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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 944 SEPTEMBER TERM, 1996 ___________________________________

ELLIOTT BARTON ARONSON v. YUDITA FALK ARONSON ___________________________________ Moylan, Cathell, Hollander, JJ. ___________________________________ Opinion by Hollander, J. ___________________________________ Filed: April 2, 1997

This contentious divorce case is perhaps best summarized by two maxims: "more haste, less speed" and "hindsight is 20/20." As

we look back, it is evident to us that the parties prematurely proceeded to trial. Our decision to vacate the judgment of divorce

is an unfortunate but unavoidable consequence of the proverbial "rush to judgment." Yudita Falk Aronson, appellee, filed suit against Elliott Barton Aronson, appellant, seeking a divorce on the grounds of adultery and a two year separation.1 When the trial commenced on

December 14, 1995 on those grounds, the parties had only lived separate and apart for twenty-two and a half months. wife had condoned the adultery in issue. Moreover, the

Thus, the two year

separation ground was not quite ripe, and there was reason to believe that the adultery would not withstand a challenge. Under

these circumstances, it is particularly noteworthy that the parties had not agreed in advance of trial to an amendment on the ground of a one year voluntary separation. Further, their separation

agreement did not suggest that both parties wanted to end the marriage. Nevertheless, with only a few weeks remaining to achieve

the unassailable two year ground, trial commenced in the Circuit Court for Baltimore County. At trial, over the husband's vigorous objection, the court permitted appellee to amend her complaint to include a claim for We note that the parties have had several different lawyers. Counsel for appellee at trial was not the attorney who filed the complaint.
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divorce based on a one year voluntary separation. court granted appellee an absolute divorce

Ultimately, the on that ground.

Subsequently, the court found appellant in contempt for failure to pay child support and sentenced him to the Baltimore County

Detention Center, setting a purge amount of $11,900.00. Appellant appeals from the court's judgment of divorce and from the contempt finding. our review: I. Did the court err in granting the wife an absolute divorce on the grounds of a one-year mutual and voluntary separation? II. Did the court err in admitting into evidence and allowing cross-examination of [the] husband on settlement discussions and a document prepared by [the] husband's lawyer for settlement purposes? III. Did the court err in sentencing [the] husband to jail for civil contempt with a purge provision where the court refused to take, consider and even mark for identification evidence concerning [the] husband's ability to pay? In her brief, appellee frames the following issue, which we have reworded slightly: Regardless of the parties' mutual and voluntary separation, was appellee entitled to a divorce on the ground of adultery, because condonation is not an absolute bar? We are of the view that the trial court erroneously granted a judgment of divorce on the ground of a one year voluntary He presents the following questions for

separation; the proof was insufficient to establish the element of mutual intent to end the marriage. Further, the court erred in

concluding that condonation is an absolute bar to a divorce on the -2-

ground of adultery.

Therefore, we shall vacate the judgment of As the court did not in the contempt

divorce and remand for further proceedings. preclude appellant from offering

evidence

proceeding, we shall affirm the contempt order.

In light of our

holdings, we decline to address appellant's second issue. Factual Summary The parties were married on November 29, 1981 and have two minor daughters. Mr. Aronson was the founder and part owner of

Ecu-Med, Inc., doing business as Aronson Medical & Respiratory Services ("Aronson Medical"). Plus, a travel business. In December 1992, appellee discovered that appellant was involved in an adulterous relationship with Ms. Stella Natarova,2 one of his employees. When appellee confronted appellant, he The parties did not then separate; Ms. Aronson is the owner of Cruises

admitted to the adultery.

instead they engaged in discussions, lasting several months, about the future of their marriage. On or about April 1, 1993, appellee

agreed to condone her husband's adultery on the condition that he not have any future contact with Ms. Natarova, and that he dismiss his paramour from employment; appellant agreed. In June 1993, appellee discovered some checks, issued by Aronson Medical and made payable to Ms. Natarova, in appellant's briefcase. When she confronted appellant, he stated that the

2

In the transcript, the name is also spelled "Natrova." -3-

monies were part of a severance package. delivering the checks to Ms. Natarova,

He admitted personally but claimed that no

improprieties occurred during his contacts with her.

Nevertheless,

appellee no longer considered the parties as husband and wife. Although the parties continued to reside together in the family home, they ceased any sexual relations at that time. In September 1993, appellee learned that appellant had

purchased a condominium unit in Baltimore City.

