Borne v. Borne

• Citation: 33 Md.App. 578,365 A.2d 359
• Decision Date: 08 November 1976
• Docket Number: No. 98,98
• Parties: Helen T. BORNE v. Lewis E. BORNE, Jr.
• Court: Court of Special Appeals of Maryland

Page 578

33 Md.App. 578

365 A.2d 359

Helen T. BORNE v. Lewis E. BORNE, Jr.

No. 98.

Court of Special Appeals of Maryland.

Nov. 8, 1976.

John P. Corderman, Hagerstown, for appellant.

David K. Poole, Jr., and R. Martin Palmer, Jr., Hagerstown, for appellee.

Argued before THOMPSON, POWERS and MELVIN, JJ.

POWERS, Judge.

By an amended decree signed by Judge Paul Ottinger, the Circuit Court for Washington County granted to Lewis E. Borne, Jr., an absolute divorce from Helen T. Borne, dismissed Mrs. Borne's cross-bill, and denied her petition to reserve the right to award alimony later.

In her appeal from that decree Mrs. Borne argues that the factual findings of the trial judge concerning the appellant's disposition to commit adultery were clearly erroneous, and that the evidence in the record does not meet the irreducible minimum standard of proof necessary to substantiate a claim of adultery.

This litigation began on 21 January 1974 when Mr. Borne filed a bill of complaint alleging that the parties were residents of Washington County, that they were married in 1949, that their two children were emancipated, and that Mrs. Borne had committed adultery. He prayed for an absolute divorce. Mrs. Borne answered, and denied the allegation of adultery. Mrs. Borne filed a 'Cross-Bill of Complaint' in which she alleged that her husband deserted and abandoned her on 4 January 1972, and prayed that she be granted an absolute divorce, and reasonable counsel fees. The husband's answer to the cross-bill denied its essential allegations.

With leave of court Mr. Borne filed a supplemental complaint on 7 January 1975, alleging that the parties had lived separate an apart consecutively, without cohabitation, for a period of three years. He again prayed for an absolute divorce. The wife answered, admitting the allegations of the supplemental complaint, and requesting the court to reserve jurisdiction over alimony in any decree passed.

Evidence on all issues was taken before the chancellor on 25 November 1975. In a Memorandum Opinion filed with the decree the chancellor stated that Mr. Borne did in fact move out of the marital home on 4 January 1972, and that the parties had not cohabited since that time. The opinion then said:

'There was a great deal of convincing testimony offered that, beginning in September of 1973, a man named Glenn Bitner began to visit Mrs. Borne at her home at 328 Nottingham Road regularly, usually in the evening, and frequently remained until midnight or thereafter. This is not disputed; in fact, it was admitted by both Mrs. Borne and the alleged paramour Bitner. This testimony, of course, establishes the opportunity to commit adultery. Mrs. Borne's attorney argues, however, that there was no evidence of inclination. The Court disagrees. Mr. Borne and at least one of his witnesses testified that on some of the occasions when Mrs. Borne came to the front door to turn the light on for Bitner when he was leaving, that she (the Defendant) kissed Bitner and the Court believes this testimony and finds therefore that there was both opportunity and inclination. The Court finds further that Mrs. Borne was guilty of adultery with Bitner, after the separation, and that such adultery has not been condoned by Mr. Borne, nor has there been any reconciliation between the parties since this adultery was committed. Mr. Borne is therefore entitled to a Divorce A Vinculo Matrimonii on the ground of adultery and, of course, he is also so entitled on the other ground of three years continuous separation without cohabitation.

'The Court will award Mr. Borne a Divorce A Vinculo Matrimonii. The Cross-Bill of Mrs. Borne will be dismissed and the request to reserve the right to award alimony at a later date will be denied.'

Preliminarily we note that the decree itself grants the divorce, but does not state a ground. It is often said that, 'The opinion does not constitute a part of the decree, and the appeal, of course, is only from the decree.' Brenneman v. Roth, 212 Md. 491, 497, 130 A.2d 301, 304 (1957); Holmes v. Sharretts, 228 Md. 358, 374, 180 A.2d 302 (1962). The Court of Appeals has also said, however, that, 'Although an appeal is from the action of the court, not from the opinion, the opinion may be looked to for the establishing of matters therein set forth.' Scherr v. Braun, 211 Md. 553, 560-61, 128 A.2d 388, 391 (1957).

