and Jeffrey Pollack, the Certified Public Accountant for appellant and Aronson Medical, were the only witnesses. Mr. Pollack's testimony did not concern any of the grounds for the divorce. Rather, it dealt only with Mr. Aronson's financial situation.

Appellee testified about her discovery of appellant's infidelity and her decision to condone it in April 1993. She believed that appellant had continued his relationship with Ms. Natarova, because he had "lied" about the checks. She said, "And I think because he lied and kept it away from me there was something more than just severance pay only, because he didn't say the truth." Although appellee had "heard" that appellant was still involved with Ms. Natarova after the separation, she acknowledged that she had no evidence that appellant had actually engaged in adultery after her condonation.

Appellee also testified about her discovery of the condominium purchase. Appellant told her he bought the unit because it was a "good deal." After the confrontation about the condominium, appellee said she "knew then that it's time ... to see a, to go see a lawyer and it was time to call it quits." She further said that after discussing the issue from September 1993 to January 1994, she and appellant agreed that she would move out of the house. As appellant agreed to the separation and did not object to it, she considered the separation as "mutual and voluntary."

Appellee called her husband as a witness. Appellant testified that appellee wanted a trial separation, to which he agreed. But he insisted that he never desired to end the marital relationship. Instead, he...