Deckman v. Deckman

Carter, J., delivered the opinion of the Court. On June 15, 1971, Helen Colleen Deckman (appellant) filed a bill of complaint against her husband William Bay Deckman (appellee) praying a divorce a mensa, temporary and permanent alimony, custody of their two minor children, and counsel fees. The ground alleged in the bill was constructive desertion. The husband answered the bill denying the material allegations and filed a cross-bill seeking a divorce a vinculo and custody of the children on the ground of the wife’s alleged adultery.

The wife answered the cross-bill, as supplemented, denying the allegations. After hearing, the chancellor passed a decree dismissing the wife’s original bill 1 and granting the hus ⁵⁵⁶ band a divorce a vinculo and custody of the children. The wife was given reasonable visitation rights provided that when she was visiting with the children, “she was not to be in the company of her boyfriend Randy or any other boyfriends.” She appealed from the decree of the Circuit Court for Garrett County. The evidence showed the parties were married in 1964 and separated June 2, 1971.

Two children were born as a result of the marriage, ages 4 years and 20 months. The appellee’s employment required him to be away from home five days a week for five of the seven years of the marriage. Following the birth of their first child in 1967, the parties agreed to separate but subsequently reconciled. During Memorial Day weekend 1971, the appellant was hospitalized for several days as a result of an automobile accident.

While she was in the hospital, the parties agreed to separate in accordance with their previous discussions. 2 3****When she was released on June 2, 1971, she found that the appellee had taken the children to his mother’s home and had locked her out of their home. However, she was able to promptly obtain custody and eventually, the court ordered the appellee to permit her and the children to return to the marital domicile and required him to remain away from the home and support the children. 3 The parties owned their home valued at about $15,000 as tenants by the entireties. They also had a joint savings account in the amount of $2300 which the husband withdrew at the time of the separation. He also failed ⁵⁵⁷ to deposit in this account a tax refund check in the amount of $1500 payable to both parties which the wife had endorsed for deposit in the account.

The appellee’s annual income was approximately $14,000 from his employment as a boilermaker and appellant’s annual income was about $4000 from part-time employment as a beautician. During the three days a week that the appellant worked, a babysitter would pick up the children about 8 a.m., take them to her home, and return them to the appellant’s home when she came from work about 5:30 p.m. On the two evenings a week when the appellant attended the local Community College, a babysitter stayed at the home from about 6 p.m. until 9:30 p.m. when she returned. In respect to the appellant’s alleged adultery, her testimony showed that in July 1971, she became acquainted with a twenty year old student named Randy.

They became friends, he frequently visited in her home, and they occasionally went places together. She had borrowed his pick-up truck for two or three weeks in July and August 1971 when she was without a car. Immediately prior to the divorce hearing, he had taken her and her children to a little league football game. 4 The testimony of the husband showed that he first learned of the appellant’s association with Randy when he had noticed a truck frequently parked in front of her residence. Late one evening he decided to investigate, went on the back porch and looked through an open window.

He saw his wife and a young blond-haired boy lying together on the living room floor. His wife had assisted the boy, who appeared to be quite drunk, in getting up from the floor. The boy then went out into the hallway and up the stairs. At that time two other adults (the “Browning boy” and Sandra Willey) were also present in the house.

The “Browning boy” left soon after the blond-haired boy had gone upstairs. Sandra Willey then ⁵⁵⁸ appeared in the living room with the appellant where they conversed for a few minutes and then turned out all the lights in the house. After this incident he saw the blond-haired young man (later identified as Kandy) at the appellant's residence on occasions when he would go there to pick up the children. The testimony of Mr. OUie Graff showed that in July 1971 he had conducted a surveillance of the activities of the appellant from a location across the street from her home.

On Saturday evening July 24 at 8:48 p.m., he saw a pick-up truck with a Wyoming license plate park in front of the appellant’s residence. A young man with blond hair alighted from it and entered the house. At 10:03 p.m. the same young man and the appellant exited and drove away in the truck. About ten minutes later a young lady (not the appellant) came out of the residence and walked away.

