Adkins v. Adkins

• Court: Delaware Superior Court
• Writing for the Court: LAYTON, C. J.
• Citation: Adkins v. Adkins, 190 A. 740, 38 Del. 314 (Del. Super. 1937)
• Decision Date: 04 March 1937
• Parties: CHARLES H. ADKINS v. OLA B. ADKINS

190 A. 740

38 Del. 314

CHARLES H. ADKINS v. OLA B. ADKINS

Superior Court of Delaware, Sussex County

March 4, 1937

Superior Court for Sussex County, No. 38, October Term, 1936.

Petition for divorce on the ground of adultery.

The petition was filed September 14, 1936. Service was by publication. The notice of the suit required, when practicable, by the statute (Rev. Code 1915, § 3014; Rev. Code 1935, § 3507) apparently was received by the defendant at Fruitland, Md. The notice gave the time and place set for the hearing, but not the cause alleged.

The petition charged the defendant with having committed adultery with one O. S. on the day of August, 1935, at the petitioner's home, and at various other times at the home during six months prior to October 8, 1935; and that he learned of his wife's offenses on the latter date, since which time they had not cohabited.

The evidence was entirely circumstantial. Generally, it was that for a period of five or six months prior to the separation the alleged corespondent, O. S., made frequent visits to the home of the plaintiff and defendant in the absence of the plaintiff. The plaintiff was the operator for hire of a motor truck, and, consequently, was away from home often. His absences from home were of uncertain duration, from an hour or two to overnight.

One witness, a neighbor, testified that in August, 1935, she had occasion to go to the defendant's home, but found the screen door to the kitchen fastened; that the defendant came to the door, unhooked it and admitted her; that O. S. was in the kitchen washing his hands. She testified also that the defendant and O. S. frequently went into a chicken house on the premises, staying there for varying lengths of time, and that she had seen the defendant's infant children trying to get into the chicken house. The children were quite young one being about two years, the other between three and four years of age. She further testified that she had never seen O. S. at the house at night when the plaintiff was away from home, nor had she seen any signs of affection or familiarities between the defendant and O. S.

The husband of the witness testified to the frequent visits of O S. to the home in the absence of the plaintiff, and of the visits of the defendant and O. S. to the chicken house, where there were "baby chicks" being raised. He testified that a former attendant had arranged a place to sleep there. He was not sure whether one could see into the chicken house, but thought that bags had been hung over the windows.

He testified that the attitude of the defendant and O. S. when seen together, "just seemed to be friendly, just sociable talk, more or less like that."

Decree nisi refused.

Tunnell and Tunnell for petitioner.

LAYTON C. J., sitting.

OPINION

LAYTON, C. J.

The burden of proof was upon the petitioner, and all uncertainties of fact must be resolved against him. Keezer, Marriage & Divorce (2d Ed.), § 242. Satisfactory proof of the charge must be made although the defendant is indifferent, or does not defend. Keezer, supra, § 510; Peretti v. Peretti, 165 Cal. 717, 134 P. 322; Johnson v. Johnson, 122 Ark. 276, 182 S.W. 897; Topfer v. Topfer (N. J. Ch.), 68 A. 1071.

However singular it may appear that an innocent woman does not defend against an accusation of adultery, the mere failure to do so is not a fact from which an inference of guilt may be drawn, especially where, as here, there is no evidence whatever that the defendant had actual notice of the ground alleged. The service was by publication. The notice sent to the defendant by registered mail was silent as to the cause for divorce.

The evidence is wholly circumstantial. Where circumstantial evidence is relied upon to prove adultery, two elements are necessary, opportunity to commit the offense, and adulterous dispositions or inclinations of the defendant and the alleged particeps criminis. 2 Schouler, Marriage, Divorce (2d Ed), § 1567; 19 C. J. 139; 9 R. C. L. 331; Hartshorn v. Hartshorn, 67 Okl. 45, 168 P. 822; Burke v. Burke, 44 Kan. 307, 24 P. 466, 21 Am. St. Rep. 283; Osborne v. Osborne, 44 N. J. Eq. 257, 9 A. 698, 10 A. 107, 14 A. 217, 218; Conger v. Conger, 82 N.Y. 603; White v. Ely, 234 Mass. 221, 125 N.E. 174.

The petitioner does not minimize the force of the rule; but his contention is that the "continuous seeking of opportunities for adultery under extremely suspicious circumstances may fully satisfy the requirements of the law," and he asserts that the circumstances here presented have fully satisfied the requirement of evidence of inclination. 9 R. C. L. 331 is offered as authority that, "it must be shown that the parties were together under suspicious circumstances not readily susceptible of explanation except on the assumption of corrupt design." In support of the text, Burke v. Burke, supra, is cited, and that case cites Mayer v. Mayer, 21 N. J. Eq. 246. But neither of the cases supports the contention that opportunity alone is such a suspicious circumstance from which a corrupt design is to be assumed. The cases are to the contrary. In the first case, the Supreme Court of Kansas reversed a judgment of the district court granting a decree for divorce where the finding of adultery on the part of the wife was based wholly on inferences from the fact of opportunity, and the opinion especially noted that there was no evidence of kisses, embraces or undue familiarities between the defendant and the alleged corespondent, nor of letters passing between them. In the second case, the Chancellor refused a decree saying that it was "not sufficient to convict parties who may be supposed willing to commit adultery, to prove that they were in a position that it was possible to commit it." He, as in the Burke Case, called attention to the fact that nothing wanton or lascivious, or approaching to it, was shown in act or conversation.

The petitioner relies upon testimony showing that on the occasion of a visit to the defendant's home by a neighbor, the screen door giving access to the porch or kitchen was fastened or hooked, and that the infant children of the defendant were seen trying to open the door of a chicken house where the defendant and her alleged paramour were.

A statement appearing in 4 Ency. Evidence, 759, is cited, that "frequent visits between the guilty parties, especially in the absence of the spouse, raise a strong presumption of adulterous desire." The cases cited do not sustain the broad implication of the text. In Daily v. Daily, 64 Ill. 329, the evidence was that the husband had sometimes been alone with a woman generally reputed unchaste in a room with the doors locked, and all entrances to the house barred; that he paid her money, frequently met her at an eating house, and often rode with her. In Beeler v. Beeler, 44 S.W. 136, 137, 19 Ky. Law Rep. 1936, there were frequent visits in the absence of the husband, but there was testimony given by the corespondent himself, and the charge of adultery was, as the court said, "abundantly established by the testimony of other witnesses." In Patterson v. Patterson (N. J. Ch.), 20 A. 347, there was, in addition to frequent visits in the husband's absence, evidence of embraces, kissing and licentious actions between the wife and the corespondent. In Dunn v. Dunn (N. J. Ch.), 21 A. 466, there was evidence of frequent visits by the corespondent, but in addition, evidence of kissing and embracing, and occupancy by the defendant and corespondent of the same home during the pendency of the suit. In McGrail v. McGrail, 48 N. J. Eq. 532, 22 A. 582, the defendant was found at night in her bedroom with the corespondent. In Stickle v. Stickle, 48 N. J. Eq. 336, 22 A. 60, in addition to visits of the corespondent in the absence of the husband, there were found many letters evidencing a guilty attachment.

The petitioner...