Nolte v. Nolte

Horney, J., delivered the opinion of the Court. ³³⁰ In this divorce action we are called upon to decide whether the testimony of the husband, as to there having been a mutual and voluntary agreement between him and his wife to live separate and apart, was sufficiently corroborated by the colloquy in a collateral proceeding between the judge and the husband and wife to satisfy the requirements of Maryland Rule S75. When the wife (Winifred Jessie Nolte) filed a bill of complaint in the Circuit Court for Baltimore County, alleging desertion and adultery and praying for an absolute divorce as well as custody of the children, alimony and counsel fees, the husband (Francis Edward Nolte, Jr.) denied the allegations in the original bill and filed a cross-bill for an absolute divorce alleging desertion and their voluntary separation without cohabitation for more than eighteen months. In her answer to the cross-bill, the wife denied the charge of desertion and the alleged voluntary nature of the separation. At the divorce hearing before the chancellor (Turnbull, J.), the wife testified as to her charges against the husband, as did several other witnesses in corroboration thereof, but the chancellor found that those charges were not supported by the evidence and dismissed the original bill, from which, apparently, no appeal was taken.

Prior to the filing of this divorce action, the parties had been involved in another proceeding in the Circuit Court for Harford County (Day, J.), in which the husband sought to recover possession of his clothing that the wife had taken and refused to return to him. The transcript of that collateral proceeding was not made a part of the record in this case, but counsel for the husband, in an effort to establish that the parties had agreed to live separate and apart from each other, cross-examined the wife with respect thereto. The result was as follows: “Q. Do you recall a hearing that was had before Judge Day on May 1st, 1964? A. Yes, sir. “Q. And that was a hearing that was instigated by [your husband] because you had taken his clothing and hidden it from him, isn’t that right?

A. What he had at the house, yes. “Q. And at that hearing—I am reading from * * * ³³¹ the transcript of the record, and I want you to tell me whether or not this is what Judge Day said—‘All right. Let the rights of Nolte, Francis Nolte, the fact that said Francis Nolte is leaving the home which up to this point and time has been occupied by Francis Nolte and his wife shall not prejudice in any way the rights of Francis Nolte or his wife as far as their rights under the present proceedings or any of the proceedings which may be instituted hereafter affecting their marital status.’ Didn’t Judge Day say that? A. I wouldn’t know. I don’t know anything about that. “Q. Judge Day did order you to return his clorhing to him?

A. Yes. “Q. Judge Day did say it was all right for him to move from the house, did he not ? A. Yes, sir. “Q. That was agreeable to you, was it not? A. Oh, yes. “Q. You were satisfied with that? * * * It was agreeable to you for him to leave the house? A. Yes. “Q. And he did in fact leave the house that same day, did he not?

A. Yes. “O. And you returned his clothing to him? A. Yes, sir. “Q. And he hasn’t been back since, has he? A. No, sir. “Q. There’s been no cohabitation between you since then ? A. I haven’t seen him except * * * in town.” Prior to this, on direct examination by her counsel on the original bill, the wife, in reply to a question as to whether it was true that she and her husband had voluntarily agreed to separate, stated that it was not.

On the cross-bill, only the husband testified and no witnesses were offered to corroborate him. Nor was there any evidence showing that the separation was beyond a reasonable expectation of reconciliation. His testimony was to the effect that it was agreed between Judge Day and his wife and himself that ³³² he was to leave the marital home; that his leaving was agreeable and acceptable to his wife; that he actually left the house; and