She waited for two

weeks before confronting appellant about the purchase; during that time, appellant never acknowledged having purchased the

condominium.

Consequently, appellee retained counsel but continued

to reside in the marital home. On January 31, 1994, the parties entered into a written separation agreement (the "Agreement"). Aronson left the marital home. together since that time. part, as follows: WHEREAS, in consequence of current differences between Husband and Wife, Wife and Husband have agreed that Wife and the two Minor Children shall move from the family home. WHEREAS, the Husband does not wish to end the marriage, and having love for his Wife; and Husband and Wife both having love for the Minor Children; nevertheless, they have agreed to a trial separation, which does not constitute abandonment by either Husband or Wife. WHEREAS, the purpose of this separation is to give both parties time to think of their investment in marriage and seek professional counseling. -4It was then at that Ms.

The parties have not resided

The Agreement provided, in relevant

NOW, THEREFORE, in consideration of the promises and mutual covenants and understandings of each of the parties, the parties hereto covenant and agree as follows: 1. LENGTH OF TRIAL SEPARATION.

This Agreement shall govern the parties for a period of six (6) months. During this time, should the parties agree to reconcile, this Agreement is void. Reconciliation shall mean resumption of cohabitation. At the end of six (6) months, either Husband or Wife may ask the other for the right to reconcile. If either of the parties chooses not to reconcile, then all obligations under this Agreement herein cease. * * * * * 12. RELINQUISHMENT OF MARITAL RIGHTS.

The parties shall continue to live separate and apart, free from interference, authority and control of the other, as if each were sole and unmarried; and each may conduct, carry on or engage in any business, profession or employment that to him or her may seem advisable, without any control, restraint or interference by the other party in all respects as if each were unmarried. Neither of the parties shall molest or annoy the other or seek to compel the other to cohabit or dwell with him or her by any means whatsoever, or exert or demand any right to reside in the home of the other. * * * * * 26. COUNSELING.

This Agreement is entered into with the earnest hope of both parties that they will seek counseling. Husband will be responsible for any costs incurred by Wife for counseling that Husband's insurance does not pay. Each party shall have the right to choose his or her own counsellor, and all such counseling shall be confidential. Additionally, it would be strongly suggested that an occasional joint monthly meeting of the parties and a counselor of Wife's choice shall be held to discuss progress in reconciliation.

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(Emphasis added).3 On July 24, 1994, less than six months after the Agreement was executed, appellee filed a complaint for absolute divorce on the grounds of a two year separation and adultery. filed a counterclaim. Appellant never

In his answer, he denied that the parties At trial, the parties and Jeffrey

were beyond reconciliation.:

Pollack, the Certified Public Accountant for appellant and Aronson Medical, were the only witnesses. Mr. Pollack's testimony did not Rather, it dealt only

concern any of the grounds for the divorce. with Mr. Aronson's financial situation. Appellee testified about her

discovery

of

appellant's She

infidelity and her decision to condone it in April 1993.

believed that appellant had continued his relationship with Ms. Natarova, because he had "lied" about the checks. She said, "And

I think because he lied and kept it away from me there was something more than just severance pay only, because he didn't say the truth." Although appellee had "heard" that appellant was still

involved with Ms. Natarova after the separation, she acknowledged that she had no evidence that appellant had actually engaged in adultery after her condonation. Appellee also testified about her discovery of the condominium The Agreement also specified the custody and visitation arrangements for the parties' daughters. Further, it addressed appellant's obligations to pay bills, alimony, and child support, and to provide health and life insurance for the benefit of appellee and the children. These provisions are not in issue. -63

purchase. "good

Appellant told her he bought the unit because it was a After the confrontation about the condominium,

deal."

appellee said she "knew then that it's time . . . to see a, to go see a lawyer and it was time to call it quits." She further said

that after discussing the issue from September 1993 to January 1994, she and appellant agreed that she would move out of the house. As appellant agreed to the separation and did not object to

it, she considered the separation as "mutual and voluntary." Appellee called her husband as a witness. Appellant testified But

that appellee wanted a trial separation, to which he agreed.

