Sterling v. Sterling

Digges, J., delivered the opinion of the Court. This case contains two appeals in one record. The bill of complaint was filed in the Circuit Court for Somerset County on June 30th, 1922, by Gordon Sterling, the .appellee, against Olevia Sterling, bis wife, tbe appellant, in which it is alleged that tbe defendant, Olevia Sterling, on divers days and times ⁶³³ since the marriage, to wit: between the month of September, 1921, and the filing of the bill of complaint has been guilty of the crime of adultery with one Willie Mason, alias “Jack” Mason, in said Somerset County, State of Maryland; that the complainant has not cohabited with the defendant since he has discovered her said adulteries. The prayer of the bill is, that he may be divorced a vinculo matrimonii from the said defendant, Olevia Sterling.

On July 10th, 1922, the defendant by her attorneys, Miles & Myers, filed her petition in said court praying for alimony pendente lite and counsel foes; whereupon the court passed a conditional order allowing same. Subsequently the said attorneys filed their petition and “Exhibit A,” alleging that the defendant Olevia Sterling desired to abandon her defense, and asked leave to withdraw the petition of July 10th filed by them on behalf of the defendant, and that their appearance be stricken from the record. Exhibit A referred to is as. follows: “Crisfield, Md., July 24th, 1922. “Geo. Myers, “Princess Anne, Md. “Dear Sir: “In regards to the case I am going to drop proceedings.

My husband says he is willing to let me have my furniture, so it isn’t necessary to proceed further. “Sincerely, “Mrs. Olevia Sterling, “Crisfield, Md.” 'On August 1st, 1922, the court passed a decree pro confesso against the defendant, Olevia Sterling, with leave to the complainant to take testimony in support of the allegations of his bill. The testimony on behalf of the complainant was taken ex parte and filed November 1st, 1922. Later, on January 8th, 1923, upon the petition of the defendant, through new attorneys, she was given leave to answer the bill of complaint, to re-call the complainant’s witnesses for cross- ⁶³⁴ examination, and with leave to ¡both parties to take such further testimony as they might desire. On the above date the defendant also filed her answer, in which she denies the adultery alleged in the bill of complaint, and alleges that after June 30th, 1922, the day on which the bill of complaint was filed, and until on or about August 7th, 1922, she and the complainant had lived together in their home, and during that period had cohabited as husband and wife.

After the taking of testimony by both parties, and cross-examination, by counsel for the defendant, of the witnesses, who had previously testified on behalf of the complainant, the count passed a decree divorcing a vinculo matrimonii the complainant, Gordon Sterling, from the defendant, Olevia Sterling. Ero-m this decree the defendant, Olevia Sterling, has appealed. This constitutes- the first appeal. The second appeal is also by the defendant, Olevia Sterling, from an order of the same court, dated -September 20th, 1923, dismissing the petition of the defendant, in which the said defendant prayed an allowance for costs in the Court of Appeals and counsel fee for prosecuting her appeal in said Co-urt, also a continuance of alimony pending, the appeal.

At the time the testimony was taken the complainant, Gordon Sterling, was fifty-three and his wife, Olevia Sterling, thirty-nine years of age. They were- married on August 28th, 1900, and so- far as the record discloses had lived together contented and hap-py as husband and wife, in the home provided by and belonging to the husband, for a period of over twenty years, or until some time in September, 1921. They had one child, a daughter, Grace, who in the early p-art of 1921 married the said Willie or Jack Mason, the corespondent named in the bill of complaint. After the marriage of the daughter, Grace, she and her husband made their home with her parents, and continued to live with them until Grace was taken to the hospital in -Ofis-field, about six weeks prior to her death, which occurred on -September 18th, 1921.

During the time the daughter Was in the hospital the son-in-law, Willie or Jack Mason, remained in the home of ⁶³⁵ his wife’s parents and continued to stay there for a period of about two weeks after his wife’s death. The law governing this class of cases is well settled, and has been laid down and often repeated in the former decisions of this 'Court. The single question for our decision is whether the charge of adultery, as alleged in the bill of complaint, is sustained by the proof as disclosed by the record. It is conceded that there is no direct proof of the commission of the adulterous intercourse between the defendant, Olevia Sterling, and the co-respondent, Willie or Jack Mason.

In divorce cases, where the alleged cause is adultery, if is exceptional to find testimony of witnesses directly to the act of illicit intercourse by the offending spouse. The nature of the act is such that it is usually accomplished in a secret and clandestine manner, and rarely in the presence of an eye witness. As above stated, there is no direct proof in this case of the adultery charged, nor is such proof necessary; the law does not require proof of the adulterous act beyond a reasonable doubt. The burden of proof is on the complainant, and ho must prove the facts upon which the charge rests with certainty, and the evidence of these facts must be clear and convincing, but when the facts and circumstances surrounding a particular case axe so established, the court will draw from them such inferences as the every-day experience and observation of mankind will justly warrant.

