Sami v. Sami

Powers, J., delivered the opinion of the Court. We deal here with three separate appeals, consolidated in this Court for briefs and argument, all arising from decrees or orders entered in a single equity case in the Circuit Court for Montgomery County. The case there was initiated by Helen Adams Sami, the appellant here, against her husband, Mohammad Sami, the appellee. The contentions on appeal involve principally the divorce and child custody granted to Mr. Sami on his counter complaint, but relate as well to other orders entered before and after the decree.

A review of the voluminous record in this case reveals an almost incredible history of marital warfare, with skirmishes occurring up and down the eastern seaboard of ¹⁶⁴ this country, as well as abroad. The parties have engaged in litigation in the courts of Maryland and Florida. A comprehensive recital of facts is not necessary, but we shall refer to such of the facts as are relevant to the conclusions we reach on the issues we find it necessary to decide. Mr. Sami, a citizen of Afghanistan, was employed by an international organization.

The parties were married in Philadelphia in 1965, and lived, with their two children, in Montgomery County. A complaint for divorce and other relief, filed by Mr. Sami in September 1973, was dropped by agreement in November, with' a recital that the parties had become reconciled. In early December 1973 Mr. Sami told his wife that he wished to take the children to New York for a few days for Christmas shopping.' About a week later Mrs. Sami learned that her husband had departed from New York with the children, headed for Afghanistan. She and her brother intercepted the party at Beirut, Lebanon.

The children were taken to Florida, and it appears from the record that they have lived there with their mother ever since that time. The present case began with a bill of complaint filed by Mrs. Sami in the Circuit Court for Montgomery County on 4 January 1974. She prayed for a limited divorce, custody of the children, child support, alimony, and counsel fees and costs. By an amendment, she alleged that there were disputes over the ownership of personal property, and prayed that the court make a proper disposition of the personal property.

Mr. Sami countered with a complaint asking for a divorce, custody of the children, and other relief. Among the numerous pleadings, amended pleadings, motions, petitions, orders, and other preliminaries to trial was an assertion by Mrs. Sami of a decree of a Florida court granting custody of the children to her. Also in the record is an order finding Mrs. Sami in contempt of the Circuit Court for Montgomery County for failing to obey an order that she have the children present in that court for a hearing on custody pendente lite. Before the trial on the merits began, on 24 September ¹⁶⁵ 1974, Mrs. Sami withdrew, with leave of court, all of her prayers except those relating to child custody, and for general relief.

The entire record of the Florida custody proceeding, which we shall descrihe in more detail later, was received in evidence. In his subsequent opinion the chancellor referred to the issue thus raised, as follows: “It developed at the hearing that Mr. Sami had instituted habeas corpus proceedings in Florida in an effort to enforce this Court’s pendente lite order of February 8, 1974, awarding him custody of the children. He was unsuccessful, however, and the children’s custody under the order of the Circuit Court for Broward County, Florida, remains in Mrs. Sami. “Plaintiff argued that this settled the question of custody and that this Court in effect had no jurisdiction to rule thereon but we disagreed. It was pointed out that Mrs. Sami had invoked the jurisdiction of this Court by filing her Bill of Complaint for divorce and child custody.

The fact that she thereafter removed herself and the children to Florida did not divest this Court of jurisdiction to determine the issue of child custody. Article 16, Section 66 (f).” Mr. Sami testified at the trial, and offered evidence through numerous other witnesses. We need say only that the evidence abundantly supported the chancellor’s findings that Mrs. Sami had committed adultery, and, with one exception which we shall discuss later, that the best interest and welfare of the children would be served by having their custody placed with their father. At the close of the testimony counsel for Mrs. Sami represented to the court that a witness who had worked as a maid for Mr. Sami, and had lived in the home, was available to give testimony which would show that on several occasions in 1974 Mr. Sami had committed adultery.

At the request of counsel the chancellor called the witness, Flor Easterlin, as the court’s witness. She was examined ¹⁶⁶ preliminarily by the chancellor, and was cross examined by counsel for each of the parties. In his memorandum the chancellor referred to some of the testimony of Mrs. Easterlin. With respect to its place in the case, and its effect upon his conclusions, the chancellor said: “The plaintiff did not plead recrimination.

