Thiess v. Thiess

Briscoe, J., delivered the opinion of the Court. The bill in this case was filed on the 12th of February, 1913, by a wife against her husband, for a divorce a vinculo matrimonii, on the ground of adultery. By the fourth paragraph of the bill, it is averred, that'the plaintiff ever since her marriage has conducted herself as a chaste, dutiful and affectionate wife, but that the defendant, Lambert H. Thiess, on divers occasions, has assaulted and beaten her, that, heretofore, to wit, on or about the eighth day of July, 1912, she discovered that her husband had been consorting with lewd and abandoned women and that from and after this date, she refused to live with him, and that her separation has continued since that date. By the fifth paragraph, it is averred, that on or about the eighth day of July, 1912, suspicions which she had previously entertained respecting the conduct of her husband were confirmed and on or about this date, she discovered that her husband had committed the crime o-f adultery with one Anna Vitak and other lewd and abandoned women whose names are unknown; that she has not lived with her husband since ²⁹⁴ the discovery of the adulteries and has not condoned or forgiven his offenses.

The bill then prays for a divorce a vinculo matrimonii, on the ground of adultery, the care and custody of the infant children, their support by the husband, permanent alimony and for general relief. On the 24th of February, 1913, the defendant answered the bill, denying the allegation that he had been guilty of the acts of adultery as charged in the bill and also denying each and all the material averments contained therein. By the fourth paragraph of the answer it is alleged that any straggles of the plaintiff -to support either herself or the children are entirely the result of her own wishes and determination, since on the date therein stated, this defendant was driven from the home that had been bought and paid for by the efforts of the defendant and given to the plaintiff, and at that time, he was informed by the plaintiff, that she wanted neither his presence, nor his support. That it has always been his desire to live with and support the plaintiff and his children and is now his desire, but that he is restrained from so doing by the plaintiff.

The fifth paragraph of the answer further avers, that in addition to the premises 2106 E. Madison street, which was bought by the defendant and given to the plaintiff sometime ago, that recently the plaintiff has acquired the premises 2122 E. Monument street where she is conducting a grocery store to advantage and profit. The ease was heard upon bill, answer and proof, and from a decree of the Circuit Court of Baltimore City granting an absolute divorce, permanent alimony and the custody of the children, this appeal has been taken. The plaintiff and defendant were married on the 22nd day of June, 1887, in the City of Baltimore and lived together as husband and wife, until the 8th day of July, 1912. Upon this last named date, after a violent and turbulent interview between the parties, resulting in an announcement ²⁹⁵ by the wife that she would not live with him any longer, the defendant left the home and they have not lived together since.

The issue of the marriage consists of live children, the oldest being about eighteen years old, and the youngest about eight. The single question in the case, is whether the charge of adultery as alleged in the plaintiff’s bill, is sustained by the proof, as disclosed by the record. In other words, whether the plaintiff has met the burden of proof required in such cases to entitle her to the relief sought by the bill. It is conceded, that there is no direct proof whatever of the commission of adulterous intercourse bel ween the defendant, and the co-respondent Anna Vitale, but it is contended, that there are such facts and circumstances proved by the record as to lead to the conclusion of guilt “by fair inference, as a necessary conclusion.” The general rules of law concerning cases of this character have been announced by the decisions of this Court, and cannot admit of any dispute.

Kremelberg v. Kremelberg, 52 Md. 553 ; Shufeldt v. Shufeldt, 86 Md. 529 ; Rasch v. Rasch 105 Md. 504 ; Robbins v. Robbins, 121 Md. 695 ; Marshall v. Marshall, 122 Md. 694 . In Kremelberg’s case, supra, this Court, following the rules established by the English Ecclesiastical Courts, said: “The burden of proof is upon the complainant, and the evidence must establish affirmatively that actual adultery was committed, since nothing less than the carnal act itself can lay the foundation of a divorce for adultery. “Direct proof, that is, the evidence of eye-witnesses, is not required, for such is the nature of the offense and the secret and clandestine manner in which it is committed, that proof of this kind is in most cases unattainable; yet where it is sought io he inferred from circumstances, the latter must lead to the conclusion of guilt by fair inference, as a necessary conclusion.” All of the decisions declare, and the text-wriiers hold, that the presumption of innocence