Hornstein v. Hornstein

• Decision Date: 18 July 1950
• Docket Number: 128.
• Citation: 75 A.2d 103,195 Md. 627
• Parties: HORNSTEIN v. HORNSTEIN.
• Court: Maryland Court of Appeals

75 A.2d 103

195 Md. 627

HORNSTEIN v. HORNSTEIN.

No. 128.

Court of Appeals of Maryland.

July 18, 1950

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Joseph B. Simpson, Jr., Rockville (Vivian V. Simpson and Simpson and Simpson, Rockville, and P. Batemen Ennis Washington, D. C., on the brief), for appellant.

Anne S. Musgrave, Laurel, for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ. The following is the opinion of Judge DIGGES in the Court below:

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, Section 40, 41, 41A.

The arguments of these parties finally culminated on September 15th with Mrs. Hornstein packing her personal belongings, giving her wedding right 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....