Holofcener v. Holofcener

⁷²⁸ Per Curiam. This is an appeal by Michael G. Holofcener from a decree of divorce a vinculo matrimonii awarded to his wife, Ruth G. Holofcener. In July 1964 the wife filed a bill of complaint for divorce a mensa et thoro on the ground of constructive desertion. In October of the same year the parties signed a voluntary separation agreement which also covered property rights and child custody.

Three months after the agreement was signed, the wife filed a petition for leave to file a supplemental bill of complaint in which she alleged adultery on the part of her husband. In her petition no- mention was made of the separation agreement which had been entered into since the filing of the original bill of complaint. The order allowing her to file the supplemental bill was signed in due course. A hearing was held in open court in April 1965 and the chancellor found that the husband had been guilty of adultery since the filing of the original bill, and consequently granted an absolute divorce in the wife’s favor.

The correctness of the chancellor’s finding of adultery is not seriously challenged, but the appellant raises two legal questions: (1) While the parties were living separate and apart pursuant to the terms of a voluntary separation agreement, may one party to the agreement seek a divorce on the culpatory ground of adultery, if that adultery was committed and the divorce proceeding based thereon is concluded, prior to the expiration of the eighteen months period required to ripen the voluntary separation into a ground for absolute divorce; and (2) by not mentioning the intervening separation agreement did appellee’s petition for leave to- file a supplemental bill of complaint fail to disclose a material fact to the court. In regard to the first question presented, the appellant’s contentions are: (a) That by signing the separation agreement the wife purposefully lulled him into a “sense of security” so that evidence could be more readily procured against him; and (b) that the Legislature, by adding voluntary separation for a prescribed statutory period as a ground for absolute divorce (see Code (1957, 1965 Cum. Supp.), Article 16, Section 24, Clause 5) intended that this ground be used, if available, rather than ⁷²⁹ the culpatory ground of