Fassett v. Fassett

Offutt, J., delivered the opinion of the Court. The parties to this appeal were married by a, Roman Catholic priest at Erie, Pennsylvania, in 1904. After their marriage they lived for a short time at Toledo, Ohio, where the appellee, who appears to be a builder, was temporarily em ³⁶ ployed. In the latter part of the same year they returned to Erie, where they remained until October, 1918, when they removed to Brentwood, Prince George’s County, Maryland.

They lived together there until May, 1921, when Mrs. Fassett, after a quarrel, left her husband’s home and went to live in the City of Washington. There were three children of the marriage, all of whom are living, boys, aged 16, 14, and 12 years. When their parents separated the eldest of these children went with his mother, while the two younger ones remained with their father at his home in Brentwood. On November 15th, 1921, the appellant filed in the Circuit Court for Prince George’s County the bill of complaint in. this case, in which she charged that the appellee had been guilty of adultery with a certain Boberta Husband, and she also charged that he had failed to properly provide for his family, and alleged that he was receiving a salary of fifty dollars per week and had certain real estate worth $5,000.

In that bill she asked that she be divorced a vinculo matrimonii from her husband; that she be awarded alimony permanently and pending the litigation, and that she be given the care and custody of the three children. The defendant in his answer, after denying all charges of misconduct, alleged that his wife was not herself without fault, but that she had on repeated occasions during their married life deserted him and their children. Testimony was taken in connection with the issues made by those pleadings, and, on July 27th, 1922, a decree was passed dismissing the bill. From that decree this appeal was taken.

For reasons which we will state we cannot agree with the conclusion reached by the learned judge who1 tried the case in the lower court, and in our opinion, upon the evidence before us, there was error in that decree. The record contains the testimony of curious neighbors, prejudiced friends, and frightened children, so often found in such cases, much of it palpably false, some of it incredible, and a great part of it wholly irrelevant. But, measured by ³⁷ the standards of ordinary men in dealing with the acts and conduct of their fellows, it does, we think, taken as a whole, fairly establish the allegations of the bill which charge the defendant with adultery. It could serve no useful publie purpose to refer in detail to that testimony, and we will, therefore, only speak of so much of it as is necessary to support and explain the conclusion we have reached.

And first we will briefly state those facts which are not controverted. Shortly after Mr. and Mrs. Fassett came to Brentwood, he bought a house and lot for $2,800, of which $200 was paid in cash, the balance remaining in the property secured by a mortgage. At that time Fassett was employed by the Henderson Manufacturing Company at a salary of $45 per week. His wife was also employed in the City of Washington at a salary ranging from $18 to $22 per week.

From the income thus obtained the family was in some fashion fed and clothed, and Fassett paid off $1,100 on the mortgage. It is charged in the bill that Fassett failed to supply necessary fuel and clothing for his wife and family, but the testimony as to that is conflicting and unsatisfactory, although it is clear that, from the earnings of the husband or the wife, the home was kept up in reasonable comfort and the children properly clothed until the separation. The domestic life of Mr. and Mrs. Fassett was not always happy; they quarreled not infrequently, and on several occasions she left his home, but their differences do not appear to have been irreconciliable until the defendant met Mrs. Roberta Husband in October, 1920. Mrs. Husband is the daughter of a; Mrs. Lillian F. Weiner, who lived at Glen Echo, a village on the Conduit Road, in Montgomery County, Maryland, and she herself was at times employed at Glen Echo Park, an amusement resort, located in that village.

From that time on Fassett met Mrs. Husband from time to time, and his attentions to her became so marked that on April 1st, 1921, they were the subject of ³⁸ an anonymous letter sent to her husband, Cissell J. Husband. Her husband, inspired by that anonymous letter, made certain investigations, and as a result appears to have made statements to his wife, apparently in connection with that letter, which she resented, and she thereupon separated from him. So that after the first of May, 1921, Mrs. Husband was separated from her husband, and Mr. Fassett was separated from his wife. Some time during the summer of 1921 Mrs. Husband appears to have visited Fassett’s home, but whether only occasionally or for a considerable period is not clear, but on the third of July of that year Fassett took his two youngest boys to Colonial Beach, where Mrs. Weiner, Mrs. Husband’s mother, occupied a cottage, and they stayed with her until she returned to her home in Washington, when they were sent to a home for children, also at Colonial Beach- While the children were at that resort, Fassett, then separated from his wife, frequently drove down there from Washington with Mrs. Husband, then separated from her husband, but on these trips it is said they were always accompanied by some member of her family.

Whilst at that place he took part with Mrs. Husband in the amusements, such as dancing and bathing, usual at such a resort. After their return from Colonial Beach, he from time to time met Mrs. Husband, took her in his automobile, took her to dances, and some time in November of 1921, took her to reside permanently at his home in Brentwood as his housekeeper. Mr. Fassett’s testimony as to the circumstances under which Mrs. Husband came to live at his home as his housekeeper is worth at least passing notice. He said that, because he had had trouble in getting a satisfactory housekeeper, he asked Mrs. Weiner if she could recommend anyone for the position and, to quote his testimony: “She said, eI will tell you what I will do, I will do my work at home and I will come from Glen Echo to Cottage City and do your work.

I will clean your house and make your beds ³⁹ and I will get your dinner ready so that all you have to do is to put it on the stove.’ She said, ‘I will do that for you, and then I will come on back home and be there when the girls get home from work.’ I thanked her for it. I thought it was very considerate, but it is too much. It is about twenty miles, I would figure, one way, from Glen Echo to Cottage City, and to make that round trip every day, I wouldn’t think of it. She didn’t, of course, insist on it- I thought it was nice in her offering it, but I couldn’t accept it.” He then said that Mrs. Weiner suggested that Mrs. Husband act as his housekeeper, and, while he did not immediately accept that suggestion, he did finally install her in that position.

