Barnett v. Barnett

• Decision Date: 21 November 1923
• Parties: BARNETT v. BARNETT.
• Court: Maryland Court of Appeals

125 A. 51

144 Md. 184

BARNETT v. BARNETT.

Court of Appeals of Maryland

November 21, 1923

Appeal from Circuit Court of Baltimore City; Duffy, Judge.

Suit for divorce a mensa et thoro by Martha Phelps Barnett against Eccleston Barnett, wherein defendant counterclaimed for absolute divorce. From decree for plaintiff, defendant appeals. Affirmed.

Wilton Snowden, Jr., of Baltimore, and Elmer J. Cook, of Towson, for appellant.

Isaac Lobe Straus and William Pinkney Whyte, Jr., both of Baltimore, for appellee.

OFFUTT J.

The parties to this appeal were married on March 16, 1912, at the home of Mrs. Barnett in the St. Paul Apartments, in Baltimore, and lived together as husband and wife until June 6, 1917, when they separated. After the separation Mr Barnett, the appellant, contributed regularly to the support of his wife and their infant child until January, 1922, when the payments to her ceased, and on April 28, 1922, she filed the bill of complaint in this case, in which she charged that the appellant had deserted and abandoned her and that he refused to contribute to her support, and in which she prayed that she be divorced a mensa et thoro from him, and that he be required to pay permanent alimony for the support of herself and their infant son, and that she be awarded the custody of the child. The defendant in his answer denied the allegations of abandonment and desertion, and later filed a cross-bill in which he charged that the defendant, Martha Phelps Barnett, had been guilty of adultery with a certain Geoffrey C. Maxwell, and in which he prayed that he might be divorced absolutely from her and that the custody of their child might be awarded to him. She denied in her answer the charges of adultery, and testimony in connection with the issues thus tendered was taken in open court, and at its conclusion and after the case had been argued by counsel the court passed the following decree:

"This cause having come on for hearing, and the testimony of the witnesses of the respective parties having been heard in open court, the proceedings having been read and the arguments of the solicitors for the several parties having been duly considered, it is this 15th day of January in the year nineteen hundred and twenty-three, by the circuit court of Baltimore city adjudged, ordered and decreed that the plaintiff, Martha Phelps Barnett, be and she is hereby divorced a mensa et thoro from the defendant, Eccleston Barnett; that the said Martha Phelps Barnett be and she is hereby granted and awarded the care, custody and guardianship of the infant son of the parties, Charles Phelps Barnett, with the right, however, to the said Eccleston Barnett to visit and see their said son at reasonable times.

And it is further adjudged, ordered and decreed that said Eccleston Barnett shall pay to said Martha Phelps Barnett the sum of twenty-four hundred dollars ($2,400.00) per annum as permanent alimony, in monthly installments of two hundred dollars ($200.00) each, accounting from the 15th day of January, nineteen hundred and twenty-three; and the said Eccleston Barnett shall also pay to said Martha Phelps Barnett the further and additional sum of one thousand dollars ($1,000.00) per annum for the support, maintenance and education of their said infant son, Charles Phelps Barnett, in monthly installments of eighty-three dollars and thirty-three cents ($83.33) each, accounting from the 15th day of January, nineteen hundred and twenty-three, and to continue until the further order of this court.

And it is further adjudged, ordered and decreed that the said Eccleston Barnett shall pay to Isaac Lobe Straus and William Pinkney Whyte, Jr., solicitors for Martha Phelps Barnett, the sum of one thousand dollars ($1,000.00) as counsel fee, five hundred dollars ($500.00) of which is to be paid on or before January 20, 1923, and the remaining five hundred dollars ($500.00) of which is to be paid on or before March 20, 1923.

And it is further adjudged, ordered and decreed that the Safe Deposit & Trust Company of Baltimore city, the trustee of the estate and property of the said Eccleston Barnett, be and it is hereby ordered and required to pay each and all of the above sums, in the manner hereinabove provided for with respect to each of them, to the said Martha Phelps Barnett and to her said solicitors, out of the income and funds accruing to the said Eccleston Barnett from his said estate and property in the hands of said trustee; and the clerk of this court is hereby directed to transmit forthwith a certified copy of this decree to said trustee.

