Swoyer v. Swoyer

Oeetjtt, J., delivered the opinion of the Court. The parties to this appeal were married in the Hotel Waldorf in New York on August 28th, 1919. The appellee, Alfred P. Swoyer, was at that time a widower about fifty-one years old, with a grown daughter, Mrs. Dorothy Holán, of Philadelphia. He was in easy circumstances, he held a lucrative and important position, from which he received $27,000 a year, and he owned a farm known as the “Sandy Hill Earm” near Horth East in Cecil County, Maryland, which he took under the will of his first wife, who died in 1912.

The appellant, Edythe Morris Swoyer, born Helfenstein, who at that time was about twenty-six years of age, appears to have been a cultured and intelligent woman, and she too had some means, for at different times she advanced her husband, from her private funds, sums aggregating about $56,-000.00. The first years of their married life appear to have been, if not altogether happy, at least quiet and uneventful. Three children were born of the marriage, of whom two survive, Alfred P. Swoyer, Jr., aged six, and Edythe Allen Swoyer, aged four years. Eor a time the care of the children, the ²⁰ calls of business, and the home appear to have filled their lives, and while there were from time to time difficulties and differences, there was no irreparable breach in their relations prior to 1923.

As to their relations between 1923 and January, 1927, the evidence is conflicting. Swoyer said that although there were disputes they got along as well as “most married people,” but Mrs. Swoyer said that, while they lived together for the sake of the children and appearances, all marital relations between them had ceased and were never resumed after December, 1923. He ascribed their separation to her extravagance and to a complete and unjustified change in her feelings towards him. She said that his excessive drinking, his gambling, and his incessant demands on her for money, made it impossible for her to live with him.

But whatever the cause may have been, they did finally separate in January, 1927, and since that time have lived apart. On the 21st of July following their separation, Swoyer received a telephone call from a Mrs. Joseph Lane Flannigan, and, in consequence of information obtained from her, he instituted an investigation into the relations between his wife and Mrs. Flannigan’s husband, and as a result of that investigation, on October 18th, 1927, he filed the bill of complaint in this suit, in which he charged: “That the defendant made the acquaintance of a certain man named Flannigan of the Oity of New York, State of New York, and on a day or time and on divers days and times since the said marriage and prior to the time of the filing by your orator of this bill of complaint, the defendant committed the crime of adultery within the State of Maryland and elsewhere with the said Flannigan, who is also known as “Joe” and as “Mr. Lane,” and with divers other persons whose names to your orator are at this time unknown.” In that bill he prayed to be divorced a vinculo matrimonii from the defendant, and asked for the custody and guardianship of the two children. The defendant in due course answered the bill and denied the charge of adultery. On February 2nd, 1928, the appellee filed a supplemental bill, in which he charged that after the original ²¹ bill had been filed his wife had, on “divers days and times,”' “committed other adulteries with” the same Joseph Lane' Elannigan.

Those charges were also denied and on the issues, tendered by those pleadings the case was heard by the Circuit Court for Cecil County, which, on August 7th, 1928, entered a decree granting the appellee an absolute divorce, and awarding him without qualification the custody of the two children.. This appeal is from that decree. The first question presented by the appeal is whether the evidence before the trial court supported itsi finding that the. appellant was guilty of adultery. The evidence relating to that issue is. largely circumstantial, and the case turns raither upon the weight to be given to, and the inference to be drawn from, established facts, than upon their existence.

Except as to a few disputed facts,, therefore, it does not call for any extended or detailed discussion of the testimony, but it will be sufficient to- state such facts as were either admitted or undisputed, to weigh the evidence as to those disputed, and to' state our conclusions-as to the inferences to- be drawn from all facts which may be taken as established. It is undisputed that between August 22nd, 1927, and October 17th, 1927, Mrs. Swoyer and Elannigan on four different occasions, although occupying separate rooms, nevertheless registered as guests ait the Hotel Rennert in Baltimore City at the same time. It is also admitted that since December 29th, 1927, Elannigan has occupied an apartment at the Wyman Park Apartments on the same floor as- an apartment occupied by Mrs. Swoyer, her mother, and her children. Those associations, and the incidents and circumstances connected with them, are the main and essential facts upon which the appellee relies in support of his charge that the appellant committed adultery.

As in many similar cases, their meaning and significance depend very largely upon the antecedent history of the relations between the parties to them. If we accept her own statement, when Mrs. Swoyer met Elannigan in 1925, although she and her husband ostensibly lived together as husband 'and wife, all marital relations between ²² them had ceased in 1923, she had become disgusted with his personal habits and his continued importunities for money, .and her affection for him, if not dead, was at least languishing. There was an effort made in May, 1925, to restore their former relations, but it came to nothing. She had gone to Atlantic City with their children, one of whom had been ill, and he was to join her there.

