Zell v. Zell, 412
| Decision Date | 04 August 1971 |
| Docket Number | No. 412,412 |
| Citation | 280 A.2d 22,12 Md.App. 563 |
| Parties | Virginia Ellis ZELL. v. James Ernest ZELL. |
| Court | Court of Special Appeals of Maryland |
Francis X. Gaegler, Jr., Lanham, for appellant.
C. Jefferson Dotson, Mt. Rainier, for appellee.
Argued before MURPHY, C. J., and MORTON and MOYLAN, JJ.
This is an appeal by the wife from a decree entered in the Circuit Court for Prince George's County granting the husband a divorce a vinculo matrimonii and awarding the custody of the two minor sons of the parties to the husband and the two minor daughters to the wife with a provision that the husband pay the wife $20 per week for each of the children awarded to her custody.
The husband's suit for an absolute divorce on the ground of voluntary separation (Md.Code, Art. 16, § 24) and the wife's petition to increase support for the children were consolidated. At the conclusion of the hearing, the Chancellor permitted the husband to amend his bill of complaint to include the ground of adultery by the wife. In this appeal it is contended that the husband's motion to amend was the result of the Chancellor's suggestion and that, under the circumstances, the Chancellor erred in granting the motion to amend. We disagree.
Md.Rule 320 c 1 provides:
'In a case heard or tried before the court without a jury, any amendment may be made at any time before a final judgment or decree is entered.'
Md.Rule 320 d 1 (b) provides:
Aside from the Rule, it is well established in this State that amendments should be freely allowed to serve the ends of justice and may properly be suggested by the court in the interest of justice. The allowance or disallowance of the amendment is within the sound discretion of the trial judge and no appeal will lie from the allowance or disallowance unless it is demonstrated that there has been an abuse of discretion. See Baer v. Baer, 252 Md. 586, 250 A.2d 897, and cases cited therein.
We find no abuse of the Chancellor's discretion on the record before us. The issue of the wife's adultery, as well as the husband's, arose during the course of the hearing and there was evidence from which the Chancellor could find that the wife had committed adultery. We see nothing improper in the fact that the motion to amend may have been made pursuant to a suggestion of the Chancellor. It is true that the amendment was permitted after all the evidence was in but the wife did not claim surprise or seek a continuance. In fact, she was aware of the charge of adultery and vigorously contested it throughout the entire hearing.
It is next contended that since there was proof of the husband's adultery the doctrine of recrimination prevented the Chancellor from awarding him a divorce a vinculo matrimonii on the ground of the wife's adultery. It appears that in 1968 the husband obtained a decree of civorce from the wife in the State of Georgia. Prior to his departure for Georgia, the husband had the wife execute 'a waiver of appearance in the State of Georgia', although the wife asserts that she had no knowledge of its significance. after obtaining his Georgia decree, the husband married another woman in the State of Virginia and since then they have continued to live together in Maryland as husband and wife. The husband at the hearing below readily acknowledged that he was not a resident of Georgia at the time of obtaining the divorce decree and that other than a visit to a lawyer's office for a few hours where he signed a petition for divorce, he had never participated in any court proceedings in that State. The Chancellor below found, and we cannot disagree, that the Georgia divorce decree was 'null and void.' See Pelle v. Pelle, 229 Md. 160, 182 A.2d 37; Sanders v. Sanders, Md.App., 278 A.2d 615 (filed June 29, 1971).
It is entirely possible, as argued by appellant, that the Chancellor did base his decree upon the wife's adultery and if there were no other evidence in the case than the wife's adultery as a ground for divorce, we would be compelled to set aside the decree under the doctrine of recrimination because of the proof of the...
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