Alston v. Alston

BISHOP, Judge. Herman Alston (Herman) appeals from a decree of the Circuit Court for Baltimore County which granted Viola Alston (Viola) an absolute divorce on the ground of adultery. The decree also equally divided the marital property by allowing each party to retain possession of the property in their control with the exception of awarding Viola fifty ¹⁷⁹ percent of the remaining eighteen yearly installments of $44,000.00 in after tax income Herman is to receive for winning the D.C. Lotto. ISSUES 1.

Whether the court erred in granting Viola Alston an absolute divorce on the ground of adultery. 2. Whether the court erred in distributing the marital property by awarding Viola Alston fifty percent of the remaining eighteen yearly installments Herman Alston is to receive for winning the D.C. Lotto. FACTS The parties were married on July 11, 1964. They had two children, Michelle, born in 1967, and Robert, born in 1970, both of whom were emancipated at the time of trial.

For the first ten years of their married life, Herman served in the U.S. Army. Herman traveled to Baltimore from his station in France to get married and then returned to Europe. Viola lived with Herman’s parents in Baltimore until Herman returned, approximately one year later. Upon his transfer to the United States, Herman was assigned to aviation school in Fort Rutger, Alabama.

Viola stayed with Herman for about three months until she discovered she was pregnant and returned to Baltimore to be near her family during the pregnancy. Soon after Michelle was born, Viola and Michelle returned to Fort Rutger. A few months later, Herman was assigned to Texas. Viola and Michelle initially returned to Baltimore and, a few months later, joined Herman in Texas.

In 1968, Herman went to Vietnam where he served for approximately one year. Viola and Michelle returned to Baltimore. After serving in Vietnam, Herman was stationed at Fort Eustis, Virginia for approximately one year during which Viola and Michelle remained in Baltimore. During this time, their son, Robert, was born.

Herman was discharged while at Fort Eustis, and moved to Baltimore for ¹⁸⁰ approximately four or five months until he re-enlisted in the Army and was assigned to Fort Benning, Georgia. All four family members traveled to Fort Benning where they lived together for the next seven to eight months. Herman then returned to Vietnam for another one year tour of duty, and the rest of the family returned to Baltimore. Herman returned to the United States in November 1972, and was assigned to Fort Lewis, Washington.

The entire family lived there for approximately eighteen months. Herman requested and received a discharge in 1974 and moved his family to Baltimore to go into business with his brother. The business soon collapsed and Herman went to work as a prison guard for the Department of Corrections in Washington, D.C., earning approximately $29,000.00 per year. Herman continued to be employed as a prison guard until he retired in March 1988.

Viola worked outside of the home approximately twenty-two years of their twenty-five year marriage. Since 1975, she has worked as a clerk at the Social Security Administration earning approximately $19,000.00 per year. In June 1978, the Alstons separated when Viola moved out of the family home with the children, her belongings, and some of the furniture. They remained separated until some time in 1981 when they reconciled and attempted to live together.

In 1985, Viola left again, this time without the children; however, the children went to live with her one week later when they and Herman were evicted. The Alstons have lived separate and apart since 1985. In November 1987, Herman won $1.1 million in the D.C. Lotto, to be distributed in twenty annual payments of $44,000.00 (net after taxes). By the time of trial, October 12, 1989, Herman had received two $44,000.00 payments from the D.C. Lotto.

None of this money was given to Viola. In March 1988, he retired from the Department of Corrections and received a lump sum payment of $16,000.00 from his retirement plan. ¹⁸¹ In April 1989, Viola filed an Amended Complaint for Absolute Divorce in which she alleged Herman’s adultery and sought permanent alimony, attorney’s fees and at least half of the marital property. In May 1989, Herman filed his Answer to the Amended Complaint, and an Amended Counter-Complaint for Absolute Divorce based on grounds of abandonment, adultery and cruelty in which he asked that each party pay its own legal fees. At trial, Viola testified that both she and Herman paid the bills.

