Hockman v. Hockman

• Decision Date: 02 March 1945
• Docket Number: 22.
• Parties: HOCKMAN v. HOCKMAN.
• Court: Maryland Court of Appeals

41 A.2d 510

184 Md. 473

HOCKMAN v. HOCKMAN.

No. 22.

Court of Appeals of Maryland

March 2, 1945

Appeal from Circuit Court for Howard County; James Clark, Judge.

Suit by Paul B. Hockman against Grace Hockman for divorce a mensa et thoro on ground of desertion wherein defendant filed a cross-bill for divorce a mensa et thoro and alimony on ground of cruelty. From a decree granting the husband a divorce a mensa et thoro and dismissing the cross-bill, the defendant appeals.

Reversed in part and affirmed in part, plaintiff's bill, of complaint dismissed and cause remanded.

Joel J. Hochman, of Baltimore, for appellant.

Jerome A. Loughran, of Ellicott City, for appellee.

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

DELAPLAINE, Judge.

Grace Hockman, appellant, and Paul B. Hockman, appellee, were married in 1921 and lived together about 23 years. On the evening of June 6, 1944, when Hockman returned to his apartment in Ellicott City from Ilchester, where he was employed as engineer in a paper mill, Mrs. Hockman asked him 'to take his clothes and get out.' He refused to do so, but later went out to purchase an alarm clock; and when he returned, the apartment door was locked. He did not make any effort to get in, but 'went on back down the street.' On the following day he came with a constable to get his clothes; and on June 15 entered suit for divorce a mensa et thoro on the ground of desertion. His wife filed a cross-bill for divorce a mesa et thoro and alimony on the ground of cruelty. She charges that her husband compelled her to submit to sexual intercourse when she was ill, thereby causing her physical injury. On July 31 the chancellor granted the husband a divorce a mensa et thoro and dismissed the cross-bill. The wife is appealing from tht decree.

It is well settled that where a husband compels his wife to submit to sexual intercourse at times when it causes her serious injury, and there is reasonable apprehension that he will continue to do so, the wife is entitled to a divorce a mensa et thoro on the ground of cruelty. Griest v. Griest, 154 Md. 696, 140 A. 590; Gardner v. Gardner, 104 Tenn. 410, 58 S.W. 342, 78 Am.St.Rep. 924; 1 Bishop Marriage, Divorce and Separation, sec. 1629. The marital obligation includes not only the wife's duty of submission upon reasonable request of the husband, but also the husband's duty of forbearance upon reasonable request of the wife. Mayhew v. Mayhew, 61 Conn. 233, 23 A 966, 29 Am.St.Rep. 195. The courts recognize that acts committed by a husband in the exercise of his marital rights while not ordinarily dangerous or cruel, may be both dangerous and cruel. The Supreme Court of New Hampshire has said: 'Humanity demands that such complaints be heard. The wife protecting her life from the ungoverned lust of her husband by seeking a divorce, presents as strong a case of relief under the law as when she flees from his intolerable cruelty inflicted by brute force. Neither public policy nor morality requires the exclusion of her testimony, if such exclusion would protect him in impairing her health or endangering her life by degrees, whether the result is accomplished by the brutal gratification of his lustful passions, the continued infliction of physical force, or the administering of slow poisons.' Melvin v. Melvin, 58 N.H. 569, 42 Am.Rep. 605, 607.

It appears from the evidence that Mrs. Hockman has undergone three operations, performed for tubal pregnancy, adhesions of her stomach, and gall bladder trouble, the last in 1942. She become ill again in May, 1944, when she was given treatment for two weeks in the hospital at Sandy Spring. She testified that often, while she was suffering, she 'cried and begged him' not to have intercourse with her, as it 'kept her stomach swollen,' but her protests resulted in altercations. She swore that, while she was still suffering from the gall bladder operation, he threatened to kill her if she refused his demands. According to her testimony, she told him that the incision had not fully healed, and she was afraid that it might turn into cancer, and she 'pleaded and cried to him not to, to wait until she healed if he must,' but he asserted that 'if she was no good to him, she might as well be dead anyway.' Appellant's testimony was corroborated by their only child, Eleanor M. Bendler. She testified that she had heard her mother crying in her bedroom on numerous occasions, both before and since the gall bladder operation, and that she could hear the mother protest to the father in their bedroom that she was not well. She declared that she had heard her father curse her mother and tell her to get out and also say that she was 'no good to him.' She further declared that, after her mother returned from the hospital in 1942, she heard her leave her bed and go downstairs, and 'the next day her mother could hardly walk.' Corroboration of appellant's testimony was also given by her sister, Mrs. Arbutus Cameron, who swore that her stomach before her last operation was 'swollen like a dinner pot,' and that she had heard her sister get up at night vomiting and had also heard them arguing in the night. She swore that she heard her sister exclaim: 'For God's sake, not tonight!' The chancellor refused to award the divorce to Mrs. Hockman on the theory that her physician did not testify and hence her testimony was not sufficiently corroborated. Under the Maryland evidence statute, no decree of divorce shall be entered upon the testimony of the plaintiff alone, but in every case testimony in corroboration of that of the plaintiff shall be necessary. Code 1939, art. 35, sec. 4. In our judgment appellant's testimony was amply corroborated. The corroboration, required by our statute to support the testimony of the plaintiff in a suit for divorce, need not go to every particular statement found in the plaintiff's testimony; it is sufficient if it gives substantial support to the plaintiff's testimony as to material and controling facts. Jacobs v. Jacobs, 170 Md. 405, 409, 185 A. 109.

We recognize that when testimony is taken in open court, the chancellor has the opportunity to see the witnesses, to hear their testimony from their own lips, and to observe their expression and demeanor, so that, in weighing the testimony and passing upon its credibility, his judgment is informed by the manner and conduct of the witnesses while testifying. The Court of Appeals does not have this advantage, and therefore has no inclination to disturb the chancellor's findings on issues of fact, especially where there is considerable conflict in the testimony. However, there is no presumption of law in favor of the chancellor's findings of fact that must be overcome on appeal; and where his determination is not supported by the clear weight of the proof, this Court will reverse the decree. Bortner v. Leib, 146 Md 530, 546, 126 A. 890; Jacobs v. Jacobs, 170 Md. 405, 143, 185 Md. 109. In this case the evidence is sufficient to prove that...