Patzschke v. Patzschke

• Decision Date: 16 February 1968
• Docket Number: No. 89,89
• Citation: 249 Md. 53,238 A.2d 119
• Parties: Joan Jewell PATZSCHKE v. Frederick T. PATZSCHKE.
• Court: Maryland Court of Appeals

Page 53

249 Md. 53

238 A.2d 119

Joan Jewell PATZSCHKE v. Frederick T. PATZSCHKE.

No. 89.

Court of Appeals of Maryland.

Feb. 16, 1968.

Bernard J. Sachs and Philip H. Goodman, Baltimore (Goodman, Meagher & Enoch, Baltimore, on the brief), for appellant.

George W. Della, Baltimore (Hyman Ginsberg and Ginsberg & Ginsberg, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

FINAN, Judge.

The original bill in this case was filed by the wife, appellant (plaintiff-cross-defendant below), on August 5, 1966, charging the appellee, husband (defendant and cross complainant below), with the constructive desertion of the wife on or about July 28, 1966, eight days before the bill of complaint was filed. The husband filed a cross bill on September 2, 1966 charging adultery on the part of the wife. The court below denied the wife's bill for a divorce a mensa et thoro and granted the husband a divorce a vinculo matrimonii as prayed in his cross bill. It is from this decree that the wife appeals.

The parties were married in February of 1959. Two children were born of the marriage, being four and six years of age at the time this action was brought. The wife has an older son by a previous marriage.

The parties apparently enjoyed a normal marital relationship until approximately two months prior to the wife's filing of her bill for divorce. The wife was active in lodge work and cub scouts and enjoyed bowling with a women's bowling club, all of which consumed many evenings away from home, frequently until 12:00, 1:00 and 2:00 in the morning. Early in 1966 the husband noticed that on the occasion of one of the wife's bowling nights, her diaphragm was missing from the cupboard where she usually kept it. She returned that night about 2:30 a.m., at which time he proposed they have sexual relations to which she demurred and immediately fell asleep. The same sequence of events transpired the following night. This development marks the deterioration point in their marital bliss; the husband's suspicions of the wife having been aroused, from thenceforth he checked the speedometer reading on the car when she left and returned and made more searching inquiries as to her activities.

The wife contends that the husband had always been indifferent to her, the home and the children, although the testimony shows that each week he turned over his weekly pay check of some $220 to her, retaining only $10 a week for himself. Furthermore they were financing the purchase of a.$19,000 home and the husband had had several thousand dollars of improvements made during their occupancy.

He was certainly not a model husband, however up until the last two months they lived together, the testimony creates the image of an ordinary husband, a young father, confronted with normal problems of earning a livelihood, who is doing his best to provide a good home for his family. The testimony of the wife reveals that two months before the events occurred which forced her to leave the home, the marriage began to fall apart at the seams. She contends the husband repeatedly struck her, used foul language toward her, on occasions drank heavily, became a man of violent temper, was continually argumentative and began staying home from work.

The wife's testimony as to the husband's intemperate conduct received some corroboration from the testimony of the wife's mother, whose version cannot be viewed without taking into consideration the nattural prejudice she would harbor in favor of her daughter. The testimony concerning the husband's misconduct was confined to the two months preceding the separation and, insofar as the mother-in-law's testimony is concerned, it actually referred to only three different occasions, one when the husband was leaning on the daughter when she was down, and she had to pound him on the back to make him get up. On another occasion she saw the husband twist her daughter's arm and choke her, and on the night of July 27 the husband climaxed his growing resentment with strange and bizarre conduct, which allegedly included violence toward the wife.

The night of July 27 and the morning of the 28th deserve special comment. On this occasion the husband, according to the wife, seemed to alternate between periods of dazed stupefaction and rage. He pulled the wife out of bed and allegedly threatened suicide, threatened to kill the wife and the children, drank whiskey, complained about bills, talked about how rich the wife would be from his insurance after he destroyed himself, threw himself down and rolled on the floor until tranquilizers were administered. On this occasion the police were called to the home by the wife, but left after talking to the husband, who informed them that all that had occurred was a domestic quarrel. It should be noted that the police were not called as witnesses although most assuredly they would have had some report of the incident, if it had been as violent as depicted by the wife. The wife also complained of the influence that a Mr. Lumpkin had upon her husband. She cast him in the role of a Svengali, a brilliant man, usually to be found in a nearby drug store, who was psychoanalyzing her husband and convinced him he was a 'scapegoat child' and a victim of the wife's machinations, who cast suspicion on the wife and on occasion administered tranquilizers to the husband.

A neighbor lady, Mrs. Jones, a friend of the wife's, also testified to seeing bruises on the wife on one occasion and also as to the husband's growing indifference, but her testimony should be characterized as restrained.

The husband, who testified that his mother-in-law drank considerably, categorically denied that he had ever inflicted any physical violence on the wife. The husband's uncle, who was a frequent visitor to the home and who had assisted the parties financially, including giving the wife a new kitchen floor for her birthday, described the husband as a man who never let his children want for anything. He was not aware of any difficulties between his nephew and the wife, and the wife had never complained to him of the husband's conduct.

On the morning of July 28, 1966 the wife took the children and left the home going to her former mother-in-law's.

The lower court dismissed the wife's bill of complaint, and in our opinion was correct in so doing. See discussion in Murphy v. Murphy, Md., 237 A.2d 523 (1967).

The testimony given in support of the husband's cross bill is the only matter in this case which gives us concern. The testimony is virtually without contradiction that the wife followed a pattern of frequently leaving the husband and the children at home and traveling about at night to lodge meetings and to bowl and that she usually returned between midnight and 2:00 a.m. It is uncontradicted that the speedometer on occasions showed 50 miles to have been put on the car during the evenings she used it. Although the wife took the witness stand she made no attempt to explain or clarify the rather significant accusation by the husband's testimony concerning the missing diaphragm.

However, it is the testimony of the two private detectives whom the husband employed to follow the wife, after she had left on July 28, 1966, to which we must pay particular attention.

The testimony of the detectives, which laid the foundation of an adulterous disposition on the part of the wife, consisted of the observation of the wife's visits to taverns with a male companion, whose name is unknown, and who is described as being between 30-35 years of age, 5 feet 8 inches to 5 feet 10 inches tall and weighing 170-180 pounds. On August 13, 1966 the wife was observed visiting the Bay Tavern with this man traveling in her brother's white Pontiac Grand Prix. At 11:40 p.m. the couple left the Bay Tavern and the detectives lost them in traffic. However, the detectives then waited at the residence at 1517 Filbert Street where Mrs. Patzschke was residing, and the Pontiac Grand Prix had not returned when the detectives stopped surveillance at 12:40 a.m. On August 26, the detectives observed the wife in the companionship of the same man riding in a white Cadillac driven by the wife on Patapsco Avenue. They were observed kissing in the car while it stopped for a traffic light. They later got out of the car on Hanover Street and walked hand in hand to the Bolero Bar. Later, they drove to Friedman's Bar and parked on the parking lot for some time and were observed embracing and kissing. Several persons leaving the bar passed the car while this was going on. On Patapsco Avenue they stopped briefly at the top of a hill and kissed again, then continued on. The detectives lost them in traffic; however, the detectives...