he insisted that he never desired to end the marital relationship. Instead, he maintained that he agreed to separate, at appellee's request, to "ameliorate" the conflict, to give the parties a "cooling off period," and to let them seek counseling. following colloquy ensued: Counsel for appellee: Now, ultimately it was determined when you and Mrs. Aronson decided to separate, by the way, the decision to separate in January of '94, that was by agreement, correct, on a trial basis? Mr. Aronson: I only agreed that we should try the separation if we were really going to have it as a trial and a way, I encouraged, I even wrote in the agreement for her to seek therapy and I get some help and we make an effort to fix things. That was my understanding. Counsel for appellee: Mr. Aronson, my only question was, you agreed to a trial separation at that time, correct? Mr. Aronson: That's the answer. The

Counsel for appellee: Thank you. When the six month trial separation was over you wanted to renew it for an -7-

additional six month trial period, correct? Mr. Aronson: That is correct.

Counsel for appellee: Which would have been a separation by agreement for a 12 month period commencing in January of 1994, correct? Mr. Aronson: I don't know if six months was the right number, but some additional time. Counsel for appellee: Didn't you just say you wanted to renew it for six months? Mr. Aronson: No, you said six months. And you said yes? I meant I wanted to renew the

Counsel for appellee:

Mr. Aronson: I said yes. agreement in some form.

Counsel for appellee: Mrs. Aronson wanted the separation to become permanent correct? Mr. Aronson: No. That isn't true.

Counsel for appellee: But the separation has been permanent; is that right? Mr. Aronson: So far it's been permanent. And you --

Counsel for appellee:

Mr. Aronson: Nothing, there is nothing that is irreconcilable about our marriage and/or our separation. Unfortunately this entire circus with courts and lawyers and everything, it just, it tears down any possibility to fix or repair anything. And for two years we have been imbedded in nothing but a circus of lawyers, frankly. In view of appellant's acknowledgement that he had agreed to the trial separation in January 1994 and had wanted to renew it for an additional period of time, the court permitted appellee to amend her complaint to include the ground of a one year voluntary

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separation.4

The following exchange is relevant.

The Court: Do you want to renew your motion to amend your bill of complaint? Counsel for appellee: I do, Your Honor.

The Court: Now, what's your position in regard to that, in view of what your client just said? Counsel for appellant: My client's position all along in this case has been he does not want to get divorced, he was willing to try a separation. He has always been bent on - his opinion is that the separation, he has agreed to a separation only from the point of view, that of trying to work things out with his wife. That is different than separating with a mutual intent to end the marriage. It is not the same thing. His position is that he hasn't done that. And objects. The Court: It was mutual, voluntary separation, that's what it was, wasn't it? I mean, that's what he just said, that on January they agreed to separate. Counsel for appellant: months. The Court: They agreed to separate for six

Then they agreed for another six months. They did not --

Counsel for appellant: The Court:

For another period of time. No, he --

Counsel for appellant: The Court: Okay.

They agreed in January to separate. Yes.

Counsel for appellant: The Court:

They have, in fact, been separated for almost

Earlier, at the completion of appellee's testimony, her counsel sought to amend the complaint to conform to the proof. Counsel said: "I don't believe that former counsel filed on mutual voluntary ground. I believe the evidence prima facie thus far supports [that] ground. . . ." After appellant objected, the request was denied. -9-

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two years. Counsel for appellant: Correct. * The Court: Okay. Granted. Thank you, Your Honor. * *

Counsel for appellee:

Counsel for appellant: Just for the record today, I object to Your Honor's ruling. The Court: You object to the allowing him to amend to include the one year voluntary separation? Counsel for appellant: The Court: Okay. Correct.

The objection is on the record.

When called to testify for his side of the case, appellant asserted that, at the end of the six month separation period, he wanted to reconcile. He asked his wife to return to the marital home, and

had written her letters requesting her to do so, but she refused. On cross-examination, the court permitted appellee to impeach appellant with an "Addendum Agreement", drafted and signed by appellant on August 4, 1994, which proposed an additional five month separation on the same terms as the Agreement. never executed the addendum. Appellee sought to Appellee show that

appellant voluntarily agreed to the separation and to an extension of it. In closing argument, appellee claimed that she was entitled to a divorce on the ground of a two year separation, a one year separation, and adultery. As to the two year ground, appellee

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argued that the court should consider the time from May 1993 to January 1994, when the parties resided together but did not

cohabit, in order to satisfy the required two year period of separation. breached the As to adultery, appellee to argued the that wife appellant condoned

conditions

pursuant

which

appellant's conduct.

