Matysek v. Matysek

• Decision Date: 15 January 1957
• Docket Number: No. 29,29
• Citation: 212 Md. 44,128 A.2d 627
• Parties: Anthony A. MATYSEK v. Marjorie S. MATYSEK.
• Court: Maryland Court of Appeals

Page 44

212 Md. 44

128 A.2d 627

Anthony A. MATYSEK v. Marjorie S. MATYSEK.

No. 29.

Court of Appeals of Maryland.

Jan. 15, 1957.

Morton H. Perry and Simon Nobel Silverberg, Baltimore, for appellant.

Preston A. Pairo, Baltimore (Preston A. Pairo, Jr., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

BRUNE, Chief Judge.

This is a divorce case in which the wife (appellee) was granted an absolute divorce on the ground that the parties had voluntarily lived separate and apart, without cohabitation, for a period of more than three years prior to the filing of the bill and that the separation was beyond any reasonable expectation of reconciliation. Code 1951, Article 16, Sec. 33, clause fifth. The husband admitted the fact and duration of the separation and the absence of cohabitation; but resisted the suit on three grounds: (1) he denied that the separation was voluntary, asserting that it was not by mutual agreement; (2) he denied that the separation was beyond reasonable expectation of reconciliation; and (3) he set up recrimination, based upon the wife's adultery, as a defense. The Chancellor found against him on the facts on the first and second grounds above stated and ruled against him as a matter of law on the third, holding that recrimination was not available as a defense to a suit for divorce based upon voluntary separation. The husband appealed.

The appellee filed a motion to dismiss the appeal because the appellant's brief was not filed within the time prescribed by the Rules of this Court. The lateness did not, however, delay the hearing of the case in regular course and does not appear to have prejudiced the appellee. We therefore overrule the motion, and will turn to the merits of the case.

In this Court the appellant has made no attempt to upset the finding against him on the matter of reconciliation, as to which the Chancellor stated that he did not believe the appellant's testimony. We need not comment further on this phase of the case, except as incidental to other matters.

On the question of voluntary separation, the evidence, which consists of testimony of the wife corroborated by testimony of her mother, was to this effect; that the husband drank quite frequently; that he had humiliated the wife on a number of occasions; that he had repeatedly told her that she was 'no good' and to 'get out'; that following an argument he again made such statements to the wife at her mother's house on the night of July 25, 1952; that in response to his demand then made that she 'get out', she said 'All right'; and that early on the next morning she did get out and went to her mother's home. None of this testimony was disputed by the husband; in fact he did not testify at all about the events which led up to the separation.

The cases in this Court are uniform in holding that a voluntary separation as a ground for divorce under our statute imports a mutual agreement to live separate and apart. See Campbell v. Campbell, 174 Md. 229, 198 A. 414; France v. Safe Deposit & Trust Co., 176 Md. 306, 4 A.2d 717; Miller v. Miller, 178 Md. 12, 11 A.2d 630; Kline v. Kline, 179 Md. 10, 16 A.2d 924; Beck v. Beck, 180 Md. 321, 24 A.2d 295; Nichols v. Nichols, 181 Md. 392, 30 A.2d 446; Foote v. Foote, 190 Md. 171, 57 A.2d 804; Hahn v. Hahn, 192 Md. 561, 64 A.2d 739; Ashman v. Ashman, 201 Md. 445, 94 A.2d 257; Lloyd v. Lloyd, 204 Md. 352, 104 A.2d 595; Benson v. Benson, 204 Md. 601, 105 A.2d 733.

None of the above cases (nor any other which has come to our attention) holds that a voluntary agreement to live separate and apart must be arrived at either with calmness and courtesy or without anger. Courtesy certainly, and calmness probably, were lacking in the instant case, and in all likelihood anger was present. We think that a mutual agreement may be reached under such circumstances. The case which most nearly approaches the present case in the general tone of language used seems to be Miller v. Miller, supra. There the husband had threatened to leave the wife (for a reason which this Court found to be insufficient), and she replied 'Well if you want to go, go on and go, but you are going to have to take care of these children.' The husband claimed that this amounted to a voluntary agreement to separate. His contention was rejected because the wife's statement amounted merely to acquiescence in what she could not prevent. That was not the situation in the present case. The husband demanded that the wife leave. She could have refused. Instead, she agreed and she did leave.