At 10:35 p.m. Mr. Graff left his observation post and returned at 11:55 p.m. At 2:45 a.m. July 25, the truck returned, the appellant and the blond young man alighted, and entered the house.

At 2:48 a.m. a young lady (not the appellant) walked away from the residence. At 2:49 a.m. the front porch light went out and at 3 a.m. all lights went out in the house. Mr. Graff left the location at 4 a.m. and returned at 7:51 a.m. and again at 11:09 a.m. The truck was still parked in front of the'residence at 11:09 a.m.

July 25. On the evening of July 28, he again took up his observation post. The same pick-up truck arrived and parked in front of the residence at 8:20 p.m. and the same blond young man alighted and went into the house. At 8:56 p.m. another car arrived carrying a young couple who entered the house.

At 12:30 a.m. the same young couple exited and drove away. At 12:53 a.m. all lights went out in the house and the truck remained parked in front of it. On July 31 Mr. Graff arrived at his observation post at about 9:00 p.m. and found the same truck parked in front of the appellant’s residence. At 9:20 p.m. a lady (not the appellant) entered the residence and departed at 11:45 p.m.

At about 12 midnight all lights went out in the ⁵⁵⁹ house. At that time the truck was still parked in front of the house. Mr. Graff was unable to observe what went cj.i inside the house or who was present at any particular time and could not see the back door. The appellee’s 51 year old mother testified that if custody of the children were awarded to the appellee, she would cease her employment at a local hospital and devote full time to caring for the children.

She further stated she had cared for them on several occasions and had gotten along well with them. 5 The two young women who acted as babysitters for the children testified that the children were well cared for by the wife and presented no unusual problems. Three acquaintances of the parties who had known them socially for more than two years and had visited in their home prior to the separation testified that the children were well cared for and happy. They further stated that the home was clean and well kept. I The appellant’s first contention is that the chancellor committed clear error in failing to grant her a divorce a mensa under her original bill of complaint.

The bill alleges that on June 2, 1971 the appellant “had to flee with her children from the marital domicile and seek shelter with friends and relatives because she feared for her safety and that of her children” on account of the threats, harassment and abuse of the appellee. In her brief she contends that she was actually abandoned by the appellee on June 2, 1971 because he had locked her out of their home and denied her support without justification. However, inasmuch as the bill alleges facts that constitute constructive desertion, the appellant’s relief thereunder, if any, must be determined on this ground. See Matthews v. Kernewood, Inc., 184 Md. 297, 306 ; Parker v. Morgan, 170 Md. 7,25 .

It is well settled that any misconduct of one spouse ⁵⁶⁰ which makes it impossible for the other to continue to live with the erring spouse without loss of his or her health, or self respect or gives reasonable apprehension of bodily injury will justify the innocent spouse in leaving the other on the grounds of “constructive desertion.” See Scheinin v. Scheinin, 200 Md. 282, 290 ; Murphy v. Murphy, 248 Md. 455, 460 ; Ballan v. Ballan, 251 Md. 737, 740-743 . However, in the instant case there is no evidence whatever to establish that prior to the separation, the appellee had been guilty of misconduct which caused the appellant to flee the marital abode to protect her own safety or that of her children. On the contrary, the appellant’s own testimony showed that the separation was voluntary in that immediately prior thereto she and the appellee had mutually agreed to separate. We therefore conclude that the chancellor was not clearly in error in finding that the evidence failed to establish the grounds for an a mensa divorce as alleged in the appellant’s bill (constructive desertion) and in dismissing her bill for that reason.

II The second contention is that the chancellor was clearly in error in granting the appellee a divorce a vinculo on the ground of the appellant’s alleged adultery. In Matakieff v. Matakieff, 246 Md. 23 (1967), the Court of Appeals stated at 30-31: “The elements required for circumstantial evidence to sustain proof of adultery have often been stated by this Court. In Dougherty v. Dougherty, 187 Md. 21 , 48 A. 2d 451 (1946), Judge Delaplaine speaking for the Court, said at pp. 27-8: ‘To prove adultery, the circumstantial evidence must clearly establish (1) a disposition on the part of the defendant and the paramour to commit adultery, and (2) an opportunity to commit the offense. After considering these and all other facts and circum ⁵⁶¹ stances in the case, the court then determines whether the evidence would convince an unprejudiced and cautious person of the guilt of the defendant.’ * * *” See also Stenger v. Stenger, 14 Md. App. 232, 243-244 .

