Dougherty v. Dougherty

• Decision Date: 23 July 1946
• Docket Number: 161.
• Citation: 48 A.2d 451,187 Md. 21
• Parties: DOUGHERTY v. DOUGHERTY.
• Court: Maryland Court of Appeals

48 A.2d 451

187 Md. 21

DOUGHERTY v. DOUGHERTY.

No. 161.

Court of Appeals of Maryland

July 23, 1946

Appeals from Circuit Court of Baltimore City; Emory H. Niles, Judge.

Divorce suit by William F. Dougherty against Alda H. Dougherty, who filed a cross-bill for alimony. From a decree granting the complainant a divorce from the bonds of matrimony, and an order dismissing the cross-bill, the defendant appeals.

Decree and order reversed and cause remanded for further proceedings.

Hyman Ginsberg, of Baltimore (Ginsberg & Ginsberg and Harry Leeward Katz, all of Baltimore, on the brief), for appellant.

Henry M. Siegel, of Baltimore (Siegel & Siegel, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON and HENDERSON JJ.

DELAPLAINE Judge.

Alda H Dougherty appealed from a decree of the Circuit Court of Baltimore City dated January 22, 1946, granting her husband William F. Dougherty, a divorce a vinculo matrimonii on the ground of adultery, and dismissing her cross-bill for alimony on the ground of abandonment.

The parties were married in 1918 and have one daughter, now divorced. Complainant, now over 45 years old, has been employed for many years by the Baltimore and Ohio Railroad Company, and is now a special inspector for that company. From 1926 to 1941 the parties resided in a comfortable home at 41 Overbrook Road in Catonsville. But Mrs. Dougherty became increasingly dissatisfied with her husband, and often visited at night the home of Mrs. Moran on South Paca Street in Baltimore. To investigate her conduct, her husband waited for her outside the house on Saturday night, June 7, 1941, and when she returned at 2 a.m., noted the license number of the automobile. From the Commissioner of Motor Vehicles he learned that it was owned by a man named Kelly. On Saturday night, June 14, Mrs. Dougherty was away from home again. On Saturday night, June 21, her husband trailed her and Kelly and another couple from Mrs. Moran's home to the Hermann Hotel, then to a house on Curley Street, and finally about 1 a.m. to Frederick Avenue, near Overbrook Road, where Kelly parked the car and turned off the lights. Complainant, following with two friends, parked close behind, and when he walked up to the car and pointed a flashlight on the front seat, he saw his wife and Kelly embracing. During the rest of the night he stayed at the home of one of his friends. The next day he phoned his regrets to his wife, but she defiantly retorted that he did not see her 'in bed with Mr. Kelly.'

Since that time complainant has been living in an apartment in Baltimore, while his wife has continued to live in their home, which they hold as tenants by the entireties. She also continued her visits to the home of Mrs. Moran, where she became acquainted with a married man named Thomas Lucatuorto. On the night of February 28, 1942, she was in his automobile when it knocked down and fatally injured a pedestrian in Irvington. In the report of the accident to the Commissioner of Motor Vehicles, Lucatuorto listed her as a witness under the name of Patricia Dougherty, as she was called by her friends, and gave her address as 735 Carroll Street, Baltimore. At the hearing in the Southwestern Police Station, where he was released on bail for action of the grand jury, he swore that she was his fiancee. In 1942 Lucatuorto was sued for divorce in the State of New York on the ground of adultery with Mrs. Dougherty. In the court below Mrs. Dougherty swore that she had never made any affidavit or signed any paper in connection with the Lucatuorto divorce suit; but when she was confronted with a copy of her affidavit that she had not committed adultery with Lucatuorto but had been employed by him as a 'domestic cleaning woman,' she admitted that she made and signed the affidavit, and also that she conferred in New York with Lucatuorto's attorney. It further appears that Lucatuorto was a frequent visitor in Mrs. Dougherty's home, and that she was a frequent visitor in Lucatuorto's summer retreat, a bungalow at Margate's Shore in Anne Arundel County. In 1943 Complainant made three trips there to watch his wife. The first was on the night of July 29. Accompanied by two friends he arrived there at 10 p.m., and saw his wife and Lucatuorto arrive about 11:30. He testified that the lights in the house were turned on, but about an hour later were turned off, and when they left at 3 a.m. the house was still in darkness. On August 6 and August 13 complainant and his two friends watched again. On these nights, as in July, Mrs. Dougherty and Lucatuorto returned together, and no one else entered the bungalow.

