Gosman v. Gosman

Powers, J., delivered the opinion of the Court. Francis H. Gosman and his wife, Thelma R. Gosman, were married in 1945 and lived together in their home at Beltsville in Prince George’s County until Mrs. Gosman left the home on 10 December 1971. Of their three children only the fourteen year old daughter, Julie, still lived at home. In March, 1972, Mr. Gosman filed in the Circuit Court for Prince George’s County a bill of complaint alleging that his wife had deserted him and praying for a limited divorce and custody of their minor child.

He alleged in the complaint that he was the sole owner and operator of a retail grocery, freezer meat, restaurant, lounge, and music recording business known as Dawnrose, in Prince George’s County. In addition, he asked that his wife be required to return to him the sum of $48,000.00 which she withdrew from the business bank account at the time she left the family home. With her responsive pleading to the husband’s complaint, ⁶⁹ the wife filed a counter complaint for an absolute divorce, alleging that the husband had in November and December 1971 committed adulteries which she had not condoned, as well as numerous previous adulteries which she had condoned. She alleged that “the parties jointly own property consisting of real estate, businesses, corporate stocks, household furnishings, automobiles, and other personal property”, and specifically alleged that she was a joint owner with her husband of a “combination night club, grocery store, liquor store and restaurant”, and that she was unemployed.

In her counter complaint the wife prayed for an absolute divorce, alimony, custody of and support for the minor child, counsel fees and money to prosecute her suit, and prayed that the court determine all property rights of the parties in personal property. Shortly after the filing of these initial pleadings, the parties entered into a stipulation, without prejudice to the rights of either, that the wife should retain the sum of $24,000.00 and return the sum of $24,000.00 to the husband. The evidence indicates that she complied. Following extensive discovery on behalf of both parties, the case was heard before Judge James F. Couch, Jr. in the Circuit Court for Prince George’s County on 26 and 27 September 1972.

Counsel thereafter filed written arguments on the issues involved. On 10 November 1972 Judge Couch filed an opinion, and signed and filed a final decree. In the final decree the complaint of the husband for a limited divorce was dismissed, the wife was granted an absolute divorce against the husband on the ground of adultery; the wife was awarded an interest in Dawnrose in a share equal to twenty-five percent of its fair market value on December 10, 1971, and a share equal to twenty-five percent of the amount of the business checking account on December 10, 1971; the wife was awarded ownership of one half of the furnishings of the family residence; the wife was awarded sole ownership of a 1971 Mark IV Lincoln Continental automobile which was titled in both names; the husband was ordered to pay to the wife the sum of $700.00 a month as alimony; the wife was awarded custody of the ⁷⁰ minor child and the husband was ordered to pay the sum of $550.00 a month for support and maintenance of the child; and the husband was ordered to pay to the wife the sum of $1,000.00 for the cost of the litigation, in addition to the sum of $1,240.00 for the cost of retaining detectives. The husband took an appeal from the decree.

In his brief and argument here he contends: 1. The evidence was not sufficient to support the finding that he committed adultery in November and December 1971. 2. That even if the evidence was sufficient to prove adultery, the evidence also showed that it was condoned by the wife. 3. That the evidence did not justify the finding that there was a business partnership between the parties. 4.

That the evidence did not justify the award of alimony, child support, counsel fees and detectives fees. The wife filed a cross appeal from that part of the decree which awarded her a 25% rather than a 50% interest in the business known as Dawnrose, after finding that she was a partner in the business. She further asserts that even if the finding of partnership was in error, she was entitled to a 50% share in any event because the property was held as tenants by the entireties prior to severance of the tenancy by the divorce. We note that neither party appeals from those parts of the decree which gave custody of the minor child to the wife, and which awarded to the wife one half ownership of the furnishings of the family residence and sole ownership of the Lincoln Continental automobile.

Likewise neither party complains that with respect to certain personal property in the form of corporate securities, registered in the names of both as joint tenants or as tenants by the entireties, the decree makes no determination of ownership or division other than that effected by operation of law. We shall refer to additional pertinent facts as we discuss the issues. ⁷¹ The Divorce In her counter complaint the wife alleged that she had condoned acts of adultery committed by her husband up to October 1971, but that he had committed adultery in November and December 1971 which she had not condoned. She further alleged that the prior condoned adulteries were revived. In his answer the husband admitted those allegations, except as to lack of condonation.

