Hahn v. Hahn

• Decision Date: 11 March 1949
• Docket Number: 115.
• Citation: 64 A.2d 739,192 Md. 561
• Parties: HAHN v. HAHN.
• Court: Maryland Court of Appeals

64 A.2d 739

192 Md. 561

HAHN v. HAHN.

No. 115.

Court of Appeals of Maryland

March 11, 1949

Appeal from Circuit Court, Carroll County; James E. Boylan, Jr. Chief Judge.

Suit by Ada I. Hahn against Hugh H. Hahn for divorce. From a decree granting the divorce, the defendant appeals.

Affirmed in part and reversed in part, and cause remanded.

Wilie L. Ritchey, of Baltimore, for appellant.

Stanford Hoff, of Westminster (Donald C. Sponseller, of Westminster on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

This is an appeal by Hugh H. Hahn, appellant, from a decree of the Circuit Court for Carroll County granting a divorce to his wife, Ada I. Hahn, appellee, on the ground of voluntary separation and also ordering the appellant to pay to the appellee the sum of $2,900.00 with interest from the date of the decree, August 13, 1948, and costs of the proceeding.

On October 23, 1947, the appellee filed a bill of complaint for a divorce a vinculo matrimonii from the appellant on the ground of abandonment. Subsequently the appellant filed his cross-bill against his wife for a divorce on the ground of adultery. After testimony was taken in open court on March 12, 1948, the Chancellor filed an opinion and decree dismissing both bills on the ground that the charges were not proven. In the opinion in that case the Chancellor said '* * * the parties to this cause agreed to terminate their marital relations * * *. The original bill was brought on the ground of abandonment by the husband and as they, in the Court's judgment, entered into a voluntary separation, the bill cannot be maintained against the husband on the ground of abandonment.' The Chancellor also found that as the wife had property in her own right, she was not entitled to counsel fees.

Subsequently on April 12, 1948, the appellee filed the bill of complaint, now before us, for a divorce a vinculo matrimonii on the ground that she and her husband had voluntarily lived separate and apart since March, 1945.

She also alleged that the separation was beyond any reasonable expectation of reconciliation. In that bill she also asks the court to 'determine all questions hereto in connection with the ownership of personal property possessed or claimed by either or both of them, and make such division of said property between them as may be just and equitable.' The appellant having failed to file an answer to that bill, a decree pro confesso was taken against him on May 28, 1948, after which testimony was taken before the court on June 11, 1948. Before a decree had been passed, on July 15, 1948, the appellant filed a petition to strike out the decree pro confesso and asked leave to file an answer. After further proceedings, the decree pro confesso was stricken out and an answer to the bill of complaint, now before us, was filed by the appellant. In that answer he denied that the parties had voluntarily lived separate and apart and denied that he had retained the majority of the personal property. After further testimony, on July 30, 1948, the Chancellor passed a decree granting the appellee a divorce a vinculo matrimonii, on the ground of a voluntary separation agreement, from the appellant and ordering that he pay to the appellee 'the sum of twenty-nine hundred dollars (being the principal of the mortgage of $4500.00, less the sum of $1600.00),' with interest from the date of the decree and costs of suit. From that decree the appellant appeals here.

Without reciting in detail the testimony, it is evident that the parties to this cause had lived rather a turbulent married life for many years resulting in the filing of the former divorce suits, as hereinbefore stated. From the testimony in the case before us it is evident that the husband and wife have lived separate and apart since March, 1945. He says the separation was in December, 1944, 'as far as I was concerned'. When asked on cross-examination whether there was an agreement between herself and her husband to live voluntarily separate and apart, she answered 'there wasn't any agreement'. She evidently meant by this that there was no formal written agreement between the parties. The appellant testified: 'One Saturday after she left, I went in the barber shop and she was in right fair humor and so we agreed to settle it. So, she wrote a little note and left a line for me, the ten thousand dollar interest account, she would get the interest account, and she wrote out a check in her handwriting and I signed it, and three thousand dollars, a three thousand dollar check, and I signed a similar paper for this mortgage. She was going to buy a house and room and board me for $15.00 a week, we were to live in two different bed rooms like strangers, each one coming and going as they pleased and each one was to keep a key for the lock box which had sixteen hundred dollars in it. Neither one was to touch it because if she roomed and boarded me for the amount said it was hers, and if she refused to have a home and room and board me then it was to be mine. She failed to do so. She said she couldn't find a house. Nothing that I ever picked out, or did, suited her, so I give her the privilege to do as she pleased.' Although this agreement was never signed, the separation has continued. Both parties admit that no request was made of the other party to return and resume cohabitation.

This was not only an agreement to separate but also an agreement for a division of their property. It is apparent that, although both parties carried out that part of the agreement to live separate and apart, the wife did not fulfil her part to buy a house and board the husband as agreed. As found by the Chancellor the joint assets at the time of the separation were as follows:

Joint checking account in the Farmers and Mechanics National Bank ..	$25,460.46
Interest account in the same Bank ...................................	10,069.14
Mortgage of Paul M. Hahn and wife ....................................	4,500.00
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Total ...........................................................	$40,029.69

At the time of the agreement the husband signed checks to the wife for $13,069.14 which she received.

Later she took the $1,600.00 in the safe deposit box in their joint names, without the consent of her husband. In reference to the mortgage which the husband in March, 1945, agreed to turn over to his wife, this mortgage was from Paul Hahn, the son of the parties, and his wife, to the appellant and the appellee. Although the husband originally agreed that this mortgage was to become the property of the wife, it appears that in August, 1948, the son desired to pay this mortgage off. The husband at that time refused to execute the release unless he received all of the principal. Although the wife argued with the husband he still demanded the money. Both parties finally signed the release and the appellant received the $4,500.

Code (1947 Supplement), Article 16, Section 40, Subsection 5, provides in part that the Court may decree a divorce a vinculo matrimonii 'when the husband and wife shall have voluntarily lived separate and apart, without any cohabitation, for three consecutive years prior to the filing of the bill of complaint, and such separation is beyond any reasonable expectation of reconciliation.' The parties here have lived separate and apart without any cohabitation for three consecutive years since the agreement. The question therefore arises as to whether this separation was voluntary. This cause for divorce was first enacted by Chapter 396 of the Acts of 1937 and has been before this Court in a number of cases.

Whether the separation of the parties was voluntary previous to the time of the above recited agreement is immaterial at this stage of the case. A separation may be involuntary when it first occurred and later may become voluntary. It was said in the case of France v. Safe Deposit & Trust Co., 176 Md. 306, at page 326, 4 A.2d 717, 726: 'So that a separation may be voluntary at the inception of the physical separation and remain so throughout the required period. Or it may begin at any time after the physical separation when the parties manifest agreement in a common intent of not living together again, but in that case it must continue without interruption for five years (now three years) from the time of the agreement, before either spouse is entitled to a divorce under the statute.' Campbell v. Campbell, 174 Md. 229, 198 A. 414, 116 A.L.R. 939.

In Campbell v. Campbell, supra, the first case before this Court after the enactment of the statute, the husband sought a divorce from his wife on the ground of voluntary separation for a period of five years, the statute then specifying the term as five years instead of the three at present. The testimony showed...