McKim v. McKim

Bruñe, C. J., delivered the opinion of the Court. Lucy T. McKim, the appellant, filed a bill of complaint in the Circuit Court for Baltimore County for a divorce a vinculo matrimonii from Eugene McKim, the appellee, based on his alleged adulterous conduct. The Chancellor not finding “sufficient and clear and convincing proof of adultery” dismissed the bill. On this appeal the appellant claims that he erred in two respects, first, in holding that the evidence was insufficient to sustain a finding that the appellee had committed adultery, and second, in stating (by way of comment, but not as the basis of the court’s ultimate decision) that the appellant had condoned the appellee’s adulterous conduct by her continuing to live with him after she believed that he had committed adultery, but did not then have knowledge of it.

The appellant and appellee were married in September, 1940, the marriage did not run smoothly and they separated several times between 1951 (or thereabout) and September, ³¹³ 1958, when the wife left. Later in that month she filed a bill for divorce a mensa et thoro on the ground of desertion. This bill was thereafter dismissed without prejudice and the present litigation was instituted. The only charge pressed by the wife on this appeal is that of adultery.

The appellant’s brother testified that one night some eight or nine years before the trial (which was in 1960) he and the appellee “double dated” two women, the companion of the appellee being an unidentified married woman with whom the appellee had had a “prolonged relationship” or “affair” lasting for six or seven months (but not further described), that some kissing and love making took place on the night in question between the appellee and this women while the two couples were in an automobile and that the appellee thereafter took this woman into his home, which was unoccupied by other persons at the time. He further testified that they remained there for some thirty minutes, during which the house remained unlighted, that at the end of that time the witness and his companion entered the house and that at that time, “you could see that there definitely had been an affair.” The physical facts which the witness referred to in support of this observation were that “the clothes [were] all wrinkled up” and that “the girl’s hair was messed up.” The husband abandoned an attempt to obtain a dismissal of the bill at the conclusion of the plaintiff’s case (see Phillips v. Phillips, 215 Md. 28 , 135 A. 2d 849 ) and testified in his own behalf. He was not questioned and made no statement whatever about the incident with regard to which his brother-in-law had testified. That testimony was not contradicted, though the Chancellor was, of course, not bound to believe it.

The Chancellor’s view with regard to that testimony is summarized in these