We think that the language and conduct of the parties on the night of July 25th and the early morning of July 26th were sufficient to support the Chancellor's explicit finding that the separation was voluntary. At the conclusion of the testimony he said: 'I think these people separated voluntarily. They were glad to get away from each other.' In his memorandum opinion he substantially repeated this finding in saying: 'This Court finds as a fact from all the evidence in the case that the separation of the parties was a voluntary one. It cannot accept the testimony of the husband that he was opposed to such separation and that he now desires a reconciliation. It finds both in the manner and substance that the testimony the husband gave is entirely unworthy of belief.' Cf. Walker v. Walker, 209 Md. 428, at page 431, 121 A.2d 195, at page 197.

The Chancellor arrived at the conclusion that the separation was voluntary, notwithstanding testimony given by the wife's mother on cross-examination which showed that the wife had sought alimony in a previous suit which came on for hearing at some time before January, 1954. Since permanent alimony can be awarded only where a cause for divorce exists, and since that suit must have been brought long before the expiration of the statutory three-year period required for a divorce based upon voluntary separation, we think that the inference is strong that the earlier suit was based upon some culpatory ground. It was in fact admitted at the argument in this Court that it was based upon alleged desertion.

It is true that a separation which begins with the abandonment of one party by the other may later be converted into a voluntary separation by agreement of both parties. (See the Campbell, Hahn, Ashman, Lloyd, Benson, cases, supra. In the Campbell case this rule was applied; in each of the others it was recognized, but was found not applicable.) On the other hand, a separation cannot, at the moment of its occurrence, constitute both an abandonment of one party by the other and a separation by mutual agreement. This was recognized in the first case to reach this Court under the voluntary separation clause of the present Sec. 33 of Article 16, which was Campbell v. Campbell, supra, in which the parties appear to have shifted their positions very considerably, but were found to have agreed to live separate and apart for at least nine years before the suit was filed. See also Miller v. Miller and Kline v. Kline, both cited above.

In Dotterweich v. Dotterweich, 174 Md. 697, 200 A. 523, the bill alleged, in the alternative, abandonment and voluntary separation. A decree granting a divorce on constructive desertion and abandonment was affirmed, without going into the matter of alleging these two alternative grounds.

In Nichols v. Nichols, supra, the fact that the wife had filed suit for divorce charging abandonment just two months after the separation was given great weight in holding that the separation was not by mutual agreement as claimed by the husband in his suit filed at the expiration of five years (the then statutory period). In that case it was noted that in the earlier suit the wife's application for alimony pendente lite had been denied, and that for some unexplained reason the case had not been pressed to a conclusion.

In the Hahn case, the Nichols case was referred to and the consistency of the wife's position, both in the bill in the suit which she brought and in the answer which she filed to her husband's suit, was pointed out. The Hahn case involved a different situation. In it, the wife first brought a suit charging abandonment. The husband resisted it on the ground that the separation had been voluntary, and the decision upheld his contention. The second suit was also brought by the wife, but it was based upon a separation by mutual agreement, which was just what the husband had asserted in the first case. The wife was held not to be estopped from maintaining the second suit. In the last case decided by this Court, bearing on this subject, Misner v. Misner, Md., 127 A.2d 547, a suit brought by the husband in another State, charging desertion, was held inconsistent with his suit in Maryland based upon alleged voluntary separation.

Taking the Hahn case as establishing the doctrine that a prior suit based upon alleged abandonment is not per se a bar to a suit by the same party alleging separation by mutual agreement, and bearing in mind the able and experienced Chancellor's opportunity to hear and observe the witnesses, we cannot say that he was clearly in error in finding that the separation was by mutual agreement.

This brings us to the second question, which is whether or not recrimination is available as a defense in a suit for divorce based upon voluntary separation. This question has not previously been decided by this Court. The doctrine of recrimination is firmly established in this State. Courson v. Courson, 208 Md. 171, 117 A.2d 850.

There is no doubt that the wife was guilty of adultery. Shortly after she and the appellant separated she went to live with another man, by whom she had a child born in January, 1954. Her claim for alimony in the previous suit came to an abrupt end when she admitted at the hearing that she was then pregnant with a child not her husband's. The testimony relating to the previous suit appears...