Barnett v. Barnett

Offutt, J., delivered the opinion of the Court. The parties to this appeal were married on March 16-th, 1912, at the home of Mrs. Barnett in the St. Paul Apartments, in Baltimore, and lived together as husband and wife until June 6th, 1917, when they separated. After the separation Mr. Barnett, the appellant, contributed regularly to the support of his wife and their infant child until January, 1922, when the payments to her ceased, and on April 28th, 1922, she filed the bill of complaint in this case, in which she charged that the appellant had deserted and abandoned her ¹⁸⁷ and that he refused to contribute to ber support, and in which she prayed that she be divorced a mensa et thoro from, him, and that he he required to pay permanent alimony for the support of herself and their infant son, and that she be awarded the custody of the child. The defendant in .his answer denied the allegations of abandonment and desertion, and later filed a erossrbill in which he charged that the defendant, Martha Phelps Barnett, had been guilty of adultery with a certain Geoffrey O. Maxwell, and in which he prayed that he might he divorced absolutely from her and that the custody of their child might be awarded to him.

She denied in her answer the charges of adultery, and testimony in connection with the issues thus tendered was taken in open court, and at its conclusion .and after the case had been argued by counsel the court passed the following decree: “This cause having come on for hearing, and the testimony of the witnesses of the respective parties having been beard in open court, the proceedings having been read, and the arguments of the solicitors for the several parties having been duly considered, it is this 15th day of January, in the year nineteen hundred and twenty-three, by the Circuit Court of Baltimore City adjudged, ordered and decreed that the plaintiff, Martha Phelps Barnett, he and she is hereby divorced a mensa el thoro from the defendant, Eccleston Barnett ; that the said Martha Phelps Barnett he and she is hereby granted and awarded the care, custody and guardianship of the infant son of the parties, Charles Phelps Barnett, with the right, however, to the said Eccleston Barnett to visit and see their said son at reasonable times. “And it is further adjudged, ordered and decreed that said Eccleston Barnett shall pay to said Martha Phelps Barnett the sum of twenty-four hundred dollar's ($2,400.00) per annum as permanent alimony, in monthly instalments of two hundred dollars ($200.00) each, accounting from the 15th day of January, nine ¹⁸⁸ teen hundred and twenty-three; and the said Eeeleston Barnett shall also pay to said Martha Phelps Barnett the further and additional sum of one thousand dollars ($1,000.00) per annum for the support, maintenance and education of their said infant son, Charles Phelps Barnett, in monthly instalments of eighty-three dollars and thirty-three cents ($83.33) each, accounting from the 15th day of January, nineteen hundred and twenty-three, and to continue until the further order of this court. “And it is further adjudged, ordered and decreed that the said Eeeleston Barnett shall pay to Isaac Lobe Straus and William Pinkney Whyte, Jr., solicitors for Martha Phelps Barnett, the sum of one thousand dollars ($1,000.00) as counsel fee, five hundred dollars ($500.00) of which is to be paid on or before January 20, 1923, and the remaining five hundred dollars ($500.00) of which is to be paid on or before March 20, 1923. “And it is further adjudged, ordered and decreed that The Safe Deposit and Trust Company of Baltimore City, the trustee of the estate and property of the said Eeeleston Barnett, be and it is hereby ordered and required to pay each and all of the above sums, in the manner hereinabové provided for with respect to each of them, to the said Martha Phelps Barnett and to her said solicitors, out of the income and funds accruing to the said Eeeleston Barnett from his said estate and property in the hands of said trustee; and the clerk of this court is hereby directed to transmit forthwith a certified copy of this decree to said trustee. “And it is further adjudged, ordered and decreed that the cross-bill filed by the said Eeeleston Barnett against the said Martha Phelps Barnett be and the same is hereby dismissed. “And it is further adjudged, ordered and decreed that the said Eeeleston Barnett pay all costs of these proceedings.” ¹⁸⁹ Erom that decree the present appeal was taken. The substantial and controlling question in the case is whether the appellant sustained the charge of adultery made in his cross-bill, for neither at the oral or written .argument was it- seriously contended that the evidence did not sufficiently show that he had abandoned and deserted his wife and that when the original bill was filed be was. contributing nothing to her support. Before referring in detail to the testimony concerning that question, we will state the general principles by which we should in our opinion be guided in measuring and weighing the evidence produced in support of .a charge of adultery in such cases as this. While adultery is a crime under the laws of this State, yet when it is advanced as a ground for divorce it is not treated as a criminal charge and need not in such a proceeding as this be proved beyond a reasonable doubt, it is sufficient if it be proved by a clear preponderance of the evidence. 19 C. J. 132.

