Zink v. Zink, 105

• Decision Date: 23 December 1957
• Docket Number: No. 105,105
• Citation: 137 A.2d 139,215 Md. 197
• Parties: Isaac H. ZINK, Jr. v. Elsie E. ZINK.
• Court: Maryland Court of Appeals

Page 197

215 Md. 197

137 A.2d 139

Isaac H. ZINK, Jr. v. Elsie E. ZINK.

No. 105.

Court of Appeals of Maryland.

Dec. 23, 1957.

Dissenging Opinion Dec. 27, 1957.

John J. O'Connor, Jr., Baltimore, for appellant.

Marvin Braiterman, Baltimore, for appellee.

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

HAMMOND, Judge.

The husband appeals from a decree that granted his wife a divorce a vinculo and adopted a settlement between the parties as to alimony and property rights.

The husband's claim is that there was not sufficient corroboration of his wife's testimony to justify the awarding of the divorce. The parties were married in 1933. No children were born of the marriage. The wife charged that the husband had abandoned her for the statutory period by refusing and continuing to refuse marital cohabitation. A second allegation was that in 1946 or 1947 the husband committed adultery and that, subsequently, the wife 'condoned and conditionally forgave' him for his misconduct upon his representation and promise that he would thereafter fulfil all of his marital obligations, but that he has failed to do so and, instead, deserted and abandoned her, as first charged, thereby reviving the adultery. The husband denied the desertion. He admitted the adultery but denied that the condonation was conditional, saying that his wife forgave him absolutely.

The record in the case shows that as the trial was about to begin, the court ordered a recess and after discussion between counsel and their clients, the matter went to trial on the sole question of desertion. The wife testified, and produced a niece as a corroborating witness. No other testimony was offered by the wife, and the husband made no objection to the testimony and did not cross-examine the witnesses nor himself offer any evidence. At the conclusion of the testimony, a stipulation, which apparently had been agreed upon that morning, was read into the record as to the amount of alimony the husband was to pay and the disposition of the bank and building association accounts and real estate belonging to the couple.

The wife's testimony was that beginning in 1950 the husband had told her that he was tired of her, had no more feeling for her, and that since then he had continuously refused to have sixual relations despite her efforts to woo him. She said that they had continued to occupy the same bedroom until December, 1955, when, discouraged by five years of consistent rebuffs, she began to sleep in a separate bedroom. Her niece testified that she knew the couple were not getting alon because 'my aunt told me'. She said that her aunt told her that they had not been 'man and wife since 1650'. She was asked whether the husband was present when her aunt told her that they were not living together as man and wife, and her answer was simply 'Yes'. She said that she thought that her aunt tried 'everything' to effect reconciliation with the husband. She testified further that since 1955 she knew that the couple had occupied separate bedrooms because she had helped her aunt to make up the beds.

The chancellor found that the wife's testimony that the parties occupied separate sleeping quarters and did not live together as man and wife had been corroborated and that she was entitled to a divorce a vinculo.

We find ourselves unable to agree with the chancellor. Of course, permanent and irrevocable refusal, without justification of one spouse to have marital relations with the other constitutes abandonment, but there must be corroboration of the essential elements of such an abandonment. It is true that it has often been stated by this Court that in a contested case, slight corroboration is sufficient if the facts preclude the possibility of collusion. Hodges v. Hodges, 213 Md. 322, 325, 131A.2d 703. The record here scarcely permits any inference other than that during the recess at the beginning of the trial, agreement was reached that if the evidence was limited to the matter of desertion and the question of adultery not gone into, and the settlement as to alimony and property rights was made part of the decree, the husband would not offer any contest. This being so, the case must be treated as one where there is possibility of collusion and the degree of corroboration required must rise proportionately. Kelsey v. Kelsey, 186 Md. 324, 328, 46 A.2d 627.

The niece's testimony that the wife had told her, out of husband's presence, that the couple had not been living together as man and wife since 1950 was hearsay and would not have been admissible over objection. Misner v. Misner, 211 Md. 398, 404, 127 A.2d 547. In Bowersox v. Bowersox, 157 Md. 476, 146 A. 266, 65 A.L.R. 165 it was held that in an uncontested case where there was the possibility of collusion, hearsay testimony, although not objected to, could not be received as sufficient corroboration, although it was noted that in contested divorce litigation, evidence admitted without objection, if it has any probative force, may be accepted for what it is worth. In the case before us we think the echoing by the niece of the self serving statements of her aunt as to the existence of the grounds the aunt relies on to obtain the divorce had not sufficient probative force or worth, standing alone, to serve as corroboration. Of probative value, because inherently more reliable and convicing, was the testimony of the physicians in Kelsey v. Kelsey, 186 Md. 324, 46 A.2d 627, supra, and Brennecke v. Brennecke, 213 Md. 447, 132 A.2d 106, whose professional questions as to the cause of the wives' physical deterioration were answered by statements as to the sexual desertion by the husband. That the couple for a time occupied separate bedrooms is, of itself, not decisive. Mower v. Mower, 209 Md. 413, 121 A.2d 185. In any event this had been so for only a few months before the trial, not eighteen months.

The chancellor seemingly relied most on the niece's statement that the husband had been present on occasions when the aunt had told her that they were not living together as man and wife, treating this as an admission by the husband of the truth of the statement. It has been held that in a contested case, where the possibility of collusion is slight, evidence of corroboration may be found in the admission of the other spouse. Brennecke v. Brennecke, supra; Cullotta v. Cullotta, 193 Md. 374, 382, 66 A.2d 919; Maranto v. Maranto, 192 Md. 214, 217, 64 A.2d 144. Where a party to an action adopts a statement uttered by another, it becomes his own admission. In some situations standing mute may constitute the adoption of the statement of another person. This can be only when no other explanation is equally consistent with silence-- i.e., if the situation and circumstances are such that a dissent in ordinary experience would have been expressed if the statement or communication had not been correct. 4 Wigmore, Evidence (3d ed.), Secs. 1069 and 1071. McCormick, Evidence, Sec. 247 at 528, 530, discusses the rule and says: 'If a statement is made by another person in the presence of a party to the action, containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true and his conduct is thus receivable against him as an admission of such belief.' He points out that a failure to deny may be more naturally explainable on some inference other than that of belief in the truth of the inference and that the evidence is then to be excluded. If an admission by silence is to be received against the silent party, it must be found (1) that the statement was actually made; (2) that the reaction of silence or evasion took place as claimed; (3) that the party heard and understood the statement; and (4) that under all the circumstances the party's conduct makes it probable that he believed the statement to be true.

We note that the niece testified only that the statement had been made in...