It is an established rule that the burden of proof in a suit for divorce is upon the complainant, and where adultery is charged the evidence must establish affirmatively that the alleged offense was committed. It is not necessary, however, to establish the charge of adultery by direct evidence of the commission of the act, for because of the clandestine nature of the offense it is rarely possible to obtain evidence of the commission of the act by the testimony of eyewitnesses. The offense may be inferred from the circumstances if the inference is the only natural and logical deduction to be drawn therefrom. To prove adultery, the circumstantial evidence must clearly establish (1) a disposition on the part of the defendant and the paramour to commit adultery, and (2) an opportunity to commit the offense. After considering these and all other facts and circumstances in the case, the court then determines whether the evidence would convince an unprejudiced and cautious person of the guilt of the defendant. The permanent consequences of adultery are so injurious to the parties that the court will not accept as sufficient proof of its commission anything less than evidence so clear, satisfactory and convincing as to raise in the mind of a reasonable and unprejudiced person a natural inference of guilt. We do not consider the use of circumstantial evidence harsh or unreasonable, for it applies only to those who, by open disregard of the moral and social conventions and decencies of life, have shown themselves indifferent both to their marital obligations and to the opinion of others. Dicus v. Dicus, 131 Md. 87, 101 A. 697; Pattison v. Pattison, 132 Md. 362, 103 A. 977; German v. German, 137 Md. 424, 112 A. 789; Wendel v. Wendel, 154 Md. 11, 24, 25, 139 A. 573; Swoyer v. Swoyer, 157 Md. 18, 31, 145 A. 190; Harward v. Harward, 173 Md. 339, 356, 196 A. 318.

In this case the evidence unmistakably shows an adulterous disposition of defendant. The fact that a married woman is so indifferent to the convictions of life as to exhibit affection in an automobile parked on a public street after midnight affords evidence of an adulterous disposition which, if unexplained, may be accepted as ample proof of such a disposition. Also it is abundantly clear that defendant had innumerable opportunities to commit adultery. She did not deny that Lucatuorto occasionally spent the entire night in her home, and that he kept some of his clothes there. Nor did she deny that she lived with him along the river in the summers of 1942, 1943, 1944 and 1945. It is incredible that any woman with any reputation to lose would risk it by receiving constant attentions of a married man by entertaining him alone in her home during the night, motoring at any hour of the night alone with him, and living with him in his secluded summer home, unless impelled by illicit passion. The only inference to be drawn from the evidence is that defendant was guilty of adultery. If she has been injured by the rule allowing proof of adultery by circumstantial evidence, she has only herself to blame, for by her reckless conduct she had made the conclusion of guilt inescapable.

The decisive question on this appeal is whether testimony should have been admitted to show that complainant was guilty of adultery. The chancellor refused this testimony because (1) the answer and cross-bill did not allege adultery, and (2) defendant could not properly amend after the trial commenced. By express provision of statute, either the complainant or defendant in any case in a court of equity has the right to amend the bill of complaint or answer at any time before final decree, so as to bring the merits of the case fairly to trial. Code 1939, art. 16, § 18. We have held, however, that the right to amend is not a right ex debito, but is subject to the sound discretion of the court. In other words, it may be stated as a general rule that the chancellor is clothed with discretion in allowing or refusing amendments at any time before final decree, and such discretion will not be reviewed in the absence of its abuse. Engle v. United States Fidelity & Guaranty Co., 175 Md. 174, 200 A. 827; Funkhouser v. Mooers, 179 Md. 266, 269, 18 A.2d 205. Since 1842, when the Legislature of Maryland conferred jurisdiction in all applications for divorce upon the courts of equity of this State (Acts of 1841, ch. 262, Code 1939, art. 16, § 38; Miller v. Miller, Md., 42 A.2d 915), this Court has recognized the essential difference between a divorce suit and the ordinary chancery case. In all suits for divorce the court sits, not in the exercise of its ordinary chancery jurisdiction, but as a divorce court and is governed by the rules and principles established in the ecclesiastical courts in England so far as they are consistent with the provisions of the Code. In the ordinary case the parties may agree as to what facts fall be submitted to the court, and may waive by agreement any rights which they may have but do not care to exercise. But in a divorce suit the public policy of the State requires that the marriage relation shall not be...