Nor is it necessary that the probative value of the evidence required to justify a finding of adultery should equal that which is required to convict a defendant charged with crime. Ibid., 137. But. while that is true, nevertheless the charge is of so grave .a character, its consequences to the person against whom it is made so permanent and destructive, and the stain upon the character of one convicted of it so indelible, as to impose upon the court trying the issne, where adultery is charged even in a civil case, the duty of examining and weighing with the most scrupulous care the evidence adduced to support it .and, to establish such a charge, the evidence should be clear, satisfactory and convincing. And while it is not necessary to prove it by direct testimony, for it is sufficient if it be shown by circumstances sufficient to warrant a reasonable and prudent man in drawing an inference of guilt therefrom, it is necessary, in order to sustain such a charge, that the circumstances from which that inference is to be drawn must themselves be proven by clear, credible and convincing evidence. ¹⁹⁰ It has been said: “A finding of adultery should be made only where the court is thoroughly satisfied of the truth of the charge by clear and convincing evidence, and such finding is not sustained where the evidence is improbable and contradictory.” Steele v. Steele, 170 N. Y. S. 457.

And while it may not be necessary to adopt in its entirety that expression of the law, it is nevertheless consistent with our view of the quantity and quality of proof needed to sustain a charge of adultery in a divorce proceeding. Pattison v. Pattison, 132 Md. 362 ; Kremelberg v. Kremelberg, 52 Md. 553 ; Thiess v. Thiess, 124 Md. 292 ; Carter v. Carter, 139 Md. 265 . We will now return to the facts of the ease and the evidence relating to them. It is unnecessary to refer .at any length to the évidenee in connection with the appellee’s charge that the appellant abandoned and deserted her, and that at the time the bill was filed he was contributing nothing to her* support.

The circumstances- under which the parties separated are not clearly shown, nor is there anything in the record which points with certainty to> any reason for the separation, but it is clear that, after June 6th, 1917, the appellant lived apart from his wife; that he maintained no home for her; and, according to his own testimony, that after that time he had no further marital relations with her, and that thereafter he by his conduct, manifested an intention not to live with her again; and it is also sufficiently shown that the continued, separation was at his will and instance, and that she was willing at any time to resume their relations as husband and wife and so informed him, and. it also' appears that he finally refused to contribute anything to her support. Under such circumstances in our opinion the learned and careful judge who tried this case below was fully justified in finding that the appellant had deserted and abandoned the appellee. Heinmuller v. Heinmuller, 133 Md. 491 ; Gill v. Gill, 93 Md. 652 ; Muller v. Muller, 125 Md. 72 . For while the evidence shows that the appellee in fact left the appel ¹⁹¹ lant’s Lome, it does not show that when she did so she intended to separate finally from him, hnt it does .appear that, after she left, he by his own actions made the separation permanent, because he leased the only home they then had to his sister, and provided no- other home to which his wife could go.

She alleges that he forced her to leave their home, while he says she left voluntarily, but whether she left voluntarily or involuntarily is not material, because it is clear from- the evidence that after she left she was willing at any time to return to him whenever he provided a place to which she could come, but that, he refused to resume their former relations or to provide a home for her and finally refused to contribute anything to her support. We will therefore revert to the main question presented by the appeal, which is whether the evidence offered by the plaintiff' is sufficient to sustain the charge of .adultery made in his cross-bill. That charge stands or falls upon the credibility of the testimony of two colored servants given about seven years after the occurrence of the event to which they testified. Before referring more particularly to that evidence, we will give a brief account of the persons1 concerned in the supposed adultery.

Mrs. Barnett is the daughter of a widely known and very highly respected author and jurist, who was for many years a resident, of Baltimore City. She appears from her testimony, and that of her witnesses, to be a woman of intelligence, education and refinement, a devoted mother, .and up’ to the time of certain occurrences to which we will presently refer, an affectionate wife. Eceleston Barnett, her husband, at the time of her marriage, was a. man of leisure with no fixed or permanent oeenpation, and who lived upon an income of between eleven and twelve thousand dollars a year, which he received from a trust estate and from which he was obliged to pay three thousand dollars a year as alimony to a former wife from whom he had been divorced. He lived a somewhat aimless life and spent his time mainly at his home .and at his club, and at Ms club, in the fall of ¹⁹² 1914, lie became acquainted with one Geoffrey O. Maxwell, a salesman.

The acquaintance between him and Maxwell soon ripened into intimacy, and they became inseparable. He took Maxwell to his home so frequently indeed that he became in Barnett’s language “one of the family.” While Barnett usually brought him to his home, occasionally Maxwell came without him. On the occasions of his visits to the Barnett home the relations between him and Mrs. Barnett were friendly, but aside from the single occurrence to which we will later refer, there is nothing whatever in the record to indicate that she regarded him or treated him as anything more than a friend of her husband, or that there was any suggestion of impropriety in her conduct towards him. In the spring of 1916, however, Barnett became suspicions that Maxwell’s, frequent visits to his home, were due more to his sentiments towards Mrs. Barnett than to any friendship which he entertained for her husband, and he, Barnett, told his wife that she “was seeing too1 much of” Maxwell, hut there is not a single incident referred to in the testimony which indicates that Mrs. Barnett by her conduct induced Maxwell to visit the home, hut on the other hand the testimony is clear that it was Barnett who first brought him there, and who continued, even after he had complained to his wife that she was seeing too much of him, to bring him to his home.