With respect to the claim of a one year

voluntary separation, appellee's counsel asserted that the parties agreed to a six month "trial" separation, which was later extended by agreement. Based on appellant's failure to testify truthfully

concerning his request to renew the separation, counsel urged the court to discredit appellant's testimony and to find instead a mutual agreement to separate for the statutory period. To support

appellee's position, counsel also argued that appellant failed to corroborate marriage. his claim that he lacked the intent to end the

Counsel for appellee said, in part:

There was certainly adequate opportunity to bring in corroboration of that intent, but he brought none in. So all we have is his own testimony, which has been directly impeached. . . . There is no indication from Mr. Aronson except his appearance at this trial and his testimony at this trial that at any time did he object to the separation, did he object to the separation continuing, or that he objects to a divorce now, except for the fact that it's going to cost him some money. The reality is that these parties could be divorced in six weeks. And all that would be accomplished by deferring this matter for six weeks would be to give Mr. Aronson six weeks to play with his assets and hide his money to avoid whatever award Your Honor is going to give. The evidence does not permit Mr. Aronson out of that hole. * * * [B]ut his affirmative testimony yesterday was that at the end of the separation period he asks for an additional -11-

six month separation. Six months plus six months would be 12 months. 12 months is what you need. And, therefore, what the evidence out of Mr. Aronson's own mouth and documents demonstrates is that Mr. Aronson agreed to a separation and that after then agreed to a further separation, which although now he says he doesn't have, or want to have resulted in a divorce, which now by his own testimony was to extend for at least 12 months. Therefore, we have a mutual agreement to separate with the intent of not having a marital relationship for . . . at least a period of 12 months. That's a ground for divorce. Appellant countered, inter alia, that the two year ground was not satisfied, because the parties did not live apart for the requisite period. He claimed that the wife's condonation defeated

the adultery, because there was no proof of a subsequent offensive marital act or cruelty. Finally, as to the one year period,

appellant strenuously argued that the wife failed to show the requisite mutual intent to end the marriage. Counsel said: "[H]e

is entitled to stand steadfast under the laws of the State of Maryland and contest that that is a two year separation. . . ." Before ruling, the court expressed unequivocally that

appellant's testimony was not credible.

The court said:

To say that Mr. Aronson is not a credible witness is the grossest understatement in the world. To say that his testimony was believable, or was unbelievable is a is not doing it justice. I mean, I don't know how you would convince, I don't care if you go to the bankruptcy court or you go to the U.S. District Court, or you go to the Court of Appeals or the Court of Special Appeals, or the Supreme Court of the United States, in the Fourth Circuit, the Court of Appeals, I don't care where you go. I don't care if you go to traffic court, you testify the way you testified before me, I don't know who you are going to convince.

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Thereafter, the court granted appellee an absolute divorce on the ground of a voluntary one year separation.5 It said, in part:

Adultery. It's been argued to me that I should grant a divorce based on adultery. Well, there is no question that Mr. Aronson committed adultery, there is he admits it, that he committed adultery. There is also no question that Mrs. Aronson, knowing of adultery, continued to live with him and, in fact, in the law did what we know as condone the adultery. . . . I believe that once that happens, then that adultery is no longer a ground for divorce. There has to be a new adultery that occurs after the condonation and it's not been condoned by the wife. Well, Mr. Aronson may very well - I wasn't born yesterday, I mean, you don't buy a condominium just because you are walking by and you see it's for sale and, you know, you are in debt to everybody in the world, but you decide to spend . . . [$]106,000, because it looked like it was a good deal. That's absurd. You don't continue to pay your paramour monies if you no longer are involved. So could very well be that Mr. Aronson was continuing his relationship. * * * * * But he doesn't remember whether he had sexual relations with anybody in the past year. That was as believable as the rest of the testimony that I have heard from him, quite frankly. So he may have. Probably did. But I don't have the proof. I don't have the evidence. So, I can't find by a preponderance of the evidence that he did commit adultery in the past year, so since it was condoned, so I can't grant a divorce based on the adultery. One year separation. . . . I find as a matter of fact that there was an express agreement to separate. I find as a fact that both Mr. Aronson and Mrs. Aronson agreed that they would live separate and apart, they