In holding that the circumstances surrounding the association of an alleged adulteress and her paramour need not necessarily consist of a public display of intimacy or indifference to impropriety observed by others in order to support a rational inference of an adulterous disposition, the Court of Appeals in Abare v. Abare, 221 Md. 445 (1960) said at 450-451: “* * * It is true that in a number of cases in which such a disposition [adulterous] has been found, the evidence relied upon to support it has been some more or less public display of intimacy observed by others. 6 That, however, is not essential as a matter of proof. Nor is the statement in Sterling v. Sterling, 177 Md. 683 , 9 A. 2d 214 , to the effect that more than mere opportunity must be shown to sustain the charge, controlling here to establish the insufficiency of the evidence. We think that the evidence, if believed, does show more than mere opportunity. The repeated visits of the corespondent to the husband’s home show abundant opportunity, and we think the circumstances of those visits are sufficient to warrant an inference of a disposition to commit adultery.

These evening visits were fairly numerous, no one else was present, blinds and draperies were usually closed not only in the room used for television but also in the front room, the visits lasted far into the night (on one occasion at least until four o’clock the next morning), and on some Sunday mornings following Saturday evening ⁵⁶² visits the corespondent would be present at an early hour to help prepare breakfast, though it was a 30-45 minute trip each way between her apartment and the husband’s house. She apparently had no car of her own and her testimony is that she would call a cab to take her home after one of their evenings spent in watching television. These facts seem to us sufficient to support an inference of a disposition on the part of both the husband and the corespondent to commit the offense charged, as well as to show ample opportunity to commit it. * * *” (emphasis supplied) In Pontorno v. Pontorno, 257 Md. 576 (1970), the Court said at 579-580: “* * * The evidence in the present case was very similar to that in A bare [supra] * * *. * * * “In the instant case, the visit by Green to the wife’s home, which was observed by the private detectives, lasted until the early hours of the morning. Indeed, there was evidence from which one could reasonably conclude that his visits had on occasion lasted the entire night.

The total effect of the evidence is to present on the part of the wife and the paramour a callous indifference as to what the neighbors may have thought of their relationship or what justifiable conclusions they may have drawn as to the morality of their conduct by virtue of Green’s round the clock arrivals and departures at the wife’s apartment. We think such bland disregard for public impression about a matter which gives rise to a presumption that an illicit relationship persists is such conduct as would support an adulterous disposition. Abare, supra at 451, 452 , and Dougherty, supra, at 187 [27-28] ⁵⁶³ The chancellor in his opinion in the instant case reviewed the testimony of the appellee concerning the activities inside his home as viewed by him late one evening and in particular the conduct of Randy and the wife on that occasion. He also reviewed the observations of Mr. Graff during his surveillance of the wife’s residence during three evenings and early mornings in July 1971 as testified to by Mr. Graff.

He also mentioned the public appearance of the wife and children in the company of Randy at an athletic contest. From this circumstantial evidence together with the total evidence, he found that the adultery of the appellant had been clearly established. Applying the rationale of Abare, supra and Pontomo, supra to the circumstantial evidence above mentioned, we hold that it was legally sufficient to justify the chancellor in finding as facts (1) an adulterous disposition on the part of the appellant and Randy, and (2) numerous opportunities for them to have committed the offense. We also conclude that these facts when considered together with all other evidence in the case, including the age of the appellant (28) and Randy (20) and the fact that the appellant was living separate and apart from her husband (age 33) at the time, were legally sufficient “to convince an unprejudiced and cautious person” that the appellant was guilty of the alleged offense.

See Matakieff, supra and Barnes v. Barnes, 14 Md. App. 638 . We therefore hold that the