While she was there she wrote him a number of natural and affectionate letters, which .are wholly inconsistent with her statement that they were then on bad terms, but when Swoyer arrived he was, she said, so intoxicated that that attempt at reconciliation fell through, and they went on as before.. While affairs were in that state between her and her husband, she met Flannigan, then a floor walker in Altman’s, a Yew York department store. Flannigan had been discovered by Mrs. Helfenstein, Mrs. Swoyer’s mother, some time before, when she had gone to the store to make some purchases and he had waited upon her, and, for some reason not disclosed by the record, she was very favorably impressed by him. When she visited the store he looked after her wants, they soon were on very friendly terms, she expressed the greatest confidence in him, they dined together several times, she thought he was a “gentleman,” and he spoke of her in his testimony as “Mother,” and in ordinary course through his friendship with her Flannigan met Mrs. Swoyer.

Judging him by his testimony, Flannigan is shifty, evasive, and unreliable, unconscious of the usual moral conventions, untruthful, and somewhat vain of the questionable notoriety incident to. his attentions to Mrs. Swoyer. Without any resources which he was willing to disclose^ except for some, money he said he “borrowed” from an aunt, he lives in idleness and ease in an expensive apartment, apart from his wife, whom he left under circumstances which indicate that he deserted her. The friendship between him and Mrs. Swoyer grew steadily closer until 1927, when he left his employment, ostensibly to take a position in Chicago1, although, in view •of his testimony and his subsequent conduct, it is apparent that he left it to come to Maryland where Mrs. Swoyer lived. ²³ His wife, Mrs. Dorothy W. Elannigan, testified that at Christmas in 1925 Mrs. Swoyer sent him two silk shirts and some neckties; that in January, 1926, she overheard a telephone conversation between Elannigan and some woman whom he addressed as “Edie,” and he informed that person that he would “phono” her, and that five minutes later he called Mrs. Swoyer’s. home (she was then living in Yew York), and talked for about a half or three quarters of an hour, and that she heard him say “Edie, dear, is Alfie around,” and “Yo, she is not around,” “Yo, dear, she is not around. Do not worry.” That when the witness, who was outside, came in, Elannigan told her he had been talking with his “sweetheart”; that -on January 29th, 1926, she. found in Flannigan’s overcoat pocket one of Swoyer’s cards, on which was written, in Flannigan’s handwriting, Swoyer’s home telephone number; that after several fruitless efforts she finally got Mrs. Swoyer at the number indicated on that card, and this conversation ensued: “I asked her if she knew that Mr. Fiannigan was married.

Mrs. Swoyer said, yes, she did. And I asked her if she thought it was the right thing for her to. be stepping out with Mr. Fiannigan. She said, Yes, she absolutely did. She said she felt the whole thing was just merely a lark. * * * A lark, and she said that the majority of women of today were running around, and I asked, her to please leave my husband alone, and she gave me her word that she would.

Q. Was there any talk about silk shirts and neckties on the previous Christmas, having been given yonr husband by her ? A. There was. I accused her of giving my husband silk shirts and neckties on the previous Christmas, and at first she said no, and when I told her that Mr. Fiannigan said so, she admitted she had”; that on Palm Sun-claw in the same year, while she was in the room, Fiannigan again called Mrs. Swoyer, and, while holding the receiver so. witness could hear, told Mrs. Swoyer that he and his wife were “through,” and she replied, “I am so happy.” She further testified that at different times she found in Flannigan’s pockets a receipt for a trunkful of silver made out to ²⁴ Mrs. Swoyer, a receipt for 'a lot of china made out to her, and the professional card of her lawyer. This testimony standing alone would be worth little, because it is more consistent with a conspiracy to blackmail than with the conduct of a man preparing to desert his wife to engage in a sordid amour.

But because of corroborating circumstances it must be given some weight, for the issue in the case is not why appellant committed adultery, but whether she did in fact commit it. Therefore, whether Flaunigan was treacherous or sincere in his conduct toward her cannot lessen her guilt, if in fact she did commit adultery with him. Returning to Mrs. Elannigan’s testimony, she said that on August 31st, 1926, she and her husband separated because of his “infatuation” for Mrs. Swoyer, but that they were reconciled on November 3d, 1926, and lived together until July 1st, 1927, when he left her finally, and she said •on direct examination that when he left he told her he would return on the following Monday, but when recalled she said he did not tell her he would return. A few days after that Elannigan, Mrs. Swoyer, and a Mr. Schlosstein, Mrs. Swoyer’s attorney, appeared at the •Sandy Hill Farm in Cecil County and, according to the testimony of Thomas S. Woods, who lived on the place and farmed it, Mrs. Swoyer told him that Elannigan was her New York lawyer, and she addressed him as “Joe.” He was again seen at the farm on or about the 21st of July and again on July 28th, 1927.

On the first two occasions he •only stayed for the day, but on the last, when Mrs. Helfen.stein also was there, he spent the night. Two explanations are given for Flannigan’s coming to Maryland, but none for his staying there. Mrs. Helfenstein said that conditions at the farm were “bad,” that she was unable to go down there and that, having learned that Elannigan intended to go to Chicago, she asked him if he would not go to the farm, report to her the conditions there, and render what assistance he could. In weighing this testimony, it may be noted that Mrs. Helfenstein had herself no ²⁵ interest in the farm, that it was improbable that Elannigan,, an employee in a department store, had any knowledge of farming, and that he not only went on that occasion, bnt twice later, and that on the first occasion, instead of returning to Yew York, he went to Baltimore.