The Court consented to hear the testimony of Mrs. Easterlin pursuant to Rule 521 on the ground there is manifest duty to deny a divorce where it appears to the Court, the plaintiff or moving party is guilty of a recriminatory offense. Abare v. Abare, 221 Md. 445 . “It has often been said that where adultery is charged the evidence must establish affirmatively that the offense was committed. It has also been said that when a charge involving moral turpitude is imputed in a civil case something more than preponderance of evidence must be produced so that the proof is clear and satisfactory. Stenger v. Stenger, 14 Md. App. 232 ; German v. German, 137 Md. 424 .

It has also been noted that the defense of recrimination must be established as firmly as when alleged by a complaining party. Stenger v. Stenger, supra, at page 240. The Court stated also in the Stenger case at page 240: ‘For the purposes of our decision we will assume, without deciding, that corroboration is necessary to establish adultery as a recriminatory bar to an absolute divorce.’ “On the sketchy and uncorroborated testimony of Mrs. Easterlin, we cannot say that adultery has been established as a recriminatory bar to Mr. Sami’s prayer for an absolute divorce. Consequently, we will award an a vinculo divorce to Mr. Sami on the ground of his wife’s proven adultery.” ¹⁶⁷ The Defense of Recrimination in Divorce Cases The doctrine of recrimination is well established in the law governing divorce in Maryland.

An incisive discussion of the doctrine as construed and applied in this jurisdiction is reported in Courson v. Courson, 208 Md. 171 , 117 A. 2d 850 (1955). There, at 174, the Court of Appeals said: “Recrimination is generally defined as a rule or doctrine which precludes one spouse from obtaining a divorce from the other, where the spouse seeking a divorce has himself or herself been guilty of conduct which would entitle the opposite spouse to a divorce. If both spouses were guilty of uncondoned adultery, the ecclesiastical courts, following the Mosaic law, would not grant relief by way of divorce to either of them. Almost all of the states follow this view and some, indeed most, go further.” At 175, the Court noted that the provisions and policies of the law as announced in its own cases forbid divorce “to either of two spouses, both of whom have committed acts which constitute grounds for divorce under the statute, even though the acts are different . . . .” The Court further observed: “In this State, too, recrimination need not be specially pleaded nor relied on, but if it appears to the chancellor that the complainant is guilty of recrimination, it is not only his right but his duty to refuse the divorce.” Over a decade after its decision in Courson , the Court of Appeals again reviewed the viability of the doctrine of recrimination in this State, and found it to be alive and well.

In Matakieff v. Matakieff, 246 Md. 23 , 226 A. 2d 887 (1967), the wife sued for divorce alleging desertion by the husband. He in turn filed a cross bill charging the wife with adultery. The chancellor granted the wife a divorce a vinculo. The Court of Appeals reversed. ¹⁶⁸ The Court concluded that the evidence justified the chancellor’s finding the husband guilty of desertion.

But the Court found itself constrained by the doctrine of recrimination from affirming the decree. At 35, the Court said: “However, we must hold that the chancellor erred in granting a decree of divorce a vinculo matrimonii in favor of the appellee against the appellant for the reason that the case at bar presents the matter of recrimination working to the disfavor of the adversaries. Both the husband and wife are guilty of marital offenses of equal magnitude which precludes either spouse from obtaining a divorce from the other. Each has proven the other party guilty of marital offenses which would have warranted a decree a vinculo matrimonii being granted in their favor, if it had not been for their own dereliction. “The issue of recrimination in the case at bar is controlled by Courson v. Courson, 208 Md. 171 , 117 A. 2d 850 (1955), a case wherein Judge Hammond (now Chief Judge), writing the opinion for the Court, included a comprehensive analysis of the legal effect of recrimination in divorce proceedings in Maryland.” More recently the continued applicability of the doctrine of recrimination in culpatory divorce cases was affirmed by this Court.