When she came to Jive at his home he appears to have introduced her, at least to his children, as “Miss Williams.” When asked why he did that, he said he did not know, but he “guessed” he did it because it was an “easier name to use.” But the relations between the two soon became so pleasantly familiar that he dispensed even with the “easier name” and called her “Boberta,” and she in turn reciprocated his kindness by addressing him as “Lawrence.” He admitted that she did at times thus address him, but explained it by saying that she did so only when his father was present and she did it then to “designate the difference.” The manner in which Mrs. Husband discharged her duties as his housekeeper inspired' in him at least a sincere admiration, for when he was asked whether he loved her he said: “Well, she has been very nice and very good to me and my boys. She came out there and did a mother’s work, took a mother’s interest in those children, and I admire her. She has certainly been very fine to me in that respect. Q. .Do you love her at all ?

A. Well, I wouldn’t say that. It is a different feeling entirely- I admire her, and have a high regard for her, but I don’t know that you would call it loving her. I don’t think you can love very many people at one time. I just admire her and have a very high regard ⁴⁰ for her.” These kindly sentiments which Mr. Fassett cherished for his housekeeper she returned in at least equal measure, for when she in turn was asked whether she loved him she said: “Well, he is nice enough to love.” And when further questioned she gave this testimony: “Q. Would you like to marry Mr. Fassett?

A. I don’t think I would ever have the opportunity. Q. If you ever had the opportunity, would you? A. Well, I would think that he would be an ideal husband.” The relations between Mr. and Mrs. Husband and between Mr. and Mrs. Fassett were in sharp contrast to the relations of Mr. Fassett and Mrs. Husband. For when Mrs. Husband was asked: “Do you love Cissell, your husband ?” she replied, “I do not.” And when Fassett was asked about the relations between him and his wife before their separation, he said: “We were not getting along very sweetly at that time.

Q. What was the trouble, mainly ? A. Oh, she would get in the moods she would always get in just before she would leave home. It wasn’t very pleasant for me, so I wouldn’t stay around there any more than necessary.” And again in the following testimony he throws light on their relations: “Do you remember saying anything to your wife about you wanted her to get out and get a divorce, and told her to state her price? A. Well, those arguments would come up.

She said, ‘I will leave you this time and I never will come back,’ and all that kind of stuff, and that kind of got on my nerves, and possibly at various times I said, ‘All right, go ahead.’ * * * Q. Did you ever tell her to go ahead and get a divorce? A. Well, I probably told her to do as she saw fit. I don’t know as I ever told her to get a divorce. I don’t believe in divorces.

Q. You never asked her for her price ? A. I don’t know as I would have any occasion to do that- Q. Did you ever tell her you wanted to marry somebody else? A. Hot that I recall. If I did state it, it would have been for an argumentative purpose.” ⁴¹ Another incident which throws some light upon Mr. Fassett’s feeling for his wife is the fact that he allowed the mortgage on their home to be foreclosed after she left, in order to bar her equity.

That he did that is manifest from these extracts from his testimony: “Q. As a matter of fact, didn’t you have that house sold so that you could get vour wife’s interest out of it? A. Well, what if I did? She had an equity of $2,800, and I personally ran it up to $3,000, gave her an equity of nearly a thousand dollars. Q. That was your purpose in selling or letting that house go?

A. 'No, sir; not necessarily. The truth of the matter was the mortgagee wanted the property. He owns both sides of it, and wanted that house. He sent people there at times to inquire if I was not willing to sell.

Q. The mortgagee didn’t get the property, did he? A. He did not- Q. Your father got it? A. Yes, sir; and he was peeved to think that he didn’t get it. He expected, to get it.” Before passing from those facts, which are either uncontradicted or admitted, reference should be made to a letter from Fassett to his wife, and his testimony in connection with it, since, taken together, they not only aid in the interpretation of the admitted facts, but also point out the significance of the disputed facts in their relation to the admitted facts, and are of value in weighing the testimony tending to prove or contradict such facts.

The letter was unsigned, undated, and without an address, and appears to have been written shortly after an interview which Fassett had had with his wife in August, 1921, and was sent to his wife by his oldest son, Warner. In part, it reads as follows: “I don’t know what to write or how to write it, but I must say something. What you told me tonight and all you told me is only the sad truth. I have lied to you, lied about you, deceived you and been unfaithful, and why do I do it?

I wasn’t brought up that way and don’t think I get it from my parents, but where does it come from, and is it ever going to run out? Anna, I have abused you when I had you, and now ⁴² that I have lost you, what’s left? * * * But what you told me tonight you have told me a hundred times before, but it went right over. Tonight it stuck. Tomorrow with me, Anna, things are going to be different.

I am going to start all over and show myself, you and others, that there is a tiny spark of manhood left in me. When I look back over my life what a failure it has been, and what chances I had. Anna, you have been so faithful, so striving and unselfish for our children that now you don’t deserve what you are up against. * * * I realize, Anna, that you are lost to me, and now that I have a chance to have others, I don’t want them. My ambition now is to have you some day say to me, Well, Lawrence, you fooled me; you have really made a man of yourself.’ Please destroy this letter and don’t tell any one about it, and I will not annoy you with any more.

Goodbye.” When he was asked about that letter in the course of his cross-examination, Fassett said that it was only written to get his wife to return to his home; that the statements in reference to her were mere flattery and quite unfounded. His real intentions as to his future conduct, as well as the weight to be given to any statements made by him, are