Elannigan in his direct testimony told the same story as to why he first went to the farm, but he elaborated it. He said that Mrs. Helfenstein told him that Mrs. Swoyer was at the farm and that “nobody else was down there,” and she had nobody “to really look after the place.” And he repeated his statement that he had given up his employment in Yew York to take a position in Chicago. That he had any intention of going to Chicago at that time is upon the whole record highly improbable. Having testified that when he came to Baltimore he had no resources other than some $300; that he roomed at the Eennert Hotel; that he had worked for four weeks at $25 a week, and had done no other work; that he had “borrowed” $2,500 from an aunt, he gave on cross-examination the following testimony: “Q. But you are not doing anything in the meantime to earn anything ?

A. I wouldn’t say that. I have a position to go to. Q. You have what? A. I have a position to go to.

Q. Where? A. In Chicago. Q. With whom? A. That I do not care to disclose at the present time.

Q. Well, I won’t press the question anyhow at this time. As far as that goes, we are entitled to know. Why don’t you go, or why haven’t, you gone? A. Why haven’t I?

Q. Yes? A. As a matter of fact, the gentleman that has the position now was under contract, and it does not run out until a certain date.” In addition to the inherent infirmity of this testimony, Elannigan was contradicted by his wife, who said that he planned to go to Chicago in 1926 and not 1927, when he left her. And the testimony of Helen V. Dorn, who was the telephone operator at the Hotel Irving when Mr. and Mrs. Swoyer lived there in Yovembcr and December, 1926, and January, 1927, if true, would throw some light on not only his income, but also upon his reason for coming to Maryland. She testified that Elannigan would call up Mrs. Swoyer ²⁶ four or five times a day, and that she would at times call him; that the frequency of the calls aroused witness’ curiosity and she “listened in”; that Flannigan and Mrs. Swoyer appeared to be on the most intimate terms, that they addressed each other by familiar and endearing names, and that she made engagements to meet him outside of the hotel, and that witness actually saw her meet him on one occasion, and that several times she heard Mrs. Swoyer tell Flannigan “I have that fifty for you,” which the witness “took for granted was money.” It may be said that this testimony is of doubtful value; that the witness in listening to the conversation violated not only the rules of her employment, but of common decency, but it appears that what she did was sanctioned by her employer, and that her testimony is to some extent corroborated by the statements and conduct of the parties, as shown by other witnesses, some of whom at least are not impeached.

Mrs. Swoyer herself testified that she had in 1926 gone to a “movie” in New York with him, that she had taken lunch with him there, and on one occasion took dinner with him and her mother, and that she talked with him once in August and twice in September over the long distance telephone while she was in Cecil County and he in New York, and that she called him at his apartments as well as at the store at which he worked. She explained • that by saying that she wanted him to send her an ice box, but the manager of the store where he was employed said that it did not handle ice boxes or refrigerators of any kind, and it seems odd that she should have made so much of securing an ordinary article which she could have ordered from any well-equipped furniture store in Baltimore, New York or Philadelphia. It also appeared from Elannigan’s testimony that he met Mrs. Swoyer in the summer of 1927 in Hewark, New Jersey, and while, as will appear from the following extract, his testimony demonstrated his willingness to avoid facts, it was nevertheless uncontradicted, and for that reason must be given weight. On his cross-examination the following oc ²⁷ curred: “Have you ever been up in New Jersey with Mrs. Swoyer?

A. I have been in New Jersey. Q. With Mrs. Swoyer? A. I couldn’t say that, no. Q. Have you or not been up there with her in the last year ?

A. Ho, sir. Q. Ho, you say? A. I said no. Q. Have you ever been in Hewark, New Jersey ?

A. I have been in Hewark. Q. Have you ever been there with Mrs. Swoyer? A. I have seen her in Hew-ark. Q. When?

A. Last summer. Q. What part of last summer? A. The early part. * * * Mrs. Swoyer went to New York to see Mr. Simpson, I think, and she asked me if I would come up there to see what there was to it, that Mr. Swoyer had named me as co-respondent, or was going to. Q. When was that ?

A. Last summer. * * * Q. What hotel were you registered at in Hewark ? A. I was at a small little hotel. I do not know just where it was. Q. Give the name of it ?

A. I couldn’t remember. * * * Q. Was it the Robert Treat? A. That I was at? Q. Where Mrs. Swoyer was? A. I couldn’t say that.

Q. Did you see her at the Robert Treat ? A. I saw her in the lobby. Q. At the Robert Treat Hotel in Hewark, New Jersey? A. Yes.

Q. Did you take a room at the Robert Treat ? A. Did I ? Q. Mrs. Swoyer ? A. I do not know whether she did or not.

Q. Did you ? A. Ho, sir. Q. Did you take a room at any other hotel in Hewark? A. I did.” Much of the evidence relating to the facts to which we have referred is conflicting.

It