Barr v. Barr

LOWE, Judge. There is a suggestion in the record of this appeal and cross-appeal from the Circuit Court for Montgomery County that neither the appellant (cross-appellee), Rosalie M. Barr, nor the appellee (cross-appellant), Nathaniel F. Barr, are easily satisifed. Despite the duration of their marriage for over quarter-of-a century during which three daughters were born neither was satisfied by the union; now that it is terminated, neither is satisfied by its dissolution. Appellant wife complains that she did not get enough, arguing that: “I. The court committed reversible error by refusing to consider expert testimony on the present value of appellee’s pension.

II

Under the circumstances of this case, it would be an abuse of discretion not to use the 'present value’ of appellee’s retirement rights or to provide as, if and when payments.

III

The court did abuse its discretion by not granting the appellant and the minor child of the parties three years use and possession of the family home, and, in the circumstances of this case, by failing to allow the minor child to complete her high school education while living in the family home.

IV

The court erred in not reserving in the decree the power to further exercise its authority conferred by Section 3-6A-05 upon conclusion of the use and possession order of the family home.” Cross-appellant husband complains that she did not deserve what she got because: “I. The lower court err[ed] in granting a divorce to the plaintiff based upon the wife’s grounds for divorce. ⁵⁷⁵ II. The lower court err[ed] in dismissing the supplemental counterclaim for divorce a vinculo filed by the Defendant and cross-plaintiff, Nathaniel F. Barr.

III

The lower court err[ed] in failing to make any findings concerning some personal property of the parties and in failing to make any disposition of said property. IY. The lower court err[ed] in determining the amount of child support payable by Nathaniel F. Barr to Rosalie M. Barr.” From early in their marriage in 1956, Mrs. Barr (a certified psychiatrist) 1 was concerned that her chemist husband’s libido did not fulfill her expectations. Despite her overtures his interest waned until 1975 when he refused further such participation even infrequently.

On May 3, 1980, Mrs. Barr had reason to believe that Mr. Barr was manifesting a libidinal resurrection when he explained to her the gravity of a phone call received that morning from a distraught lady. Pressed by an inquiry from Mrs. Barr, her husband hesitatingly explained that the caller was “Cora”, a lady with whom he had been having an affair. Apparently Cora’s husband, John, had recently found the appellee in Cora’s boudoir, “... on Saturday morning ... he was over there, and he was in her bedroom changing his clothes, and suddenly John was there, and John kicked him in the behind and cursed him out of the house.”, and was on his way to the Barr home. “[Nathaniel] told me that the reason for the phone call to the house of May 3rd was that Cora was calling him to warn him that John was coming to our house with pictures presumably to show to me.” ⁵⁷⁶ Presumably this confession of relatively frequent sexual intercourse with Cora by Mr. Barr to his wife was intended to anticipate John’s arrival, perhaps to prepare her for the psychological impact of John’s revelation, if not to assuage her husband’s conscience by a formal declaration of guilt. Alas, the portending purpose did not materialize; alack, the confidence of the confessional was not maintained.

Not only did Mrs. Barr reveal the sordid sins so confessed to two of their daughters, 2 but she also demanded that he confess it to them himself. Perhaps because the acknowledgment to them of his indiscretions was no more satisfying to Mrs. Barr than their marriage had been, she sought once more to feed him crow: “A few nights later before he finally left the house we were still eating dinner together, and at the dinner table I brought it up. I deliberately brought it up. I really thought very much within my own heart that I wanted these children to know that I was not divorcing their father for silly reasons or that there was a real reason for this that I could .not continue the marriage and that I could not continue the family for them, and he had not said to them yes, I am having an affair.

So, I said to him, ‘Tell these children why we are getting a divorce. Tell them,’ and he did not want to say anything, and I said, ‘Are you denying, or are you not saying that you had an affair or that you are having an affair?’ He said that he could not deny that. I said, ‘Are you having sexual intercourse with this woman?’ He said that he did not think we should discuss that in front of the children. I said that I thought the children are old enough to know what it means and what it means to us, and he said, ‘Yes.’ ” But for the fact that both Cora and Nathaniel declined to testify on grounds of self-incrimination, such was the adultery evidence which the trial judge found to be ⁵⁷⁷ “though slight, is sufficient to establish the Wife’s grounds for divorce a vinculo matrimonii." The “grounds” for divorce were two only: adultery for obvious reasons and constructive desertion based on the admitted refusal of Mr. Barr to perform his husbandly role.

Mr. Barr argues that his uncorroborated admissions of adultery were insufficient to sustain a divorce on that ground and that his refusal to have intercourse with Mrs. Barr, despite her clearly understood overtures, was not constructive desertion because he did not “intend” that it terminate the marriage. The court, of course, is not bound to believe a litigant’s expression of past intent. It may infer from the conduct of an admitted refusal, together with the circumstance of subsequent departure, that his intent was to terminate the marriage despite his present protestations. Not only does the refusal belie the protestation, but also his subsequent affair hardly imputes suggestion of permanence to the nuptial bond.

