Wright v. Phipps

MOYLAN, Judge. The appellant, Sharon Lee Wright (Wife), and the appellee, G. Howard Phipps (Husband), were married in Maryland on June 7, 1991. On February 7, 1997, the Husband filed a Supplemental Complaint for Absolute Divorce on grounds of the Wife’s adultery. On February 24, 1997, the Wife filed a Supplemental Counter-Complaint for Absolute Divorce on the grounds of the Husband’s adultery.

On May 16 and May 19, 1997, in the Circuit Court for Baltimore County, Judge John Owen Hennegan held a hearing on the limited issue of the cross-claims of adultery. After hearing evidence and argument from both sides, he concluded that the Wife had committed adultery during the Fall of 1994 and that the Husband had committed adultery during June of 1996. He, therefore, dis ⁴⁸³ missed both of their Supplemental Complaints on the grounds of recrimination. This appeal has been taken by the Wife.

She contends 1) that the evidence was not legally sufficient to support the finding of the court that she had committed adultery; 2) that Judge Hennegan erroneously terminated her alimony pendente lite; and 3) that Judge Hennegan erroneously dismissed a contempt proceeding brought by her against the Husband without holding a hearing. Proof of the Wife’s Adultery The Wife does not quarrel with the application by Judge Hennegan of the recrimination principle. That doctrine was well surveyed by Judge Powers for this Court in Sami v. Sami, 29 Md.App. 161, 167-75 , 347 A.2d 888 (1975). See also Wallace v. Wallace, 290 Md. 265, 278-80 , 429 A.2d 232 (1981); Matakieff v. Matakieff, 246 Md. 23, 35-36 , 226 A.2d 887 (1967); Courson v. Courson, 208 Md. 171, 174-78 , 117 A.2d 850 (1955); and see Md.Code, Family Law Article, § 7-103(b)(1991).

The Wife’s challenge is restricted to the legal sufficiency of the evidence to prove adultery on her part. A complainant may sustain a charge of adultery by producing evidence of both 1) a disposition on the part of alleged adulterer and the paramour to commit adultery and 2) an opportunity for them to do so. Laccetti v. Laccetti, 245 Md. 97, 102 , 225 A.2d 266 (1967); Hockman v. Hockman, 187 Md. 340, 344 , 50 A.2d 136 (1946); Dougherty v. Dougherty, 187 Md. 21, 27-8 , 48 A.2d 451 (1946). Of practical necessity, the evidence need only be circumstantial by virtue of the fact that because of “the clandestine nature of the offense, it is rarely possible to obtain evidence of the commission of the act by the testimony of eyewitnesses.” Laccetti v. Laccetti, 245 Md. at 102 , 225 A.2d 266 .

At the time of their marriage, both the Husband and the Wife were of a mature age. At the hearing on the adultery ⁴⁸⁴ issue, the Husband testified that he was then sixty-eight years of age. Although the Wife did not give her age, she had had before her marriage to the Husband no less than nine children by two previous marriages. The adultery proved to have been committed by her in the Fall of 1994 was with her second husband, Larry Harless, to whom she was married for eighteen years and by whom she had had five children.

The key witness to the adulterous relationship between the Wife and her ex-husband was their 24-year-old son, Russell Harless. In terms of legal sufficiency, the testimony of Russell Harless was, in and of itself, sufficient to show both a disposition and an opportunity to commit adultery by the Wife and her ex-husband. Russell Harless lived with his father. He testified that he was at home when his mother visited his father on between ten and fifteen separate occasions during the critical period in question.

With respect to disposition, he testified that on a number of occasions he saw them lying down together on the bed in Larry Harless’s bedroom, lying very close to each other. On one of those occasions, Russell Harless walked into the room unexpectedly. His mother jumped up from the bed, adjusting her sweatshirt. Although not literally necessary in order to make a legally sufficient case with respect to disposition, there was also testimony from an attorney, Bruce Lambdin, who had been a social friend of both the Husband and the Wife during the early years of their marriage.

At between approximately 10 P.M. and midnight one evening, Lambdin was present in Bohager’s nightclub when he observed the Wife a short distance away. He testified that she and the man she was with “were physically involved.” He explained that he meant by that that “they had their arms around each other at various times. She was dancing in front of him. They kissed on a couple of occasions.” Within a week or ten days, Mr. Lamb-din reported the incident to the Husband in this case.

