Hornstein v. Hornstein

Markell, J., delivered the opinion of the Court. This is an appeal from a decree granting plaintiff a divorce a mensa on the ground of desertion and in effect refusing defendant a divorce on that ground on his cross-bill. There is also a second appeal from a later decree modifying the original decree with respect to alimony. The case was tried in open court before Judge Digges, who filed a full and careful opinion, holding that plaintiff was originally guilty of desertion but that afterwards she made a bona-fide offer of reconciliation, which defendant rejected and that thereby defendant became guilty of desertion.

This marriage was handicapped from the beginning by differences in nationality and language, by a nervous or emotional temperament on the part of the wife and by quarrelsome dispositions on the part of both. Plaintiff is a citizen of Italy, defendant an American. Subjects of argument between them ranged from the question whether the husband cared more for the dog than he did for his wife’s little sister to the proper pronunciation of “Adeste, fideles”, found on a Christmas card. The latter question may perhaps have involved long-standing differences between English, Continental and American pronunciation of Latin words.

Whatever it involved, it approaches the ultimate in triviality as a subject of con ⁶³⁶ troversy between husband and wife. A common interest in Shakespeare was insufficient to bridge the gulf between them, but only furnished an occasion — or a pretext — for separation. This is peculiarly a case in which due weight should be given to the findings of the judge who saw and heard the witnesses and observed their demeanor in connection with their sometimes conflicting testimony. Defendant in his brief says, “We believe that the law was thoroughly understood and well stated by the learned chancellor below, but we most respectfully submit that the chancellor erred in applying that law to the facts and must have misconstrued or misunderstood the witnesses when testifying.

The verbosity of the witnesses might well have caused the learned chancellor to reach this erroneous conclusion.” We agree with defendant that the opinion below accurately states the law (at least from defendant’s point of view) and applies it to the facts as the court understood them. If, however, the court misconstrued or misunderstood the witnesses when testifying, it is our duty to say so and to correct any such error. The scope of our review should practically be limited to the question whether the court did misconstrue or misunderstand the witnesses. In the circumstances, it seems unnecessary to repeat or summarize the statement of facts.

We shall request the Reporter to set out Judge Digges’ opinion in the statement of the case. If we were to review the case de novo, regardless of the decision and the opinion below, we might hesitate to find that plaintiff was originally guilty of desertion. It is true her testimony that her husband threatened to treat her as Othello treated Desdemona is uncorroborated, but the husband’s denial is also uncorroborated. Even if he never intended to carry out such a threat, he may have made it in the hope that she would take it seriously enough to give him plausible ground for charging desertion.

His subsequent conduct is not inconsistent with this possibility. Moreover, it is questionable whether ⁶³⁷ her conduct in any aspect amounted to desertion. She left the common home for a few days or weeks and then returned voluntarily. When she returned, he had left, he says on a visit.

When he learned that she had returned he did not return and never has done so. It seems questionable whether her conduct shows an intention to terminate the marriage relation. Flohr v. Flohr, 195 Md. 482 , 73 A. 2d 874 . Giving him back her