Nathaniel also errs in concluding that there was insufficient corroboration of his admissions of adultery repeated to his wife and again to his daughters. Referring somewhat vaguely to a requirement for corroboration of the admissions of the husband as testified to by his wife and his children, cross-appellant relies upon only two cases in Maryland. He cites Le Brun v. Le Brun, 55 Md. 496 (1881), for the principle that a rule requiring corroboration was a guard against marriages being set aside by collusion. “The great basis of human society throughout the civilized world, is founded on marriages and legitimate offspring; and where an existing marriage is proved, it is not to be exposed to the danger of being set aside by any species of collusion, or by the mere declarations of either of the parties, and should only be brought in question upon the most undisputed proofs.” Id. at 503 . His only other Maryland authority is Campbell v. Campbell, 174 Md. 229 , 198 A. 414 (1938), wherein adultery was ⁵⁷⁸ raised as a defense to the husband’s suit for divorce on the then new grounds of voluntary separation.

Presumably, the cross-appellant finds it significant that the Court of Appeals avoided the issue of that recriminating defense by holding the husband’s admissions to several witnesses as an inadequate basis for determining that course. Id. at 239 , 198 A. 414 . While we are not particularly impressed with cross-appellant’s reliance on out-of-State authority, we acknowledge that in Maryland there has been a tradition of treating marriage as a partnership easily formed but difficult to dissolve because of the peculiar public interest involved. “ ‘It has always been held, in England as well as in this country, that the public has a peculiar interest in the marriages of its citizens since upon the proper preservation of the marriage ties depends the decency and purity of society. Therefore, though unmarried persons may contract the status of marriage when they mutually please, those who have assumed it cannot cast it off by mutual consent, as parties to an ordinary contract may annul its obligations.’ ...

And it is for this reason that a cause for divorce cannot be established by admission of [the] parties alone, as public policy requires that such confession to be sufficient to support a decree must be corroborated by other evidence.” Fisher v. Fisher, 95 Md. 314, 318 , 52 A. 898 (1902). As Fisher points out, this “general principle” has been recognized and enforced in this State by legislative enactment. Id. at 318-319 , 52 A. 898 . The statutes and rules requiring corroboration have varied from time to time as have the statutory grounds for divorce.

It appears that as the grounds for divorce have become more relaxed, so too has the need for corroboration diminished proportionately. But except for these statutes or rules, no other rule of law forbids entry of a decree for divorce upon evidence of admissions of adultery. Schriver v. Schriver, 185 Md. 227, 241-242, 44 A.2d 479 (1945). ⁵⁷⁹ The only statute relating to the corroboration of divorce testimony to which we are privy today is Md.Cts. & Jud. Proc.Code Ann., § 10-901(b) providing that with the exception of a divorce founded upon a voluntary separation agreement, “... a decree of divorce may not be entered upon the uncorroborated testimony of the plaintiff alone.” Such, of course, was not the case here.

The daughters testified to the admissions of their father, supplementing that of Mrs. Barr. Thirty years ago, when man was still acting under the ecclesiastical admonition that he should not put asunder what God had joined together, the Court of Appeals still recognized that: “Such admissions ‘unsupported by corroborative proof should be received with the utmost circumspection and caution’ ....” Schriver, supra at 241 , 44 A.2d 479 . “ ‘Nevertheless,’ ” it held that “ ‘if, after looking at the evidence with all the distrust and vigilance with which * * * it ought to be regarded, the Court should come to the conclusion, first, that the evidence is trustworthy, secondly, that it amounts to a clear, distinct and unequivocal admission of adultery, we have no hesitation in saying that the Court ought to act upon such evidence, and afford the injured party the relief sought for.’... In Maryland, divorces have been granted on evidence consisting largely of admissions of adultery. Kremelberg v. Kremelberg, 52 Md. 553, 556 [1879]; Fassett v. Fassett, 143 Md. 35, 41, 42 [ 121 A. 859 ], [1923]____” Schriver, supra at 241-242 , 44 A.2d 479 .

Certainly, the circumstances of this hotly contested case allay any concern that the parties colluded. Cross-appellant’s own conduct is adequate proof of that. Not only do the circumstances and permissible inferences serve to negate any inference of collusion, they also tend affirmatively to corroborate the out-of-court admissions of adultery. Beyond that, the fact that the cross-appellant had filed an ⁵⁸⁰ alternative no-fault action for divorce suggests that he was opposed to the adultery divorce sought by his wife as well as her charges of constructive desertion, rather than having colluded with her to concede a fault finding ground.