She paid the phone bill, gas bill and electric bill, Herman paid the rent, and they alternated paying for groceries. Herman did not always pay the rent. At times, Herman did not have enough money to buy his share of the groceries. Viola also testified that she bought the children’s clothes.

Viola testified that she raised the children, that Herman did not want a family, did not care about the children, and in fact, does not speak to them now. Viola also testified that Herman openly committed adultery throughout their marriage. He flaunted his girlfriends so that she knew that he was involved with other women. He would receive telephone calls from different women although the Alstons’ telephone number was unlisted.

Viola testified that she shot at Herman while they were living together in Fort Benning, Georgia. She was trying to sleep and the phone kept ringing and a girl would ask for Herman. She became angry and shot one shot into the floor near Herman. Viola testified that after a woman named Brenda called for Herman she got angry, picked up a kitchen knife, and told him to leave.

She then called the police who came and asked Herman to leave. He said that he would leave, but when the police left, he stayed. During cross-examination, Viola admitted that she had sexual relations during their first separation with a man named Frank. She denied any affairs in her answers to interrogatories, but revealed this relationship with Frank during her deposition.

Viola denied sexual relations with any other men. ¹⁸² Herman testified that Viola’s only contribution to the marriage was her ability to make people miserable, that the children did “eighty percent of the housework,” and Viola and Michelle continuously argued and bickered and on one occasion got into a “physical fight.” Referring to the shooting at Fort Benning, Georgia, Herman testified that Viola shot at him and that the bullet went past his head. She was propped up on pillows in bed and shot at him without provocation as he was walking out the bedroom door. Referring to the knife incident, Herman testified that Viola tried to stab him while he was lying in bed. She put 15 puncture marks in the mattress.

He wanted to call the police but she unplugged the telephone and kept it from him. When he tried to take the knife from her, Michelle protected Viola by threatening to hit him with a long steel pipe. Herman further testified that Viola tried to commit suicide by taking an overdose of pills while they were living at Fort Benning, Georgia. On another occasion, Viola told Herman that she did not want to complete her pregnancy with Robert and was going to kill herself.

Herman also accused Viola of committing adultery. Herman testified that during their time in Fort Lewis, Washington, Viola went out at night and returned home drunk, early in the morning. At times she would return home with jewelry and trinkets. Herman testified that Viola admitted that these gifts came from a man she was seeing.

Telephone calls were received at home and when he answered the caller would hang up. The calls stopped after he and Viola had the phone tapped. In his answers to interrogatories, Herman admitted to having had sexual relations with a woman named Flossy Blackwell during their first separation and with a woman named Kimmy since their last separation. On direct examination, Herman stated that he did not have sexual relations with any other women during his marriage.

During cross-examination, Herman admitted having an affair with a ¹⁸³ woman named Berma while stationed at Fort Rutger, Alabama. Herman explained these contradictory statements by saying, “Mr. White [opposing counsel], if you go back 30 years and find out who you had sex with, do you remember everybody?” Herman also testified that Ms. Blackwell has continued to visit him, and that he gave her $1000 for the use of her truck. Herman also stated that he gambled at the race track in 1985 and confirmed that he reported winnings of $600 on his income tax return. Michelle testified that Viola took responsibility for raising the children.

Herman, she testified, “seemed like he doesn’t [sic] really want to be part of the family.” Michelle testified that she and her mother were close, although they did argue at times. One time they did get in a “physical fight” because Viola wouldn’t let her stay out as late as she wanted. Michelle testified that she did not believe her father always paid the rent because of the overdue notices. She also testified that she moved in with her mother, a short time after Viola left in 1985, because they had been evicted.

Robert testified that he is presently living with his mother and working full time. He testified that Herman did not help with the family: Me and my sister and all of us, she was taking care of us. And I mean he was there, but he wasn’t there in the sense that, you know, he would help us. Meaning me and my sister when we needed things.

