Dougherty v. Dougherty

Markell, J., delivered the opinion of the Court. This is an appeal by the wife (defendant) from a decree, dated January 27, 1947, granting the husband a divorce a vinculo, dismissing her amended cross-bill, allowing her additional counsel fees for services in her former appeal and in the subsequent proceedings below and alimony pendente lite to August 28, 1946, the day on which the mandate from this court was filed in the lower court, but not thereafter. On the former appeal this court affirmed the finding that defendant was guilty of adultery, but reversed the decree of divorce and remanded the case to permit her to set up a defense of adultery on plaintiff’s part. Dougherty v. Dougherty, 187 Md. 21 , 48 A. 2d 451, 456 .

On this second appeal defendant complains of (1) finding that plaintiff was not guilty of adultery and (2) denial of alimony pendente lite since August 29, 1946. On the former appeal it was held that the public interest in divorce cases required that defendant be given an opportunity to prove plaintiff’s adultery, though as between the parties this defense might be too belated to merit a hearing. The public interest does not require that in considering the credibility of testimony the staleness of the testimony be ignored. At the first trial “defendant’s solicitor, in asking for leave to amend, explained that he did not obtain the facts as to recrimination until the first day of the trial, but the witnesses were in court ready to testify to the facts.” 187 Md. 21 , 48 A. 2d 456 .

At the second trial defendant’s principal witness and defendant herself both testified that about April, 1941 (before plaintiff left defendant) the witness .telephoned plaintiff and plaintiff went to see her. This witness testified, at length and in detail, that early in 1941 she advertised for a young lady to share her ³¹⁹ apartment on Belair Road, and that plaintiff on behalf of “his young lady friend” answered the advertisement, made a deposit of a week’s rent and the same evening brought around the so-called co-respondent, who stayed with witness for several months, both sleeping in the same bed, until one evening when witness “went out” with plaintiff and the co-respondent, the two women quarreled and the co-respondent left. The co-respondent says she left because witness “makes her living by bringing men off the street into her home” and she found witness in bed with a man. Witness testified to repeated visits by plaintiff to the co-respondent and to behavior which shows both disposition and opportunity for adultery, including spending a night together in the apartment while witness was away for the night.

Witness says she herself has married one man who died, one whose marriage was annulled, and there was one she “was supposed to marry” but never did marry, who lived “as a boarder in her home” for several years and by whose name she was known by the neighbors and listed in the telephone directory up to the time she testified. This witness’s testimony as to plaintiff and the corespondent was flatly denied by them. They say the corespondent was a friend of the wife of a business associate and friend of plaintiff, that they first met at dinner at his friend’s home, that on that occasion and another similar one plaintiff, at the request of his friend’s wife, drove the co-respondent to her home on Belair Road, taking with him and back home his friend and the friend’s wife and son, that plaintiff and the co-respondent never met except on these two occasions and once by chance in front of the B. & O. Building. This testimony is corroborated by plaintiff’s friend.

A friend of defendant testified that in 1940 on three occasions she went with defendant to Broadway and saw plaintiff enter a house, stay about an hour and come out with the co-respondent. A niece of defendant says that once in 1942 she saw plaintiff talking with the co-respon ³²⁰ dent in a department store where the co-respondent was then employed. Whether plaintiff was proved guilty of adultery is a question of