His ardent appeal to reverse that decision punctuates the proposition that there is not even a suspicion of collusion suggested by this case. In light of our obvious holding that the evidence of adultery was sufficient to support the a vinculo divorce, we need but address briefly cross-appellant’s evidentiary insufficiency contention regarding the constructive desertion ground. The chancellor observed: “With respect to the Wife’s allegations that the Husband refused to engage in sexual relations, the Wife testified that the parties ceased relations in 1975, notwithstanding numerous efforts on her part. Her efforts, she testified, included the loss of 37 pounds, submission to a hysterectomy operation in 1978, and numerous attempts on her part to obtain the professional assistance of a psychiatrist.

Although he did not deny the Wife’s testimony concerning the absence of sexual relations, the Husband attributed such inactivity and his failure to respond to her efforts to constant nagging on her part, repeated instances of berating, and numerous reflections upon his manhood. The Husband denied that any such refusal on his part was with the intention of terminating the marriage. Both parties now agree that there is no reasonable expectation of a reconciliation of the marriage.” Ample evidence was revealed in the record to support the finding that cross-appellant’s admissions, albeit reluctant, corroborated his wife’s allegations that he had not had intercourse with her, despite her attempts to woo him, from December 1977 through the beginning date of the trial on December 17, 1981, four years later. 3 ⁵⁸¹ “Q Subsequent to your wife’s hysterectomy, do you recall any sexual intercourse, not intimacies? A No, I don’t, Mr. Ferretti.

Q Did you ever refuse to have sexual intercourse with your wife? A Not in a direct sense of eyeball to eyeball — Rosalie saying, ‘Let’s have sexual intercourse.’ I think I would have to agree with her statements that approaches to me that might have been interpreted reasonably as requests for sexual intercourse, I did refuse. I did not accept. Q Is it fair to say that what you describe is that your wife always accepted your advances?

A If not one hundred percent of the time, yes. Q And is it fair to say that from December 28, 1977 you have never made sufficient advances to her to have sexual intercourse, is that correct? A Yes.” This scenario is surprisingly similar to the situation in Zink v. Zink, 215 Md. 197, 202 , 137 A.2d 139 (1957), where a wife had also sued for divorce on the dual ground of adultery and constructive desertion because Mr. Zink “had continuously refused to have sexual relations despite her efforts to woo him.” Id. at 200 , 137 A.2d 139 . Mr. Zink had agreed at the beginning of the trial not to contest the desertion “if the question of adultery was not gone into.” Id. at 201 , 137 A.2d 139 .

This being so, the case was treated by the Court of Appeals as one where there was a possibility of collusion and the degree of corroboration required rose proportionately. Id. at 201 , 137 A.2d 139 . ⁵⁸² The only corroboration of the cessation of sexual relations by Mr. Zink despite Mrs. Zink’s efforts was from a niece who testified that her aunt had told her in the presence of Mr. Zink who stood mute, that the couple had not been “ ‘man and wife since 1950’ ”. Because “[hjusbands and wives do not naturally and customarily discuss intimate problems or difficulties with outsiders, and it is more unlikely than likely that a husband would debate with his wife in the presence of a third person the details of their intimate life.” Id. at 203 , 137 A.2d 139 . the Court of Appeals held that the corroboration of the wife’s allegation was insufficient. Judge Hammond’s comments for the Court on the state of the law of corroboration in contested divorce cases is most instructive. “It has been held that in a contested case, where the possibility of collusion is slight, evidence of corroboration may be found in the admission of the other spouse.

Brennecke v. Brennecke, [ 213 Md. 447 , 132 A.2d 106 (1957)] supra; Cullotta v. Cullotta, 193 Md. 374, 382 [ 66 A.2d 919 ] [1949]; Maranto v. Maranto, 192 Md. 214, 217 [ 64 A.2d 144 ] [1949]. Where a party to an action adopts a statement uttered by another, it becomes his own admission. In some situations standing mute may constitute the adoption of the statement of another person. This can be only when no other explanation is equally consistent with silence — i.e., if the situation and circumstances are such that a dissent in ordinary experience would have been expressed if the statement or communication had not been correct. 4 Wigmore, Evidence (3d ed.), Secs. 1069 and 1071).

McCormick, Evidence, Sec. 247, at 528, 530, discusses the rule and says: ‘If a statement is made by another person in the presence of a party to the action, containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true and his conduct is thus receivable against him as an admission of such belief.’ He points out that a failure to deny may be more ⁵⁸³ naturally explainable on some inference other than that of belief in the truth of the inference and that the evidence is then to be excluded. If an admission by silence is to be received against the silent party, it must be found (1) that the statement was actually made; (2) that the reaction of silence or evasion took place as claimed; (3) that the party heard and understood the statement; and (4) that under all the circumstances the