McFrederick v. McFrederick

Parke, J., delivered the opinion of the Court. Charles H. McFrederiek and Effie M. McFrederiek were married on April 14th, 1915, and lived together, without having -any children, until they separated in August, 1924, because of their marital differences. They entered into an agreement under seal on August 25th, 1924, which adjusted their respective property rights and bound the husband to pay the wife the weekly sum of $12.50 for her maintenance and support so long as they should live apart. The agreement concluded with the declaration that it should not prejudice the rights of either party, if grounds should exist for a divorce.

The husband and wife continued to live apart, and on April 2nd, 1929, the husband began proceedings to obtain an absolute divorce on the ground of adultery, and a release from any further obligation under the agreement. The wife answered with a denial of the material allegations and filed a cross-bill charging cruelty, abandonment, and adultery, and praying for temporary and permanent alimony, counsel fees-, and general relief. The reply of the- husband to the cross-bill was a complete denial of any wrongful conduct, and an averment that they had separated by agreement. After the parties were at issue, testimony was taken before ⁹³ the chancellor, who dismissed the complaint of the wife and granted the husband a divorce a, vinculo' matrimonii, and released the husband from all further obligations under the contract.

The appeal is by the wife from the decree. There is no question of abandonment in this case, as the ■couple separated by common consent. 1 Bishop on Marriage ■and Divorce (2nd Ed.), sec. 1282. Nor is there any collusion in connection with the pending questions, as both deny what the other charges, and contest every point. The testimony is conflicting, and before either spouse may have relief he or she must establish by the clear preponderance ■of the testimony the infidelity of the other.

In meeting this burden of proof, the carnal act must be duly shown by clear, positive, and satisfactory evidence, with due regard, however, to the peculiarity of the offense, since adultery is usually an act done under cover of darkness and secrecy and in which the parties are seldom surprised. These circumstances are pointed out in Bishop on Marriage and Divorce, and attention is called to the facts that the evidence of time and place is often indistinct and that the proof is generally eircum.stantial. Volume 2, secs. 1350-1351, 1354. With these principles of proof in mind, the record has been read and pondered, and a conclusion formed.

The court is in agreement with the chancellor that the wife was guilty of adultery. Her paramour testified to their intimacy and their frequent criminal intercourse. She admitted a long-continued association but denied all wrongful conduct, and the testimony disclosed that their present relations are unfriendly because of her action to recover money which she had loaned the corespondent. After giving due consideration to these circumstances and the fact that the principal witness is a paramour, the opportunities are shown to have been so numerous, and the testimony of the man is so specific and unartificial, and so corroborated by disinterested witnesses in many of its material particulars, and not ■contradicted in others which were susceptible of refutation •if untrue, that the wife’s infidelity is clearly established. ⁹⁴ The husband admitted he knew the married woman with whom he was said to have had criminal intercourse) and the woman was franker in disclosing a friendly association; but they both denied their relations ever were illicit.

Mrs. McFrederick observed her husband’s familiarity with the woman and their seeking each other’s company and