This same principle has been repeatedly stated and applied by this Court. Kremelberg v. Kremelberg, 52 Md. 553 ; McCleary v. McCleary, 140 Md. 659; Thiess v. Thiess, 124 Md. 292 ; Pattison v. Pattison, 132 Md. 362 ; German v. German, 137 Md. 424 . In Kremelberg v. Kremelberg, supra, Judge Robinson, speaking for this Court, adopts the language used in the case of Loveden v. Loveden, 4 Eng. Ecc. 461, as follows: “that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; ⁶³⁶ for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations ; neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man.

The rational and legal inferences must be the same.” In the case of Shufeldt, v. Shufeldt, 86 Md. 528 , Judge Boyd thus states the rule: “It is not necessary in cases of this character that there be any one act proved which is conclusive of guilt, but the Court must consider the opportunity for the commision of the act, the conduct of the parties, and all circumstances, and then determine from the whole testimony whether it should convince unprejudiced and cautious persons of the guilt of the parties.” And it was said by Judge Urner in the case of Dicus v. Dicus, 131 Md. 89 : “It is not necessary, and it is usually impossible, that direct evidence of the fact of adultery shall be offered. The offense may be proven by circumstances which justify the inference of guilt.” In R. C. L., vol. 9, page 329, it is said: “The courts must, perforce, take such evidence as the nature of the case permits — circumstantial, direct or positive — and bring to bear upon it the experiences and observations of life, and thus weighing it with prudence and care, give effect to its just preponderance in weighing the effect of such evidence that it must be so clear and strong as to carry conviction of the truth of the charge, and that the circumstances must lead to it not only by fair inference, but as a necessary conclusion. When, however, adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, together with comparatively slight circumstances showing guilt, may be sufficient to justify the irrferexice that criminal intercourse has actually taken place.” In the recent case of Fassett v. Fassett, 143 Md. 46 , Judge Offutt said: “Naturally, there can be no fixed or rigid rule for measuring the force or the effect of the facts established in a case of this character, since the significance ⁶³⁷ of each of a group of facts depends so largely upon its relation to the other facts which accompany it, and conduct, which under certain circumstances may seem innocent and harmless, could under other circumstances justify a more serious and sinister inference. And while, as we have repeatedly stated, in cases involving the charge of adultery the complainant must establish the facts upon which the charge rests by clear, convincing and satisfactory proof, yet when those facts are thus established the Court will draw from them all such material and obvious inferences conveyed by them as are consistent with common experience.” It will be noted that the adultery here charged is between the defendant, Olevia Sterling, and her son-in-law.

Conduct between people bearing this relationship' must be viewed with the relationship in mind, and circumstances which might be sufficient to lead to a conclusive inference of guilt in respect to parties bearing’ a different relationship would be entirely harmless and innocent and perfectly proper conduct between a woman and her son-in-law. The court below was convinced that adultery had been committed between the defendant and the co-respondent, and after a careful examination of a lengthy record and giving full effect to the relationship' between the parties, we are unable to say that the court below erred. A careful examination of the testimony will convince an unprejudiced and cautious mind that the following facts have been conclusively established; that the complainant and defendant had lived together in peace and contentment for more than twenty years without the slightest evidence of domestic trouble; that the co-respondent came into their home as their son-in-law, and within a few months after his entry the first rift in their marital relations became evident; that the complainant became suspicious of the relations existing between his wife and his son-in-law before his daughter was taken to the hospital, and during the time of her stay in the hospital and up to the time of her death his suspicions were strengthened by the observance of the conduct of his ⁶³⁸ wife and son-in-law toward each other; that after the death of his daughter the son-in-law continued to live with his wife’s parents about two weeks, and during this period the complainant saw the defendant and co-respondent in a compromising attitude' on the porch of their home; that as a result of his suspicion he ordered the co-respondent to leave his house, and that after the co-respondent left the house of the complainant the defendant continued her clandestine meetings with the co-respondent over the repeated objections of her husband, often being seen in an automobile with the co-respondent and remaining away from her husband’s home until late at night, frequently after midnight; that when the complainant would remonstrate with her in respect-to these excursions with the co-respondent, the defendant would deliberately deny that she had been out with Mason, and this after she had been seen on many occasions with the co-respondent by the complainant and other witnesses; that this condition continued until the 29th day of May, 1922, at or -about which time the complainant told his wife that she must give up Mason, or she could not longer live with him, the complainant. The complainant testified that his wife’s answer to. this proposal was, that “she intended to go with Mason just- as long as she pleased, and that she never proposed to give him up> as long as she lived and he lived.” This conversation took place at the home of the complainant in the presence and hearing of the witness George E. Merrill,