The court rejected the two year ground, relying on Mount v. Mount, 59 Md. 538 (1984), which held that the parties must actually live separate and apart; failure to cohabitate while remaining in the marital home is not sufficient to satisfy the two year requirement. Neither party has challenged the trial court's decision in this regard. -13-

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agreed that Mrs. Aronson would leave the marital home. They agreed that when she left the marital home it was, at least for that period of time, not to resume the marriage relationship. Their purpose was to separate, to separate themselves from being married. . . . It was their intent to not resume the marriage, for that period of time. Now, in fact, I find as a fact that after that six month period ended that six month period was extended. I find that from the testimony of Mrs. Aronson, which I believe, there was an extension of the six month separation agreement. I find that Mr. Aronson proposed it. I find his testimony to the contrary. His testimony about how he didn't want to separate, how he didn't want the divorce, how he didn't want there ever to be a divorce between the parties absolutely unbelievable. It is not credible. You would have to see him and hear him and watch him and look at him as he testified to it, to know that it is not credible. It's not. * * * * * I find as a fact that they voluntarily separated. I find as a fact they remained separate and apart for more than 12 months after the voluntary separation. I find as a fact there is no reasonable hope or expectation of a reconciliation between these parties. These people cannot be back together, I find as a fact. Therefore, the one year separation of the parties has continued uninterruptedly for one year. It was voluntary. Neither one of them forced the other to separate. They did it with the express intent and purpose of during the period of the separation ending the marital relationship, not continuing it. . . . I will grant them a divorce a vinculo matrimonii.[6] (Emphasis added). Appellant timely noted his appeal from the judgment. Subsequently, appellee filed a contempt petition, in March 1996, alleging appellant's failure to pay child support. Prior to

The court also entered a consent order concerning the custody of the children, visitation rights, and marital property distribution, from which neither party appeals. -14-

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the hearing on June 3, 1996, appellant filed for bankruptcy, but had sent $8,100 to appellee, designating it for his child support payment. Appellee decided instead to apply the money toward the

marital payment of $50,000 that appellant owed at that time. The trial court concluded that appellee was entitled to apply the money toward the marital payment, and found appellant in contempt for not paying child support of $20,000 between January and May 1996. The court ordered appellant incarcerated for

contempt, but included a purge provision permitting appellant to avoid the incarceration by paying $11,900 to appellee. The court anticipated appellant's argument that he was unable to pay, saying: Now his argument is "I can't pay it." Well, his argument was he couldn't pay it when we had the trial. That was what the whole trial was about, how he doesn't have the money, how it's not there. And I made a finding that he does. I mean that's where we were. We were in no more difficult position now than then. He says, "I don't have it." I didn't believe him. Appellant expressed his view that it would be inappropriate for the court to rule on the petition while "convinced that it's going to make a finding that it already doesn't trust Mr. Aronson's credibility." for Appellant later told the court that he had exhibits for the hearing, but then digressed into

identification

arguments with the court concerning a potential conflict between the court's ruling and the bankruptcy proceeding, and whether the court would grant a stay of the contempt order. -15Appellant never

offered the exhibits as evidence, never advised the court that he had witnesses for the hearing, and never objected to the court's comments, on the ground that the court did not consider his inability to pay. On June 5, 1996, after appellant noted his appeal from the contempt order and filed an emergency motion for a stay of the order, we granted the stay of the contempt order. When we lifted

the stay of the contempt order on June 19, 1996, appellant paid the purge amount. We shall include additional facts in our discussion of the issues. Discussion I. It is undisputed that, at the time of the hearing, the parties had been physically separated for more than 12 months and there was no reasonable expectation of reconciliation. Nevertheless,

appellant argues that the trial court improperly granted the divorce on the ground of a one year voluntary separation. Appellee

disagrees but argues, alternatively, that she was entitled to a divorce on the ground of adultery. During the trial, as we observed, appellee amended her

complaint to add the ground of a one year voluntary separation.7

We note that the parties had not been separated for at least twelve months in July 1994, when appellee filed her complaint for (continued...) -16-

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Although

appellant

concedes

that

he

agreed

to

the

physical

separation, he asserts that he did not separate with the requisite intent to terminate the marital relationship. Thus, he claims that

the separation was not "voluntary" within the meaning of Maryland Code, Family Law Article ("F.L.")

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