Buchholtz v. Buchholtz

Brune, C. J., delivered the opinion of the Court. This is an appeal by a wife from a decree of the Circuit Court for Allegany County which awarded her husband a divorce a mensa et thoro on the ground of abandonment. The decree also awarded to the wife custody of the two minor children of the parties, both boys, now aged respectively about nine and seven years, and provided for payments by the husband for their support and for rights of visitation. The husband took no cross-appeal but seeks in this Court to attack the award of custody to the wife.

The decree contained other provisions determining the ownership of personal property, and neither party complains of those provisions. The parties were married in 1952, and their married life appears to have been free of serious discord for some years, though there was one incident in 1955 or 1956 when the husband struck the wife. More important causes of the trouble which subsequently developed between them were that the husband kept rubbing in the fact that the home in which the parties lived did not belong to the wife at all, but to his parents, who appear not to have been on the best of terms with the wife. On the other side, the husband was deeply offended when the wife had him haled into the Juvenile Court on a charge of failure to support the children.

Both parties were gainfully employed, and to a large extent the children were taken care of by a housekeeper. There were some disagreements over financial matters and religious differences also contributed to discord. Relations between the parties became very strained, marital relations ceased, and after discussing their problems and ³⁷⁶ differences they met at the office of the husband’s lawyer on October 3, 1962, and discussed a separation agreement. This episode will be more fully referred to below.

The day following that visit the wife actually left what had been the marital domicile, took the children and most of the furniture with her and went to live elsewhere. She also took with her the husband’s wedding ring which he had taken off and had left in rather plain view on the kitchen windowsill. He explained this by saying that he noticed that his wife was not wearing her wedding bands, though he did not know what she had done with them. The following day the husband filed this suit.

The Chancellor pointed out in his opinion that “[T]he case is remarkably free from any conflict in the testimony.” The case is largely one of the interpretation to be placed upon facts as to which there is virtually no dispute, rather than one of credibility of the witnesses. The key to the case is, we think, to be found in the conference at the office of the husband’s counsel on October 3, 1962, and in the events of the subsequent two days. With regard to some of the events that preceded and led up to that conference, the husband testified that after his wife had him brought before the Juvenile Court he “sort of lost all interest in her for doing such a thing; and from that time on things were getting a lot worse than getting better.” He further admitted that he had left her bedroom, but said that he didn’t do it until the wife was taking the boys from him on the week-end. He claims that various small articles were missing from the home, that the boys’ toys, bicycles and electric trains “were gone,” that he talked to his wife about them and that she told him that it was none of his business.

He further claims that he heard her state over the telephone to her brother that all her plans had been made and that she was thinking only of herself. “So,” he testified, “I assumed that maybe she was going to take everything out of the home.” He further states that this was why he went to see his counsel, Mr. Ryan. Whether or not this account was in any way influenced by hindsight, the fact is that Mr. Ryan wrote Mrs. Buchholtz a letter asking her to come in to see him. Mr. Ryan stated (though he did not testify) that his purpose was to seek to ³⁷⁷ effect a reconciliation. On October 3, 1962, Mr. Buchholtz, according to his own testimony on cross-examination, was at Mr. Ryan’s office, but did not know that his “wife was going to be there that exact day, but she came in and, of course, we were arguing back and forth in front of Mr. Ryan there and Mr. Ryan made the statement a couple times that we weren’t getting anyplace.” The husband’s testimony continues: “As a matter of fact, we weren’t, and he [Mr. Ryan] said something about a separation.

He asked me, ‘Do you think that a separation would be in order?’ and I made the remark, I said, that we had seemed to try everything else so I said a separation is in order. That was on October