When he made that complaint to Mrs. Barnett, it does not appear that she expressed any desire to see Maxwell again, nor1 does it appear that she ever did see him again except when he was brought to her home by her husband or came as his. guest, except on one occasion when she met him casually for a few minutes on a street in Baltimore. Barnett in December, 1917, enlisted in the United States Army, and in the following April was sent overseas. He was severely wounded in action .and confined to a hospital for about eigjht months. The demobilization of the American armies following the close of the War appears to have taken place shortly after his discharge from the hospital, and he was then finally discharged from the army. ¹⁹³ At the time the alleged adultery is said to have occurred, Mr. and Mrs. Barnett were living in a “fiat” in an apartment house at 803 Hamilton Terrace in Baltimore.

The “flat” or apartment contained five rooms and ,a hath. The bath room was at one end of the apartment, next to it whs the bed room occupied by Mr. and Mrs. Barnett, and next to that, and separated from it by a folding door, was another bed room which two colored servants occupied. Then came in order the silting room, the dining room and the kitchen. The folding door between the servants’ bed room and the bed room used by Mr. and Mrs. Barnett did not fit very well and was never locked, and in consequence the slightest sound made in one of these rooms would be audible in the other.

One of the servants who occupied the servants’ bed room was Laura Johnson, a colored woman, one of the two witnesses adduced to prove the charge of adultery. After having tried two years at teaching school in Anne Arundel County, she had gone to work for Mr. and Mrs. Barnett in 1913, and remained with them until the spring of 1916, and she was with them at their apartment on Hamilton Terrace when the supposed adultery is said to have occurred. She testified that on one occasion, about the middle of January, 1916, Maxwell had supper with Mm Barnett in the Barnett apartment, while Mr. Barnett was absent in New York, and that after supper Maxwell and Mrs. Barnett left the apartment at .about T o’clock. That some time after they had gone, the witness and another servant, Bertha Thomas, who had put Mrs. Barnett’s little boy, then a child two or three, years old, to bed, themselves went to bed in tbe servants’ room.

That later that night they were aroused by the return of Mrs. Barnett and Maxwell, and Sarah Thomas, one of the women, got up and let them in the apartment, and then returned to her bed. When asked whether on that occasion Barnett was out of the city she said. “Yes, sir, I think I remember one time Mr. Barnett said he was going to New York or some place,” .and later she testified, “When he left, the day he ¹⁹⁴ left did any one come to the house, after he had gone that same day ? No one I do not think — I don’t know if it was any one. I am sure Mr. Maxwell came.

Q. When was that ? A. He was to supper I think * * * that was in January * * * I guess it was, .as far as I can remember about tbe middle of January, somewhere along there.” She said that she did not herself see the people who came into the apartment but that she beard voices which she identified as the voices of Maxwell and Mrs. Barnett. That after Bertha Thomas had returned to the room which she and the witness occupied she heard voices in Mrs. Barnett’s bed room which she recognized as the voices of Maxwell and Mrs. Barnett. The witness, when asked to describe what she had heard on that occasion in that room, said, “Well, I heard the talking; and the whispering in the room, and then I heard the bed making a lot of noise * * *.

And I heard a lot of noise and the noise kept up, and the noise of the bed kept np. I heard whistling in there and it just annoyed me, and I got up to raise the window and let them know some one was awake in the next room and put the window down again and the noise stopped.” She further testified that early the following morning, apparently before it was quite light, she heard some one leave the apartment and that she and Bertha Thomas went to the window and she saw some one, whom she “taken” to he Mr. Maxwell, leave the house and get in an automobile. On her cross-examination the witness said that she lived at Waterbnry, near the country place on the Severn where Barnett had formerly lived and which he had leased to his sister, and that she had told Barnett of what she had seen when he came to her home in May, 19-22, to find out what she knew about it. She also admitted that, after his visit, Mrs. Barnett saw her .and asked her, whether she had “ever seen her do anything wrong with Mr. Maxwell,” and that she had told her that she never had, and that she told her that “to stop the argument, I told her I did not know anything about it.” The witness was examined at some length concerning her ¹⁹⁵ employment and actions, since 1916, apparently for the purpose of testing lier memory.

She had, at the time she testified, been married about three years, but she was unable to remember clearly the year of her marriage. She had worked, she said, for two families at Roland. Park after she left the Barnetts in 1916, but she could only remember the name of one of her employers. She was employed for a time by