He alleged that all alleged acts of adultery had been condoned. By his signed and sworn pleading the husband made condonation the only issue on the question of adultery as the wife’s ground for divorce. However, the chancellor heard the evidence and decided the issue of adultery on the facts. Testimony of private investigators engaged by the wife showed that on 17 November and on 1 December 1971 the husband was in his night club, called the Big Dipper, a part of the over-all business operation.

On those two evenings he paid particular attention to an unescorted young woman who had been described to the investigators by the wife and whom they referred to as Doreen. He sat with her and danced with her. One of the investigators said that the husband and Doreen were holding hands, that he placed his hand on her thigh, and that they kissed each other about the face and neck while dancing. The investigator related that on the 17 November occasion the husband left the table and went into his private office on the same floor.

A few minutes later the young woman left the building through the main exit and entered the office through an outside stair and doorway. One investigator remained outside and watched the stair while the other one remained in the night club. Slightly over an hour later the young woman left the office by way of the outside stair. On the 1 December occasion, after sitting at the table with the same young woman for some time, the husband left and entered his office.

About five minutes later the young woman entered the office by the same door. About forty five minutes later she came out. The investigator described in some detail the layout and ⁷² furnishings of the office, which included a full length sofa. In addition to the two doors already described, there was a third which went into a storage room and, through that, into a small bar which was physically separate from the night club area.

The chancellor concluded that the evidence showed both disposition and opportunity to commit adultery and, in the absence of any plausible explanation of that evidence, he inferred, as the evidence permitted him to do, that the husband had in fact committed adultery on those two occasions. The law defining the evidence necessary to permit an inference of adultery has been stated by the Court of Appeals frequently and clearly, and requires no further discussion. It is sufficient to repeat as a general statement what the Court of Appeals said in Dougherty v. Dougherty, 187 Md. 21 , 48 A. 2d 451 , at pages 27 and 28: “It is an established rule that the burden of proof in a suit for divorce is upon the complainant, and where adultery is charged the evidence must establish affirmatively that the alleged offense was committed. It is not necessary, however, to establish the charge of adultery by direct evidence of the commission of the act, for because of the clandestine nature of the offense it is rarely possible to obtain evidence of the commission of the act by the testimony of eyewitnesses.

The offense may be inferred from the circumstances if the inference is the only natural and logical deduction to be drawn therefrom. 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 circumstances in the case, the court then determines whether the evidence would convince an unprejudiced and cautious person of the guilt of the ⁷³ defendant. The permanent consequences of adultery are so injurious to th% parties that the court will not accept as sufficient proof of its commission anything less than evidence so clear, satisfactory and convincing as to raise in the mind of a reasonable and unprejudiced person a natural inference of guilt.

We do not consider the use of circumstantial evidence harsh or unreasonable, for it applies only to those who, by open disregard of the moral and social conventions and decencies of life, have shown themselves indifferent both to their marital obligations and to the opinion of others.” (Citations omitted). In Breault v. Breault, 250 Md. 173 , 242 A. 2d 116 , the Court of Appeals again stated and applied the same rule. Appellant husband argues that the evidence here did not meet the test. He says that the evidence by which the wife attempted to show public displays of affection, from which a disposition could be inferred, fell short of the mark, because in a night club atmosphere it was appropriate for the owner to be personally attentive to the guests.

He also argues that there was no evidence whatever to show an adulterous disposition on the part of the alleged paramour. While an indifference to the proprieties as manifested by public displays of intimacy or affection is often the basis for finding an adulterous disposition, it is by no means the only basis. In Abare v. Abare, 221 Md. 445 , 157 A. 2d 427 , there was no evidence of any such public display, but the Court referred to evidence of repeated visits of the alleged paramour to the husband’s home. It said that those visits “show abundant opportunity, and we think the circumstances of those visits are sufficient to warrant an inference of a disposition to commit adultery”.