When we needed something we knew to go ask my mother, not to ask him because we wouldn’t get it. Robert testified that it was his mother who cared for him and Michelle. The final witness was Roland Alston, Herman’s brother. He testified that he often found Herman cooking when he went to visit.

Roland also testified that Herman would go to the track “once in a while” to play a race. ¹⁸⁴ DISCUSSION Md.Rule 8-131(c) 1 provides that where an action is tried without a jury, “[we] will not set aside the judgment of the court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” See Harp v. Harp, 198 Md. 485, 488-9 , 84 A.2d 895 (1951); Colburn v. Colburn, 15 Md.App. 503, 513 , 292 A.2d 121 (1972). If there is any evidence legally sufficient to support the court’s findings, they are not clearly erroneous, for the weight of the evidence is a question for the court, sitting as the finder of fact. Weisman v. Connors, 76 Md.App. 488, 500 , 547 A.2d 636 (1988); Kline v. Chase Manhattan Bank, 43 Md.App. 133, 141-2 ; 403 A.2d 395 (1979); Staley v. Staley, 25 Md. App. 99, 110 , 335 A.2d 114 (1975). While the “clearly erroneous” standard applies to the court’s findings of fact, the application of the law to the facts is judged on the abuse of discretion standard. 1.

Absolute Divorce on Grounds of Adultery In accord with Md.Family Law Code Ann. § 7-103(a)(l) (1984) the court granted Viola an absolute divorce based on Herman’s adultery. Appellant contends that the evidence was insufficient to support the court’s finding. We disagree. Adultery may be proven with circumstantial evidence that “would lead the guarded discretion of a reasonable and just man to the conclusion.” Pohzehl v. Pohzehl, 205 Md. 395, 405 , 109 A.2d 58 (1954); accord, Goldschmiedt v. Goldschmiedt, 258 Md. 22, 23-4 , 265 A.2d 264 (1970).

Although the “court may not enter a decree of divorce on the uncorroborated testimony of the party seeking the divorce,” Md. Family Law Code Ann. § 7-101(b) (1984), “the corroboration in a genuinely contested divorce case may be slight.” Col- ¹⁸⁵ burn, 15 Md.App. at 512 , 292 A.2d 121 , citing Styka v. Styka, 257 Md. 464, 469 , 263 A.2d 555 (1970). In such a case, the “evidence of corroboration may be found in the admission of the other spouse.” Barr v. Barr, 58 Md.App. 569, 582 , 473 A.2d 1300 (1984); accord, Deck v. Deck, 12 Md.App. 313, 319 , 278 A.2d 434 (1971). Tracing the history of divorce law in this State, this Court, in Barr , explained that traditionally, the preservation of the marital union was necessary to protect the decency and purity of society. 58 Md.App. at 578 , 473 A.2d 1300 . For this reason, husband and wife could not “cast it off by mutual consent, as parties to an ordinary contract may annul its obligations.” Id.

(citations omitted). Therefore, to prevent collusion, admissions of adultery by the parties were required to be corroborated by other evidence. Id. As time progressed, the grounds for divorce became more relaxed and so too the need for corroboration diminished proportionally.

Id. “[D]ivorces are now permitted by voluntary agreement ... with but a year’s wait, the suspicion of collusion is not nearly as likely as when divorces were available only for some specified aberrant conduct.” Id. at 583 , 473 A.2d 1300 . In Barr , the wife accused the husband of adultery and testified that he had admitted having an affair moments before he believed his paramour’s husband was about to expose him. She then testified that she forced him to admit the same to his daughters. Id. at 576 , 473 A.2d 1300 .

The daughters, in turn, testified to the admissions of their father. Id. at 579 , 473 A.2d 1300 . The Barr Court found the case to be “hotly contested” based on the husband’s filing of an alternate no fault action for divorce and ardent appeal to reverse the trial court’s decision. Id. at 579-80 , 473 A.2d 1300 .

In addition, [t]he circumstances of the admission by a