Hall v. Hall

Powers, J., by special assignment, delivered the opinion of the Court. This case provides a variation on the discordant matrimonial theme so often before this Court, in that the separation of the couple occurred some five thousand miles from Maryland in the now 50th State of Hawaii. The husband left the marital ¹⁹³ abode on August 12, 1958, during an argument and moved to other quarters, and neither has since made any effort to reconcile. On the same day he signed and filed a complaint against the wife for “separate maintenance” on the ground that she inflicted on him “* * * grievous mental suffering continued over a course of more than sixty days, which has rendered the life of Plaintiff burdensome and intolerable and their further living together insupportable.” The wife filed a cross-bill in that suit and a decree was passed by the Circuit Court, First Judicial Circuit, Territory of Hawaii, in favor of the wife, permitting her to live separate and apart from the husband for a period of not more than two years, granting her custody of their eighteen year old daughter, awarding $400.00 a month for her support and $100.00 a month for the support of the daughter, since emancipated.

The decree also divided certain personal property and awarded counsel fees. The case now before us on appeal began with the filing by the husband, now a resident of Maryland, of a bill of complaint for an absolute divorce on the ground of constructive desertion by the wife. A cross-bill was filed by the wife in which she asked for an absolute divorce from the husband claiming that he deserted her without cause. Both complaints were based on the separation in Hawaii.

After hearing testimony from both sides, the chancellor took the matter under advisement, and later suggested to counsel that the evidence did not support a divorce on the ground of either desertion or constructive desertion but would support a bill for voluntary separation. Over objection by wife’s counsel, the husband obtained leave and filed a supplemental bill on the ground of voluntary separation. The wife’s answer denied the voluntary separation and it was apparently agreed that the testimony already taken would be considered by the court in support of the supplemental bill. A decree of absolute divorce on the ground of voluntary separation was passed, the wife was awarded $300.00 a month alimony and her counsel allowed a fee of $1500.00.

This disposition satisfied neither party and both appealed. The wife argues that the husband should not have been granted ¹⁹⁴ a divorce on the ground of voluntary separation but she should have been awarded a divorce on the ground of his desertion. She further contends that full faith and credit should be given the Hawaiian decree both as to a finding of culpability on the part of the husband which would negative a subsequent claim of a voluntary separation, and to the award of $400.00 a month. At the same time she urges that conditions have changed and that she should be entitled to more than $400.00 a month for support.

The husband, on the other hand, contends that the divorce should have been granted to him on the ground of constructive desertion by the wife which would result in her not being entitled to any support. He further does not accede to the amount allowed to the wife’s counsel. Since we must give full faith and credit to the decree of the Hawaiian Court, under Title 28, §1738, U.S.C.A., 1 **IV,our consid ¹⁹⁵ eration oí the question of the correctness of the chancellor’s finding that the parties voluntarily agreed to separate, first leads to an examination of what the record in the earlier case reflects. Under the Uniform Judicial Notice of Foreign Law Act in effect in this State since 1939, reasonable notice of intent to offer evidence of the law in a territory of the United States must be given.

Code 1957, Article 35, § 47 et seq. In the absence of proof of the law of another jurisdiction it is presumed to be the same as the law of this State. Brown v. Fidelity & Dep. Co., 143 Md. 29 , 121 Atl. 920 (1923).

No notice of intention to rely on the law of the then Territory of Hawaii was given by either party to the other. Alimony may be granted in this State if the wife is entitled to a divorce. Wald v. Wald, 161 Md. 493, 502 , 159 Atl. 97 (1931), and many cases there cited. We conclude that the Hawaiian Court found that the separation occurring on August 12, 1958, involved culpability on the part of the husband, thus negativing the existence of voluntary separation.

Moreover, the allegations in the bill of complaint filed by the husband in that court do not suggest even a hint that there was a voluntary agreement to separate. Because of the requirement to give full faith and credit to the Hawaiian decree, implicit in which is that the wife had grounds for divorce, we find that a voluntary separation did not occur in August of 1958. Since in this State other grounds than desertion exist, we cannot properly find, in the absence of proof, that the wife was granted the Hawaiian decree for separate maintenance on the basis of her husband’s desertion. 2 ¹⁹⁶ Lacking proof as to the nature of the culpability of the husband we are unable to say that the wife should have been granted a divorce specifically on the ground of the husband’s desertion. This circumstance makes it necessary to remand the case for further proceedings on the sole question of the wife’s cross-bill for an absolute divorce