Burger v. Burger

⁴⁹⁷ Collins, J., delivered the opinion of the Court. This is an appeal by Vesta M. Burger from a decree dismissing her bill of complaint for a divorce on the ground of the adultery of her husband, Samuel B. Burger, appellee, after a hearing in open court before the chancellor. The parties were married on December 7, 1932, and have a son, who was twenty years of age at the time of the hearing in this case. On July 20, 1951, the appellant packed her clothes and left the home of the parties on a farm in Washington County, because of the alleged cruelty of her husband.

It is practically admitted that the husband was guilty of adultery after his wife left. The question before this Court is whether the marital misconduct of the appellant was such as to bar her from a divorce on the ground of recrimination as found by the chancellor, who was of the opinion that both were “tarred with the same stick”. As there appears no doubt of the husband’s guilt, we will confine the recital of the testimony to the conduct of the wife. After appellant left her husband she secured employment at Rebasco’s Sunset Tavern about three miles west of Hagerstown, where she was employed from July, 1951, until April or May, 1952.

While employed there she became acquainted with one Nevin Cronise, a married man who had been married three times previously, and who frequented the tavern while she was employed there. There was testimony that on one occasion in the tavern Nevin Cronise had his arm around appellant while five to ten records were being played on a “juke box.” This is not denied. They left the tavern together on several occasions at closing time about one o’clock A. M. They were seen together frequently in her automobile, both in the daytime and at night. There is also evidence that while riding in the automobile the parties sat unusually close together.

The appellant and Nevin Cronise were seen to leave appellant’s apartment house on a number of occasions between seven and eight-thirty A. M. Ap ⁴⁹⁸ pellant admits that Nevin slept in her apartment at least six times during the daytime or early evening. She explains this by saying that she altered and repaired clothing and that on those occasions, while she was working, he came in and brought clothes to be repaired and fell asleep. It can be fairly inferred that he kept at least part of his clothes in appellant’s apartment. She admits that she and Nevin were alone in her apartment at least a dozen times.

Appellant also admits that Nevin would arrive at her apartment late and leave his clothes to be cleaned and sometimes stay as late as midnight. In July, 1952, Nevin, with his uncle, Bruce Cronise, by whom he was employed, planned a trip to the tomato market at Tampa, Florida. Mrs. Bruce Cronise, who was then pregnant, wanted to go along on the trip but could not drive. Nevin says he knew that appellant was not working and had an automobile, and he asked her to drive Mrs. Bruce Cronise to Tampa with the understanding that, as appellant did not have sufficient money for the trip, she would only be required to pay for her meals and the other expenses would be paid by Bruce.

Nevin and Bruce left for Tampa on July 23rd or 24th. Appellant and Mrs. Bruce Cronise left for Tampa together on the morning of July 25th, arriving in Florida on July 26th. Nevin states that he registered at the Lafayette Hotel in Tampa as “Mr. and Mrs. Bruce Cronise and Mr. and Mrs. Nevin Cronise”. He says he did this because he did not want to cause the appellant any embarrassment when she arrived at the hotel.

When the women arrived in Tampa, they communicated with the Cronise men by telephone and learned that rooms had been obtained for them at the Lafayette Hotel, where they immediately went. The Cronises and the appellant all testified that they occupied two communicating rooms in the hotel, in one of which the appellant stayed with Mrs. Bruce Cronise. Nevin and Bruce slept in the other room until Saturday, August 2nd, 1952, when Mrs. Bruce Cronise suddenly became ill and left with her husband ⁴⁹⁹ to return to