Hoffman v. Hoffman

Oppenheimer, J., delivered the opinion of the Court. In this divorce case, the question is whether the Chancellor erred in denying the appellant the alimony for which she asked. Jean M. Hoffman (the wife) filed her bill of complaint in the Circuit Court for Prince George’s County on October 22, 1964, praying for alimony and for support of the twelve-year old daughter; she did not ask for a divorce. The appellee, George E. Hoffman (the husband) filed a cross-bill, praying for a divorce a mensa et thoro based upon constructive desertion.

After a hearing on January 18, 1965, the Chancellor denied alimony and maintenance for the wife; denied the husband the divorce for which he asked; awarded custody of the parties’ daughter to the wife; and ordered the husband to pay to the wife $150 ¹²⁰ a month for the daughter’s support and maintenance. The husband has not appealed. In his oral opinion, the Chancellor stated that the wife’s allegations and proof as to her claim the husband had deserted her left the court “in a state of even balance” and therefore denied her the relief she requested. His finding was based, not on the credibility of the witnesses, but on the legal sufficiency of the evidence, and, in essence, was a conclusion of law.

The couple lived in an apartment in Hyattsville. In the last part of April or the first part of May, 1964, while the wife was absent, the husband left the home, taking part of his clothes, and moved to the home of his parents. The husband had left the home on at least three previous occasions; his last absence was for about a month, in January, 1963. Asked in pre-trial interrogation for the reasons leading to his departure in May, 1964, he answered: “I don’t recall, except that it was the usual daily bickering between us, the lack of affection on her part.” At the trial, the husband testified that the marriage had been “stormy”; he and his wife argued about everything; she was suspicious and complaining and a fanatical house-cleaner.

He said his wife became “highly inflamed if you walked across her waxed floor or in the kitchen with shoes on.” She did not want him to take a shower, because the shower caused the tiles to sweat. He admitted that, in the previous separations it was the wife who asked for a reconciliation. The wife testified, without contradiction, that she still wanted her husband to come back and live with her. It is uncontradicted that, on three occasions in the fall of 1964, after the filing of the wife’s bill of complaint, the parties had sexual intercourse.

The last occasion was in August, some months before the trial. The husband testified that, on each of these occasions, it was the wife who initiated the cohabitation. After the separation, he sent the wife some support money and relinquished the use of their automobile to her. The wife’s father testified that, after the separation, at his daughter’s request, he called the husband on the telephone in the fall of 1964, and asked him about the separation and whether there was any chance of reconciliation.

The husband replied “absolutely not.” The husband’s sister testified on his behalf; ¹²¹ she admitted that in July, 1964, while she was in the hospital, the wife visited her and asked her to help in any way she could, to influence her husband “in any way, direct him back to his home.” When separate maintenance or permanent alimony is sought, the evidence must be such as would entitle the wife to a divorce had she asked for that relief. Leonhard v. Leonhard, 238 Md. 489, 491 , 209 A. 2d 602 (1965) and cases therein cited. Had the wife prayed for a divorce a mensa et thoro, she would have had to prove the end of cohabitation and intention to desert. Code (1957) Art. 16, Section 25, Canoles v. Canoles, 236 Md. 40, 41 , 202 A. 2d 343 (1964); Thurlow v. Thurlow, 212 Md. 222, 228 , 129 A. 2d 170 (1957).

These two elements need not necessarily be identical in their commencement. Thurlow v. Thurlow, supra. Under Maryland Rule S75, a final decree of divorce shall not be passed upon the testimony of the plaintiff alone, nor shall the admissions of a defendant in an action for divorce be taken of themselves as conclusive proof of the facts charged, but in all cases testimony of a person not a party in corroboration of the plaintiff shall be required. Under the rule, the admissions of the defendant spouse cannot furnish the necessary corroboration of the