The Husband showed him a picture of the Wife’s ex-husband, ⁴⁸⁵ Larry Harless. Mr. Lambdin was virtually certain that the man he had seen at Bohager’s was in fact Larry Harless. With respect to opportunity, Russell Harless also testified that there were various occasions when his mother and father were in the bedroom together with the bedroom door locked. Russell Harless testified that on one occasion his mother specifically requested him not to tell the appellee about her trips to her ex-husband’s home: “Mom one time I remember told me that if I brought this matter up that she was coming over [to Larry’s house] all of the time, it could [affect] her divorce with [the áppellee].” Construing all of the evidence as well as all reasonable inferences therefrom in a light most favorable to the Husband, Judge Hennegan’s conclusion that the Wife had engaged in adulterous conduct with her ex-husband, predicated on the combination of disposition and opportunity, was not clearly erroneous.

Abare v. Abare, 221 Md. 445, 450 , 157 A.2d 427 (1960); Steinla v. Steinla, 178 Md. 367, 373-74 , 13 A.2d 534 (1940). Alimony Pendente Lite The appellant’s second contention is that she was erroneously denied alimony pendente lite during the pendency of this appeal. The appellant’s position in this regard, however, is fatally flawed procedurally. As an abstract proposition, we fully agree with the appellant that alimony pendente lite is just as appropriate and, indeed, be as required during the pendency of an appeal as during the pendency of the case before the trial court.

Daiger v. Daiger, 154 Md. 501, 508-09 , 140 A. 717 (1928) stated clearly: In this state it is no longer open to question, first, that a wife in a divorce proceeding is a privileged suitor where she is living apart from her husband and has no independent means of her own, and as such she is entitled to alimony, suit money, and reasonable counsel fees; second, that she is entitled to the continuance of such alimony during the ⁴⁸⁶ pendency of an appeal to this court and until its final disposition, as also the costs incident to the record on appeal, and reasonable counsel fees in the prosecution thereof. (Emphasis supplied). In Sterling v. Sterling, 145 Md. 631, 643 , 125 A. 809 (1924), the Court of Appeals first discussed alimony pendente lite generally and then observed that it may be awarded during the pendency of an appeal as surely as it may be awarded during the pendency of a suit before the trial court: Under the rule and the reason therefor the court may allow the payment of alimony, pending an appeal, and costs and reasonable counsel fees incurred or paid by the wife in the prosecution or defense of an appeal to this Court. As a result of the ratification of Article 46 of the Declaration of Rights (the so-called Equal Rights Amendment) in 1972, both the entitlement to alimony pendente lite and the obligation to pay alimony pendente lite are now gender-neutral statuses dependent on the respective financial positions of the two parties.

James v. James, 96 Md.App. 439, 450-53 , 625 A.2d 381 (1993); Hofmann v. Hofmann, 50 Md.App. 240, 243-44 , 437 A.2d 247 (1981). The subject is now covered by Md.Code, Family Law Article, § ll-102(a), which states: Except as provided in subsection (b) of this section, in a proceeding for divorce, alimony, or annulment of marriage, the court may award alimony pendente lite to either party. (Emphasis supplied). Alimony pendente lite, however, is not a self-executing entitlement.

It must be applied for in timely fashion, to wit, when some litigation (lite involving a divorce or an annulment is actually pending (pendente). While the cross-complaints for divorce were pending before the Circuit Court for Baltimore County, the Wife timely applied for alimony pendente lite. On November 25, 1996, Judge Robert E. Cadigari conducted an evidentiary hearing on ⁴⁸⁷ that issue. On December 3, 1996, he awarded the Wife the sum of $2,000 per month as alimony pendente lite.

The litigation that was then pending and that was the sole raison d’etre for the alimony pendente lite concluded probably as early as May 19, 1997, when Judge Hennegan dismissed both cross-complaints for divorce on the grounds of recrimination. His decision of May 19 was subsequently memorialized by his signing of a written order to that effect on June 6, 1997. For present purposes, however, it is not necessary to quibble over whether the litigation was terminated on May 19 or June 6. Even accepting the later of the two dates, the Wife’s present argument is fatally flawed.

As of June 6, if not before, the slate of pending litigation was wiped clean and nothing was then pending before the courts of this State, trial