The Court said further, at page 451: “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 ⁷⁴ offense charged, as well as to show ample opportunity to commit it.” See also Blankenship v. Blankenship, 239 Md. 498 , 212 A. 2d 294 , and Deckman v. Deckman, 15 Md. App. 553 , 292 A. 2d 112 . Thus it is clear that evidence of a disposition to commit adultery may be shown, not only by evidence of public displays of intimacy or affection or disregard of the proprieties, but by the very circumstances of the opportunity which the defendant spouse and alleged paramour cooperate in providing. It would fly in the face of reason to say that the disposition of the alleged paramour to commit adultery must in every case be shown by evidence more direct to that question than the evidence of participation in providing the opportunity. It may well happen that an alleged paramour is unidentified, and remains unidentifiable.

But as we said above, the very circumstances of the opportunity, made available with the cooperation and participation of the alleged paramour, may themselves be sufficient to show an adulterous disposition on the part of the alleged paramour as well as on the part of the defendant spouse. Merely because circumstantial evidence of disposition and opportunity may justify an inference of adultery does not mean that such an inference is compelled. The evidence may call for an explanation. If an explanation is given, its credibility is for the chancellor to determine.

Explanations given in Abare, supra, and Blankenship, supra, were not deemed credible. But in Barnes v. Barnes, 14 Md. App. 638 , 287 A. 2d 808 , the chancellor found the evidence sufficient to show both disposition and opportunity, and yet, on the basis of the explanatory testimony of both the husband and the alleged paramour, did not believe that they had in fact committed adultery. In affirming the decree denying the wife a divorce on the ground of adultery, this Court said, at page 647: “This case is another of those in which the atmosphere of the trial, the appearance and ⁷⁵ demeanor of the witnesses is invaluable in reaching a correct and just conclusion.” In the present case the evidence justified a finding of disposition and opportunity. There was no explanation, other than a flat denial that any of the material events occurred at all.

The credibility of the denial was for the chancellor. The permissible findings supported an inference of adultery. The chancellor was not clearly erroneous in finding that the husband committed adultery. Maryland Rule 1086.

There was evidence that on 8 December 1971 the wife learned through her attorney that the investigators had gathered evidence which he felt was sufficient to prove adultery. The husband argues that she knowingly condoned the alleged adulteries of 17 November and 1 December by engaging in sexual intercourse with him on the night of 9 December. The wife denied that sexual relations took place on 9 December, and testified that the last occasion was on 6 December. On this conflicting evidence the chancellor found that the last intercourse took place on 6 December, before the wife had knowledge amounting to more than a suspicion, of the adulteries upon which her claim for divorce was based.

He found that she had not condoned the adulteries. His finding was not clearly erroneous. The wife was entitled to an absolute divorce on the ground of adultery, and the husband’s complaint for a limited divorce on the ground of desertion was properly dismissed. The Business Mr. Gosman testified that he operated about five different types of businesses; a restaurant and night club, mainly a liquor business, a grocery store, a freezer meat business, and a music recording business, all under the name of Dawnrose.

The businesses are operated on property owned by the husband and wife as tenants by the entireties. He said that he operated as a sole proprietorship with himself as owner, and had always done so. He said that he had been employed for 12 years, until ⁷⁶ 1957, as a milk route driver for Sealtest Dairies. When the parties moved into their home in 1952, he started raising vegetables and chickens, and producing eggs.

He sold the products of this part time business on his route until 1957, when he resigned his employment and devoted full time to the egg and chicken and meat business. While the business was conducted from the home, he said his wife assisted by gathering eggs, selling eggs from the basement, and answering the telephone. The business was moved to its present location in 1961. He said that from that time his wife wanted nothing more to do with the business, although he agreed that on occasion she helped out by running errands, making deposits and writing checks while he was away, and in other ways on an infrequent basis.

He said that about two years earlier his wife and daughter had helped him one day by wrapping meat for freezing. It appears that the delivery routes for eggs, chickens, produce, and meat, the business which was operated from the home, were discontinued. The alcoholic beverage license was in the name of Mr. Gosman. Retail trade licenses were in both names.

He said that when he changed from selling farm produce to retail trade and first obtained the trader’s license, he thought it was required to be in both names because the property was in both names. The parties filed joint