And it is further adjudged, ordered and decreed that the cross-bill filed by the said Eccleston Barnett against the said Martha Phelps Barnett be and the same is hereby dismissed.

And it is further adjudged, ordered and decreed that the said Eccleston Barnett pay all costs of these proceedings."

From that decree the present appeal was taken.

The substantial and controlling question in the case is whether the appellant sustained the charge of adultery made in his cross-bill, for neither at the oral nor written argument was it seriously contended that the evidence did not sufficiently show that he had abandoned and deserted his wife and that when the original bill was filed he was contributing nothing to her support.

Before referring in detail to the testimony concerning that question, we will state the general principles by which we should in our opinion be guided in measuring and weighing the evidence produced in support of a charge of adultery in such cases as this.

While adultery is a crime under the laws of this state, yet when it is advanced as a ground for divorce it is not treated as a criminal charge and need not in such a proceeding as this be proved beyond a reasonable doubt, it is sufficient if it be proved by a clear preponderance of the evidence. 19 C.J. 132. Nor is it necessary that the probative value of the evidence required to justify a finding of adultery should equal that which is required to convict a defendant charged with crime. Id. 137. But while that is true, nevertheless the charge is of so grave a character, its consequences to the person against whom it is made so permanent and destructive, and the stain upon the character of one convicted of it so indelible, as to impose upon the court trying the issue, where adultery is charged even in a civil case, the duty of examining and weighing with the most scrupulous care the evidence adduced to support it, and, to establish such a charge, the evidence should be clear, satisfactory, and convincing. And while it is not necessary to prove it by direct testimony, for it is sufficient if it be shown by circumstances sufficient to warrant a reasonable and prudent man in drawing an inference of guilt therefrom, it is necessary, in order to sustain such a charge, that the circumstances from which that inference is to be drawn must themselves be proven by clear, credible, and convincing evidence.

It has been said:

"A finding of adultery should be made only where the court is thoroughly satisfied of the truth of the charge by clear and convincing evidence, and such finding is not sustained where the evidence is improbable and contradictory." Steele v. Steele (Sup.) 170 N.Y.S. 457.

And, while it may not be necessary to adopt in its entirety that expression of the law, it is nevertheless consistent with our view of the quantity and quality of proof needed to sustain a charge of adultery in a divorce proceeding. Pattison v. Pattison, 132 Md. 362, 103 A. 977; Kremelberg v. Kremelberg, 52 Md. 553; Thiess v. Thiess, 124 Md. 292, 92 A. 922; Carter v. Carter,

139 Md. 265, 114 A. 902.

We will now return to the facts of the case and the evidence relating to them. It is unnecessary to refer at any length to the evidence in connection with the appellee's charge that the appellant abandoned and deserted her, and that at the time the bill was filed he was contributing nothing to her support. The circumstances under which the parties separated are not clearly shown, nor is there anything in the record which points with certainty to any reason for the separation but it is clear that, after June 6, 1917, the appellant lived apart from his wife; that he maintained no home for her; and, according to his own testimony, that after that time he had no further marital relations with her, and that thereafter he by his conduct manifested an intention not to live with her again; and it is also sufficiently shown that the continued separation was at his will and instance, and that she was willing at any time to resume their relations as husband and wife and so informed him, and it also appears that he finally refused to contribute anything to her support. Under such circumstances in our opinion the learned and careful judge who tried this case below was fully justified in finding that the appellant had deserted and abandoned the appellee. Heinmuller v. Heinmuller, 133 Md. 491, 105 A. 745; Gill v. Gill, 93 Md. 652, 49 A. 557; Muller v. Muller, 125 Md. 72, 93 A. 404. For while the evidence shows that the appellee in fact left the appellant's home, it does not show that when she did so she intended to separate finally from him, but it does appear that, after she left, he by his own actions made the separation permanent, because he leased the only home they then had to his sister, and provided no other home to which his wife could go. She alleges that he forced her to leave their home, while he says she left voluntarily, but whether she left voluntarily or involuntarily is not material, because it is clear from the evidence that after she left she was willing at any time to return to him whenever he provided a place to which she could come, but that he refused to resume...