Courson v. Courson

• Decision Date: 07 November 1955
• Docket Number: No. 4,4
• Citation: 208 Md. 171,117 A.2d 850
• Parties: Nadine Annette COURSON v. Paul Samuel COURSON.
• Court: Maryland Court of Appeals

Page 171

208 Md. 171

117 A.2d 850

Nadine Annette COURSON v. Paul Samuel COURSON.

No. 4.

Court of Appeals of Maryland.

Nov. 7, 1955.

Louis Samuels, Baltimore (Samuel A. Culotta and Malcolm J. Coan, Baltimore, on the brief), for appellant.

Ellis M. Fell and Simon Nobel Silverberg, Baltimore (Morton H. Perry, Baltimore, on the brief), for appellee.

Before BRUNE, Chief Judge, and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

In this case the chancellor gave the husband a decree of absolute divorce from the wife on the ground of her adultery. She appeals, urging that the testimony was insufficient to permit a finding of adultery and that even if adultery properly was found, the husband cannot be given a divorce under the rule of recrimination, it having been shown in the case (although not pleaded) that he was guilty of desertion for over eighteen months--an offense which would have permitted the wife to obtain an absolute divorce from him.

About a year after the parties were married, the wife left their home without legal justification. Several days later she receded from her legally unjustified position and consulted her father-in-law and a marriage counsellor, telling them she wished a reconciliation and asking advice as to how to make the marriage work. The counsellor sent for her husband and talked to him but he flatly refused a reconciliation. This occurred in August of 1952. In September, the husband filed a bill which alleged desertion on the part of the wife and prayed for a divorce a mensa et thoro. In November, the wife answered and filed a cross-bill, alleging desertion on the part of the husband. In April, 1953, Judge Warnken dismissed the bill of the husband and granted the wife a divorce a mensa et thoro on the ground that the husband had refused genuine offers of reconciliation on the part of the wife. The parties have lived apart from the time of the first separation and apparently have never seen each other. A child was born in February, 1953, but even then the father showed no interest whatever in the wife or the child. In June, 1954, the husband employed a detective to furnish evidence which would permit him to obtain a divorce from his wife. On the night of June 15, the detective called the husband and told him it was very likely that such evidence would become available that evening. The husband and the detective followed the automobile in which the wife and a male companion drove to an inn in the country for dinner, and later to a wooded area in the vicinity of Loch Raven Dam, where, in the early hours of the morning, they surprised the couple in the parked car and obtained evidence of adultery on which the husband brought the bill of complaint and obtained the decree appealed from.

Judge Moser, who heard the case below, said this: 'The Court is fully aware of the serious effect of a decision which says that a wife, and the mother of a child, has been guilty of adultery. It is aware of all the restraints with which it is bound before coming regretfully to such a conclusion. The Court knows that the evidence must be clear and unequivocal. The Court knows that the testimony of a paid witness is to be regarded with grave suspicion. It also knows that a man who is paying $25 a week and hires a detective, that his testimony must be weighed in the same acid of suspicion.' The court found from the testimony of the wife and her escort that there could be inferred a disposition on their part to commit adultery and that there was no doubt of the opportunity, and that it '* * * very reluctantly and regretfully, must come to the conclusion that * * * the evidence shows clearly and unequivocally that adultery has been committed.' We have carefully reviewed the record and find nothing to indicate that the chancellor was wrong in his conclusions. A review of all the facts and circumstances shown by the testimony could well '* * * convince an unprejudiced and cautious person of the guilt of the defendant.' Dougherty v. Dougherty, 187 Md. 21, 28, 48 A.2d 451, 455.

If then the chancellor did not err in his finding on this point, what effect must be given the fact that the testimony in the case shows that the husband had abandoned the wife in August of 1952 'and that such abandonment has continued uninterruptedly for at least eighteen months, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation;' Code 1951, Art. 16, § 33; and that, therefore, the husband was guilty of an offense which the statute says is a cause for divorce by the wife? Recrimination is generally defined as a rule or doctrine which precludes one spouse from obtaining a divorce from the other, where the spouse seeking a divorce has himself or herself been guilty of conduct which would entitle the opposite spouse to a divorce. If both spouses were guilty of uncondoned adultery, the ecclesiastical courts, following the Mosaic law, would not grant relief by way of divorce to either of them. Almost all of the states follow this view and some, indeed most, go further. Nelson, Divorce and Annulment, Second Edition, Vol. 1, Sec. 10.01, p. 359, makes this statement: 'In most states, the doctrine is carried forward in a broader form, so that, though the spouse seeking a divorce on any ground authorized by the law of that state for absolute divorce can show misconduct of the opposite spouse meeting the statutory requirements, a divorce will nevertheless be denied if it appears that complainant, himself or herself, was guilty of misconduct which would have entitled the one against whom divorce is sought to a divorce. The misconduct need not fall within the same statutory classification, but it must be ground for divorce, not merely for separate maintenance or divorce a mensa.' Maryland follows the rules which Nelson says are generally applicable in the United States. In Geisselman v. Geisselman, 134 Md. 453, 455, 107 A. 185, Chief Judge Boyd said for the Court: 'Our statute is silent as to the defense of recrimination, but it was a bar in the Ecclesiastical courts and has been recognized in many cases in this state, amongst others, Fisher v. Fisher, 93 Md. 298, 48 A. 833, and Green v. Green, 125 Md. 141, 93 A. 400, L.R.A.1915E, 972.' In Green v. Green, the husband filed for an absolute divorce on the grounds of abandonment for a period sufficient to justify an absolute divorce and proved his case. The wife did not even appear and a decree pro confesso was entered against her. She was not represented on appeal. In the course of his testimony, the husband was asked whether he had ever been guilty of adultery, and he answered that once he had. This had happened after the statutory period of desertion had elapsed. The court below dismissed the bill and this Court affirmed. In the opinion, there is a full discussion of various applicable points. Later cases which have announced the same general principle, namely, that the provisions and policies of the law forbid divorce to either of two spouses, both of whom have committed acts which constitute grounds for divorce under the statute, even though the acts are different, include Martin v. Martin, 141 Md. 182, 118 A. 410; Boyd v. Boyd, 177 Md. 687, 11 A.2d 461, and Dougherty v. Dougherty, 187 Md. 21, 30, 31, 48 A.2d 451, supra. In this State, too, recrimination need not be specially pleaded nor relied on, but if it appears to the chancellor that the complainant is guilty of recrimination, it is not only his right but his duty to refuse the divorce. Green v. Green; Geisselman v. Geisselman; Dougherty v....