Appeltofft v. Appeltofft

• Decision Date: 26 February 1925
• Docket Number: 8.
• Citation: 128 A. 273,147 Md. 603
• Parties: APPELTOFFT v. APPELTOFFT.
• Court: Maryland Court of Appeals

128 A. 273

147 Md. 603

APPELTOFFT v. APPELTOFFT.

No. 8.

Court of Appeals of Maryland

February 26, 1925

Appeal from Circuit Court of Baltimore City; Charles F. Stein Judge.

"To be officially reported."

Suit by Freda M. Appeltofft against Howard E. Appeltofft. Judgment for defendant on cross-complaint, and plaintiff appeals. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, DIGGES, PARKE, and WALSH, JJ.

William D. Macmillan, of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellant.

James Fluegel, of Baltimore, for appellee.

URNER J.

A bill for a divorce a mensa et thoro, on the ground of excessively vicious conduct, was filed by the appellant against her husband, the appellee, who filed an answer denying the alleged misconduct and also a cross-bill charging the appellant with adultery and praying for a divorce a vinculo matrimonii. The case was heard by the lower court on the oral testimony of the parties and their witnesses, and the trial resulted in a decree dismissing the bill of the wife and granting an absolute divorce for the cause alleged in the cross-bill of the husband. The answer of the wife to the cross-bill neither admitted nor denied the adultery of which she was accused, but the defense sought to be interposed in the testimony and argument was that the wife is innocent of the offense charged, and that even if she were guilty, her husband's abusive and violent treatment of her, and certain conduct on his part which is said to have encouraged a breach of her marriage vows, constitute a bar to his cross-suit for a divorce on the ground of her infidelity.

Upon the proof in the record we have no alternative but to agree with the conclusion of the court below that the charge of adultery has been sustained. The appellant, while denying the adultery, admitted her acceptance of affectionate attentions from the man suspected of being her paramour, and he testified specifically to their illicit relations. On one occasion they were discovered and interrupted by a witness while they were in the very act of adultery, according to his testimony. The existence of the compromising situation described by that witness was acknowledged by the appellant but she asserted that the act was being unsuccessfully attempted against her will. In view of the proved and admitted circumstances, her denial is not convincing. The testimony in the case will not be here reviewed in detail. It leaves no room for reasonable doubt as to the appellant's marital misconduct.

The evidence also proves that the appellee's treatment of his wife was repeatedly brutal and insulting. It would have been a clearly sufficient ground for a divorce a mensa et thoro under the Maryland law if the wife's own conduct had been free of the fault alleged and proved. Her uncondoned adultery, which occurred before the separation, but did not come to the husband's knowledge prior to that event precludes a decree for a partial divorce on her application. Martin v. Martin, 141 Md. 182, 118 A. 410. The question as to whether the husband's cross-suit for an absolute divorce is barred by conduct on his part which would have entitled the wife to a decree a mensa et thoro has been determined in the recent unreported case of Pryor v. Pryor (not for publication), decided February 1, 1924. In that case the opinion of the court, prepared by Judge Adkins, contained the following statement:

"By the great preponderance of authorities in this country, where the statutes authorize an absolute divorce or divorce a mensa et thoro, it is fully recognized that in a suit by one spouse for a cause entitling him or her to an absolute divorce, the other spouse

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