Smith v. Smith

Henderson, J., delivered the opinion of the Court. A wife appeals from a decree granting a divorce a vinculo to her husband and dismissing her cross bill. The trial court found that the appellant committed adultery in 1952, which was condoned by the husband but revived by the wife’s conduct in 1960. The court also found that her conduct constituted cruelty and constructive desertion, which justified the husband in leaving the marital home with the two children.

The husband’s account of the alleged adultery may be thus summarized. In April, 1952, the Smiths attended a Saturday night party given by their then neighbors and friends, the Clarks, and took their two children, then aged eleven and nine, who were put to bed in the Clarks’ bedroom upstairs. When confronted with evidence that their son had been confined to their home at that time because of a serious automobile accident, he later testified that it must have been in February or March. There was considerable drinking at the party, which was attended by several other couples, including the Hogans.

Mr. Smith testified that late in the evening Mrs. Hogan began to look for her husband, and he looked for his wife. He found her in the recreation room in the basement in the act of intercourse with Mr. Hogan. He asked them to desist, but they did not comply until after a second request. He insisted that his wife leave, and they took the children and went home.

The next day they went to the Clarks to apologize and retrieve her undergarments. They continued to live together, however, until 1960. The husband testified that the incident in the recreation room had been observed by Mr. and Mrs. Clark and by another guest. In an effort to corroborate his story, he took the ²⁸⁵ depositions of Mr. and Mrs. Clark, who now reside in Virginia.

However, they both denied that any such incident ever took place. Mr. Clark declared that if it had, he would certainly not have allowed the guilty parties to enter his home again. Both the Clarks denied that the Smiths called the next day for any purpose. They continued on friendly terms with both the Smiths and the Hogans.

In a further effort at corroboration, the husband called the two children. The girl’s story was that on one occasion when she was in bed with her brother at the Clarks’ home, she became aware of a man and a woman in the room whom she could not identify. She saw them get up from a cot at the foot of the bed and embrace and kiss as they left the room. The light was out in the room, but there was a light in the hall.

The man seemed to be taller than her father, and she thought the woman’s laugh was like her mother’s. Her brother recalled the incident but could not say that the woman was his mother. The daughter admitted she did not mention the incident to her father until after the separation in 1960. Mrs. Smith denied that she had ever committed adultery with M'r.

Hogan. She testified that on the two occasions when they took the children to the Clarks’ home, her daughter was put to bed with the Clarks’ daughter upstairs, and her son with the Clarks’ son downstairs. She denied that she ever went into the upstairs bedroom with Hogan or any other man except her husband. She recalled that a man named Hogan had been at one of the Clarks’ parties, and she also recalled that he had come to a New Year’s Eve party at the Smiths’ home in 1958 with Mr. Clark.

It is settled law that the testimony of the plaintiff in a divorce suit must be corroborated. Maryland Rule 1190 f; Code (1957), Art. 35, sec. 4. Corroboration must extend to every element necessary to justify the relief sought. Hodges v. Hodges, 213 Md. 322, 326 .

It cannot be dispensed with, although in contested cases it may be slight. Zulauf v. Zulauf, 218 Md. 99, 107 . In the instant case there is no testimony at all to corroborate the husband’s testimony that he witnessed an act of intercourse by his wife with Hogan. Even if we accept the ²⁸⁶ daughter’s testimony that she identified her mother by her laugh and that her mother embraced and kissed a man not her father on one occasion, there is no evidence that the man was Hogan.

There is no evidence that Mrs. Smith had ever met Hogan before or that she had an adulterous disposition towards him. There is no evidence that Hogan, a married man and a stranger, had an adulterous disposition towards her. Something more than mere suspicion or indiscretion is necessary to overcome the presumption of innocence. Cf.

Pohzehl v. Pohzehl, 205 Md. 395, 405 , and Schriver v. Schriver, 185 Md. 227, 241 . The circumstances must be such as to lead a reasonable and just man to the conclusion of misconduct, although adverse inferences may be drawn from evidence of disposition and opportunity. Cf. Abare v. Abare, 221 Md. 445, 450 .

In the instant case the opportunity in an open recreation room