In Zell v. Zell, 12 Md. App. 563 , 280 A. 2d 22 (1971), the husband filed for divorce on the ground of voluntary separation, Art. 16, § 24, then amended his bill to include an allegation of the wife’s adultery. The chancellor granted the husband a divorce a vinculo and the wife appealed. She argued that the decree was barred by proof of the husband’s adultery. At 566, this Court said: “It is entirely possible, as argued by appellant, that the Chancellor did base his decree upon the wife’s adultery and if there were no other evidence in the case than the wife’s adultery as a ground for divorce, we would be compelled to set aside the ¹⁶⁹ decree under the doctrine of recrimination because of the proof of the husband’s adultery, technical or otherwise.

See Nelson, Divorce and Annulments (2d ed.) Sec. 5.02. The doctrine of recrimination is still alive in this State and under it either spouse is precluded from obtaining a divorce from the other where each is guilty of a culpatory marital offense which would entitle the other to a divorce a vinculo matrimonii. See Matakieff v. Matakieff, 246 Md. 23, 35 ; Courson v. Courson, 208 Md. 171 .” But we went on to observe that recrimination is not available as a defense to a suit based on the statute permitting divorce founded on voluntary separation. See also Flanagan v. Flanagan, 14 Md. App. 648, 655 , 288 A. 2d 225 (1972).

Nor is the defense of recrimination based on the commission of adultery by the party seeking the divorce any less effective because his adultery occurred later. The Court of Appeals said in Dougherty v. Dougherty, 187 Md. 21 , 48 A. 2d 451 (1946), at 31: “The law is established that a husband who has committed adultery is absolutely barred from a divorce on the ground of adultery or any other matrimonial offense committed by his wife, even though he may have committed the adultery after he left his wife on discovering her offense.” The nature of evidence required to prove adultery in divorce cases was discussed at length in Dougherty v. Dougherty, supra, where the Court of Appeals said, at 27-28: “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 ¹⁷⁰ 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.” More recently, and perhaps more succinctly, the Court said, in Breault v. Breault, 250 Md. 173 , 242 A. 2d 116 (1968), at 178: “It is the established law of this state that where divorce is sought on the ground of adultery that the adultery may be shown by circumstantial evidence and that an actual act of adultery need not be witnessed. [Citations omitted.] However, to establish 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. [Citations omitted.]” Whether asserted as a defense or as a ground for relief, when adultery is the issue in a civil case the elements to be proved and the standards of proof are the same. Abare v. Abare, 221 Md. 445 , 157 A. 2d 427 (1960); Burger v. Burger, 204 Md. 495 , 104 A. 2d 923 (1954); Dougherty v. Dougherty, supra. The present rule relating to corroboration in divorce cases is found in Code, Courts Art., § 10-901. It applies only to the testimony of the plaintiff (or the counter plaintiff).

Testimony of a defendant or of any non-party stands the same in divorce cases as in any other case. The chancellor characterized the testimony of Mrs. Easterlin as “sketchy and uncorroborated”. He cited and quoted from Stenger v. Stenger, 14 Md. App. 232 , 286 A. 2d 552 (1972) where we said, at 240: “For the purposes of our decision we will assume, without deciding, that corroboration is necessary to ¹⁷¹ establish adultery as a recriminatory bar to an absolute divorce.” Although adultery was not the question involved, we said in Binder v. Binder, 16 Md. App. 404 , 297 A. 2d 293 (1972), at 410: “We should point out that a party who asserts an affirmative defense, but does not become a cross plaintiff seeking affirmative relief, is not subject to the statute requiring corroboration.” To the extent that he construed the law as requiring corroboration of Mrs. Easterlin’s testimony, we hold that the chancellor erred. To the extent that he rejected her testimony because he considered it sketchy or otherwise insufficient, we hold that he was clearly erroneous.

We note too that there was no intimation in the opinion that the testimony was untruthful or biased. Mrs. Easterlin, a 47 year old housekeeper, was a native of Chile, and had worked for some years for her embassy. If her testimony was sometimes less than clear, the reason may well have been her limited capacity to express herself in the English language. If her testimony exhibited any bias, it was in favor of Mr. Sami.

She worked for Mr. Sami for a month in the Fall of 1973, when the children were there, and for four months, April to July, in 1974, when the children were not there. Under questioning by the court Mrs. Easterlin related numerous occasions when Mr. Sami had a guest or guests in the house. Many of them appeared to be perfectly proper social occasions. For example: “Q What can you