Vogts v. Vogts

Henderson, J., delivered the opinion of the Court. James E. Vogts, Jr., filed a bill of complaint in the Circuit Court for Montgomery County on July 15, 1946, charging his wife with adultery, and seeking custody ³¹³ of their two minor children. A decree pro confesso was entered on September 26, 1946, and testimony was taken before an examiner. Thereafter, on October 11, 1946, the decree was stricken out, on petition, and the appellant filed an answer denying adultery and a cross-bill charging desertion and praying custody of the children.

Testimony on her behalf was taken before the Examiner, and the whole transcript submitted to the chancellor. The appeal is from the decree granting a divorce a vinculo to the husband and awarding him custody of the children. The parties to this cause were married on March 23, 1936, when he was 17 years of age, and she was 18. The parties did not live together as man and wife after the marriage for a period of more than five years.

He attended school and college, and she resided at her parents’ home with their child. He contributed nothing towards their support. She obtained employment in Washington. On October 19, 1941, at the insistence of his parents, they purchased a house, subject to a mortgage, at Silver Spring and resided there together; a second child was born in 1942.

They lived together until October 23, 1944, when he was inducted into military service. While he was away, the wife again obtained employment in Washington, first with the Dupont Company, and then in A-2 Intelligence of the Strategic Air Command, at a salary of some $2,400 a year. She also received an allotment from her husband. The appellee was discharged from military service on April 14, 1946, and came home.

There was some discussion as to a divorce. Neither party appeared eager to resume marital relations, but in the end they resumed cohabitation, which was continued for about two weeks. He complained that she stayed out at nights. He employed a detective to procure evidence of her adultery.

After working on the case for a week, the detective reported no progress and was dismissed. The husband found in the house some postcards addressed to his wife from a Colonel Gordon Austin. They were signed “Gordon” and contained noth ³¹⁴ ing of an incriminating nature except the statement “miss you.” There were also pictures of Austin about the house. When he demanded an explanation, she told him she had met Austin and had been on parties with him; that she “liked him a lot,” according to her statement, that she “was madly in love with him,” according to his statement.

The appellee testified (the appellant denied) that she admitted having committed adultery with Austin. After some further discussion about a divorce, he took his clothes and left the house on May 1, 1946, and went to live with his parents. A few weeks later she moved to her parents’ house, with the children, and he returned to the house where he lived for a while and then rented it. Since the separation he claims that he has paid $300 toward the support of the children (she testified that he paid only $65).

The appellee produced three neighbors as witnesses. They testified that Mrs. Vogts often had noisy drinking parties in her house after her husband went in the army, and that Austin was frequently there. One of them testified that he saw Austin at the second story window in shorts one afternoon; that on one occasion Austin spent the night.. Another testified that Austin’s car was often outside overnight.

The third neighbor testified that Mrs. Vogts told her she had gone to New York with Austin and had been introduced to his friends as his wife. They agreed that Mrs. Vogts like “a good time,” and was an unsuitable person to have custody of the children. Col. Gordon Austin, a full Colonel in the Air