Looking to the opinion to establish the chancellor's reasons for the decree, we consider it evident that the culpatory ground of adultery was one ground for the divorce, whether or not non-culpatory separation for three years was also a ground. Indications in the decree that the court found Mrs. Borne to be a wrongdoer were dismissal of her cross-bill ¹, and denial of her request to reserve the question of alimony.

We have carefully reviewed the evidence upon which the chancellor based his finding of adultery. In the absence of direct proof, of which, as in most such cases, there was none adultery can be found only be inference. The process of drawing inferences is usually approached by the courts on a two step basis. One step requires that there be evidence to prove that the spouse and the companion were together at a time and place and under circumstances which provided them an opportunity to engage in sexual intercourse, should they be so disposed.

As the chancellor noted in his opinion, there was a great deal of testimony that established that Mrs. Borne and Mr. Bitner, the alleged paramour, on several occasions had the opportunity to commit adultery. It is true that an opportunity must be shown to have existed before a court can be asked to find, by inference, that the man and woman who had the opportunity did in fact commit adultery. The showing of a mere opportunity, although a prerequisite to circumstantial proof of adultery, has little or no evidentiary significance in itself. Countless opportunities, in the sense of an occasion when a man and a woman are present temporarily at a place where no one else is present, occur every day. Ordinarily, such an opportunity means nothing. We must assume respectability and virtue, unless there is evidence to show otherwise.

The other step in the inferential process requires evidence that both the man and the woman in question have an adulterous disposition-that it is the inclination of each one to commit adultery when there is an opportunity to do so. Steinla v. Steinla, 178 Md. 367, 13 A.2d 534 (1940).

The finding in this case that both Mrs. Borne and Mr. Bitner had the inclination or disposition to commit adultery, and the inference that they did in fact do so, was based entirely upon evidence which the chancellor summarized in these words:

'Mr. Borne and at least one of his witnesses testified that on some of the occasions when Mrs. Borne came to the front door to turn the light on for Bitner when he was leaving, that she (the Defendant) kissed Bitner and the Court believes this testimony and finds therefore that there was both opportunity and inclination. The Court finds further that Mrs. Borne was guilty of adultery with Bitner * * *.'

An error in recollection of the testimony may have contributed to the chancellor's finding of inclination. Review of the record shows that it was not 'some of the occasions', but on only one occasion that there was evidence of a kiss, when Mrs. Borne turned on the porch light for Mr. Bitner when he was leaving. No witness said that 'she kissed Bitner.' Chester A. Herbert, who was watching with Mr. Borne, said, 'I saw them kiss goodnight.' Mr. Borne, whom we would expect to be acutely observant of details, said, '* * * he kissed her goodnight and left * * *.'

While one goodnight kiss is the most damning evidence against Mrs. Borne, we have reviewed all of the testimony which bears on his relationship with Mr. Bitner. In substance, the testimony showed that in September, possibly August, 1973, more than 18 months after Mr. Borne left the home, a Mr. Glen Bitner began to call upon Mrs. Borne. Mr. Bitner, a widower since 1968, was employed as a pharmacist at the Western Maryland Center, a State Hospital where Mrs. Borne was employed as a registered nurse. They had known each other for several years.

Mr. Borne, sometimes alone, sometimes with one or another of several friends, observed the house on numerous occasions from September 1973 to January 1974, when he filed suit. The combined testimony of Mr. Borne, Chester A. Herbert, Roy Trovinger, Eileen Herbert (his sister), and Edward J. Weneck, as well as the testimony given by Mrs. Borne, Mr. Bitner, and Madeline Light, a next door neighbor called as a witness by Mrs. Borne, produced not a single conflict of fact. The testimony described some half dozen occasions (and the alleged wrongdoers freely confirmed that there were more) when Mr. Bitner came by car to Mrs. Borne's house, parked in a conspicuous place, entered the house, and later left. The hours of these visits were generally from around 9:00 P. M. to a little before or a little after midnight. Once or twice he arrived around dinner time, and stayed only an hour or so. They attended together a Western Maryland Center Christmas party. On a few occasions they had a meal together at the clubhouse of the Potomac Fish and Game Club. When Mrs. Borne went on a trip to visit relatives, Mr. Bitner took her and her luggage to the airport. Both Mrs. Borne and Mr. Bitner testified that their relationship was one of friendship or companionship. Each said that they had not engaged in sexual relations.

There was no suggestion in the evidence of secretiveness or of any effort to conceal their activities. There was no suggestion, by evidence of lights being turned on or off, or otherwise, of movement of the occupants into areas of the house less appropriate to an innocent social visit. The one occasion upon which Mr. Borne said Mr. Bitner kissed her goodnight and left, was not described as involving any...