Abare v. Abare

⁴⁴⁷ Brune, C. J., delivered the opinion of the Court. The appellant wife, Mabel Abare, brought suit against the appellee husband, John Abare, Jr., in the Circuit Court for Montgomery County for a divorce a vinculo matrimonii on the ground of adultery. At the conclusion of the testimony on August 14, 1959, the Chancellor gave an oral ruling in which he announced that the bill of complaint would be dismissed. This oral ruling was transcribed and a copy thereof was filed in the case and entered on the docket on August 17, 1959, but no actual decree appears to have been entered, nor is the transcript of the oral ruling signed.

It seems, however, to have been regarded as if it were an actual order or decree. A remand solely for the entry of a formal decree (which we think should have been entered) would merely bring the case back without any further light to guide us in considering the questions which the record presents. Since we have concluded that the case should be remanded for other reasons, we shall not consider this point further. The case comes before us on the appeal of the wife from the “decision” of the Circuit Court and we have her brief and appendix.

There is no brief and no appearance in this Court on behalf of the appellee. We observe that the copy of the “Oral Ruling of the Court” printed in the appellant’s appendix is in exact conformity with the oral ruling as contained in the transcript of the testimony and proceedings filed in the clerk’s office on September 9, 1959, but that it differs from the transcript of the ruling as filed in the clerk’s office on August 17, 1959. The version contained in the transcript and copied into the appellant’s appendix seems badly garbled in some respects. We therefore shall treat the version filed on August 17, 1959, as the correct statement of the Chancellor’s findings and holding.

The first paragraph of the oral ruling states the nature of the case; the last deals with costs and counsel fees. The three paragraphs now pertinent read as follows: “The cases in Maryland are clear that in order to prove adultery sufficiently, while you need not see ⁴⁴⁸ them in the act you must prove time, opportunity, and adulterous disposition. “Without commenting on the recrimination concerning which counsel for the parties have argued, the court finds no evidence whatsoever of an adulterous disposition. As to time and opportunity, the plaintiff has presented some evidence but these elements have not sufficiently been proven to the satisfaction of the court, so the court has no choice whatsoever but to deny the relief requested. “To prove adultery, which is a serious allegation, the evidence must be clear and it just was not proven in this case. The bill of complaint will therefore be dismissed.” The appellant makes two contentions: first, that there was sufficient evidence to prove the husband guilty of adultery, and specifically that the proof of an adulterous disposition was sufficient; and second, that since recrimination was not pleaded as a defense, evidence with regard thereto was not admissible.

Both the version of the trial court’s oral ruling quoted above and the version contained in the appendix make it clear that the Chancellor found “no evidence whatsoever of an adulterous disposition.” This is the principal target of the appellant’s attack. The quoted version is somewhat clearer than the version contained in the appendix in stating the Chancellor’s view as to the insufficiency of the evidence to prove time and opportunity, but still leaves some uncertainties. We shall first outline briefly what seem to be the important parts of the evidence bearing upon the wife’s charge. The parties were married in January, 1950, lived together more than five years, had three children, and separated in November, 1955.

The wife brought suit for a limited divorce charging cruelty and the husband filed a cross bill charging adultery and desertion. The husband was awarded a divorce a mensa on the ground of desertion. Custody of the children was awarded the wife, and the husband was ordered to make ⁴⁴⁹ payments for their support. The couple owned a house and lot as tenants by the entireties.

The husband continues to occupy it and no one else lives there. A woman whom we shall refer to as the “corespondent” or as “Mary Ann” has been a visitor on a number of occasions. The children visit Mr. Abare on Sundays, and Mary Ann has been there with them on some Sundays. The testimony shows that at some time after the separation of the parties, the husband began seeing Mary Ann, that she sometimes accompanied him when he picked the children up on Sundays or when he returned them to the wife’s residence and that Mary Ann prepared or helped to prepare breakfast for them at the husband’s house on Sundays.

There was no evidence of any public display of intimacy or affection between them, but there was testimony as to lengthy evening visits by Mary Ann to Mr. Abare’s house. The precise number is not shown, but it appears from the testimony of both the husband and the corespondent that they were not infrequent. Two such visits—one on Saturday, February 28, 1959, and the other four weeks later, on Saturday, March 28, 1959—were testified to by Mrs. Abare and by a private detective employed by her, and as to the second of these occasions there was also some testimony by a friend of Mrs. Abare. The evidence was that on the first of these occasions Mr. Abare picked up Mary Ann at her apartment in Washington during the afternoon, that (apparently after a trip to a grocery store) they were seen to enter Mr. Abare’s house at about 6:10 P.M., that at 9:30 the lights went out, that at 10:30 a light came on for a short time in the bathroom, and that up to midnight the corespondent had not left the house.

The evidence as to her visit on March 28th was, in general, similar, except that the watch was continued until 4 A.M. on March 29th, without the corespondent having been seen to leave the house. Both Mr. Abare and Mary Ann admitted that she visited Abare’s house on a number of evenings and that she stayed fairly late. They both took the stand, claimed that they watched television on such occasions with the Venetian blinds closed and the drapes drawn over them, and both denied ever having had sexual relations. ⁴⁵⁰ The rules of law governing a case of this sort are well established by a great number of cases in this court. Any extensive citation of authorities would be superfluous.

As was said in Dougherty v. Dougherty, 187 Md. 21, 27-28 , 48 A. 2d 451 : “It is an established rule that the burden of proof in a suit for divorce is upon the complainant, and where adultery is charged the evidence must establish affirmatively that the alleged offense was committed. It is not necessary, however, to establish the charge of adultery by direct evidence of the commission of the act, for because of the clandestine nature of the offense it is rarely possible to obtain evidence of the commission of the act by the testimony of eyewitnesses. The offense may be inferred from the circumstances if the inference is the only natural and logical deduction to be drawn therefrom. To prove adultery, the circumstantial evidence must clearly establish (1) a disposition on the part of the defendant and the paramour to commit adultery, and (2) an opportunity to commit the offense.

After considering these and all other facts and circumstances in the case, the court then determines whether the evidence would convince an unprejudiced and cautious person of the guilt of the defendant.” See to like effect: Swoyer v. Swoyer, 157 Md. 18 , 145 A. 190 ; Lickle v. Lickle, 188 Md. 403, 407-8 , 52 A. 2d 910 ; Meininger v. Meininger, 198 Md. 432, 434 , 84 A. 2d 61 ; Burger v. Burger, 204 Md. 495, 499-500 , 104 A. 2d 923 . Nor is it essential in a divorce proceeding that it be proved beyond a reasonable doubt. Burger v. Burger, supra. We think that the Chancellor was clearly in error in his finding that there was “no evidence whatsoever of an adulterous disposition.” It is true that in a number of cases in which such a disposition has been found, the evidence relied upon to support it has been some more or less public display of intimacy observed by others.

That, however, is not essential as a matter of proof. Nor is the statement in Sterling v. Sterling, 177 Md. 683 , 9 A. 2d 214 , to the effect that more than mere opportunity must be shown to sustain the charge, controlling here to establish the insufficiency of the evidence. We think that the evidence, if believed, does show more than ⁴⁵¹ mere opportunity. The repeated visits of the corespondent to the husband’s home show abundant opportunity, and we think the circumstances of those visits are sufficient to warrant an inference of a disposition to commit adultery.

These evening visits were fairly numerous, no one else was present, blinds and draperies were usually closed not only in the room used for television but also in the