Barnes v. Barnes

Anderson, J., delivered the opinion of the Court. Edna Hall Barnes, appellant (hereinafter called the wife), appeals from a decree of Circuit Court No. 2 of Baltimore City, dated January 27, 1971, dismissing her cross-bill of complaint, in which she prayed for a divorce a vinculo matrimonii from her husband, George C. Barnes, appellee (hereinafter called the husband) on the grounds of adultery and granting to her husband a divorce a mensa et thoro on the grounds of desertion. The facts reveal that the parties were married on December 6, 1946, and lived together at 3016 6th Avenue, in Parkville, Baltimore County, Maryland, until May 18, 1970, when the wife left the home of the parties and moved to the Colmar Apartments, in Baltimore City, where she presently resides. No children were born of the marriage, although the wife has a daughter by a prior marriage.

At the time of the marriage, the husband was employed at the Martin-Marietta Company, while the wife was a beauty shop operator, operating a beauty shop at 1327 East North Avenue owned by the parties. They had resided at 3016 6th Avenue in Park-ville for some 12 or 13 years prior to the date of the separation, and the house was jointly owned. Because of the nature of the wife’s employment, she frequently worked late, and, as a result, the husband did most of the cooking and housework. The marriage appeared reasonably happy until around 1964, when the wife left the ⁶⁴⁰ marital bedroom and moved into a separate bedroom.

The only apparent reason for so doing was that her husband liked to sleep with the windows opened and it bothered the wife’s sinus. After that date they practically ceased living together as husband and wife and each went their separate ways. On October 2, 1968, the wife went to work for the Maryland General Hospital as a clerk-typist and was soon a communication co-ordinator. She had closed the beauty shop after the city riots, which had caused her business to deteriorate to such an extent that she could no longer carry it.

At the time the suit was heard, she was on a temporary leave of absence from her work at the hospital. Prior to 1968, the wife had put a lock on her bedroom door to keep her husband out, and had suggested to him that he go out and get himself a girl friend. Each was living independent of the other except for one occasion, about a year prior to her leaving, when they had sexual relations after she came to his bedroom. Around that time he started dressing up and going to Saturday night dances at the V.F.W. Post of the American Legion in Parkville.

It was there that the husband met the alleged correspondent, Lola Keefer. In October 1968, the wife became suspicious of where her husband was going and retained the Captain Emerson Detective Agency to make a surveillance of her husband. The investigation began on October 25, 1968, and lasted until May 9, 1970. During the 18 month period there were only four occasions when the husband was observed at the home of and in the company of Lola Keefer.

On May 18, 1970, while the husband was at work, the wife left the home at 3016 6th Avenue, in Parkville, Baltimore County, and moved to the Colmar Apartments, in Baltimore City. When she left she took all the furniture with her. In addition, without her husband’s knowledge, she had previously withdrawn $8,000.00 from a joint account in the Calvert Building and Loan Association, taking the passbook with her. This sum had all been deposited out of the husband’s pay checks.

In addition, she took certain ⁶⁴¹ jointly held stocks. After the wife left the home, the husband filed suit for a divorce a mensa et thoro on the grounds of desertion and for a division of the personal property. The wife filed an answer to the bill of complaint denying the desertion, and filed a cross-bill of complaint against the husband praying for a divorce a vinculo matrimonii on the grounds of adultery together with alimony and counsel fees. I It was agreed between the parties that the wife and cross-plaintiff would first proceed with her testimony relating to the husband’s adultery.

Frank Fair, an agent for the Emerson Detective Agency, testified that the surveillance of the husband began on October 25, 1968, and continued through May 9, 1970. On May 9, 1970, he, together with another agent, parked across from the V.F.W. Post 137 on Putty Hill and Old Harford Roads, in Baltimore County, at approximately 8:00 p.m. At approximately 9:15 p.m., he observed George Barnes and a woman, identified as Lola Keefer, park in the parking lot and enter the hall where a dance was in progress. They had a table in the rear and danced almost every dance.

The witness testified that he observed them hugging and kissing. They left the dance and drove directly to Miss Keefer’s home at 2904 Taylor Avenue, in Parkville, arriving at 12:45 a.m. Miss Keefer left the car and entered the house and Mr. Barnes drove directly home, arriving at 12:50 a.m. On May 2, 1970, at 7:15 p.m., he and another agent parked across from 2904 Taylor Avenue.

There was a dim light on in the rear of the house, and, at 8:15 p.m., Miss Keefer came out and emptied some trash. At 9:15 p.m., Mr. Barnes came out and drove off, but returned and picked up Miss Keefer who was waiting. They then drove to the V.F.W. Post 137 and entered the hall. At 11:00 p.m. surveillance ended.

On April 25, 1970, he and another agent parked across from 2904 Taylor Avenue, and, at 8:55 p.m., they ob ⁶⁴² served Mr. Barnes and Miss Keefer come from the house and enter his car and drive away. They did not attempt to follow but went to the house and knocked but no one answered. Mr. Barnes and Miss Keefer returned at 1:10 a.m., parked and entered the house. There was a dim light on inside.

At 3:05 a.m. Mr. Barnes left the house and went directly home, arriving at 3:15 a.m. On April 20, 1970, surveillance began around noon, when Mr. Barnes and Miss Keefer were observed in a used car lot on Eastern Boulevard. At 12:50 p.m. they drove to the Forrest Auto Park, where Mr. Barnes purchased a windshield.

At 2:45 p.m. they drove to Miss Keefer’s house, where Mr. Barnes started working on an old Pontiac in the yard. Miss Keefer came out at 3:35 p.m. and drove to the J. & J. Auto Supply on Harford Road and returned at 4:25 p.m. At 4:40 p.m. both drove to Volvo Auto Parts and returned at 6:50 p.m. At 8:35 p.m.

Mr. Barnes left and returned with groceries. A dim light was on in the front part of the house. At 1:00 a.m. Barnes left and drove directly home.

Mrs. Barnes testified that on May 2, 1970, she stopped by Miss Keefer’s house. Both Mr. Barnes and Miss Keefer were in the yard where Mr. Barnes was working on an old Pontiac automobile. She had a 45 minute conversation with her husband. When she left, she asked him if he was coming home for lunch and he said he was not.

She further testified that since 1968 her husband had been dressing up and going out on Saturday nights, coming in late. She testified that she had received the report from the Emerson Detective Agency, and had paid them $1400.00 for their 18 month surveillance of Mr. Barnes. She also testified that on two occasions a woman called her on the telephone. The first time she said she was Lola and asked to speak to George.

When she told her he was not there, she said to tell him Lola called. Also one night a woman called while her husband was out and they had quite a lengthy conversation during which she (Mrs. Barnes) told her the “little problem she had against her husband as to their incompatibility.” She said that the ⁶⁴³ woman refused to give her name but she knew it was the same woman who had called previously as she knew her voice. On cross-examination she admitted that she left the home on May 18, 1970, taking all the furniture with her. She stated on direct examination that the reason she left was that she was in fear of her life.

This was because many things had happened to her car so that she kept it away from the house, and had someone stay with her, a Mrs. Teeter (who did not testify). She testified that her husband was presently living in the house alone, and that she had a new automobile, a 1970 LeMans Pontiac, which she had purchased with the money taken from the savings account. She testified that she had never forgiven or condoned her husband’s conduct, as reported to her by the detective agency, and there was no possibility of a reconciliation. She further testified that after she had withdrawn the money from the joint savings account (it was deposited from her husband’s pay checks), she used some of the money to take a vacation to Bermuda, bought clothes for herself, bought an automobile, paid the detective agency, paid her lawyer a retainer, and paid her moving costs, including furnishing her new apartment.

She further testified that the money had been withdrawn about 2*/¿ years previously. No evidence was ever produced to show that her husband had been unkind to her or ever physically