France v. Safe Deposit & Trust Co. of Baltimore, s. 28, 30, 29, 31.

• Decision Date: 08 March 1939
• Docket Number: Nos. 28, 30, 29, 31.,s. 28, 30, 29, 31.
• Citation: 4 A.2d 717
• Parties: FRANCE v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE (two cases). SAFE DEPOSIT & TRUST CO. OF BALTIMORE v. FRANCE (two cases).
• Court: Maryland Court of Appeals

4 A.2d 717

FRANCE

v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE (two cases).^*

SAFE DEPOSIT & TRUST CO. OF BALTIMORE

v. FRANCE (two cases).

Nos. 28, 30, 29, 31.

Court of Appeals of Maryland.

March 8, 1939.

[Copyrighted material omitted.]

Appeals from Circuit Court, Cecil County; J. Owen Knotts, Judge.

Suit for divorce by Dr. Joseph I. France, who died pending appeal, against Tatiana V. Dechtereva France. The Safe Deposit & Trust Company of Baltimore was appointed executor and trustee of the estate of deceased. From a decree granting a divorce to plaintiff, defendant appeals, and both parties appeal from certain unsatisfactory orders.

Judgment in accordance with opinion.

Argued before BOND, C. J., and OFFUTT, PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

Abram C. Joseph and Randolph Barton, Jr., both of Baltimore (Daniel C. Joseph and Laurie H. Riggs, both of Baltimore, on the brief), for appellant in Nos. 28 and 30 and appellee in Nos. 29 and 31.

Isaac Lobe Straus, of Baltimore (Joshua Clayton, of Elkton, on the brief), for appellee in Nos. 28 and 30 and appellant in Nos. 29 and 31.

OFFUTT, Judge.

This is a suit for an absolute divorce brought by Dr. Joseph I. France, who died pending this appeal, against Tatiana V. Dechtereva France, his wife. It is alleged in the Bill that the parties were married on July 27th, 1927, in Paris, France, that they separated on September 21st, 1931, that after that and until the institution of this suit on June 3rd, 1937, they lived separate and apart without any cohabitation between them, and that the separation was voluntary and beyond any reasonable expectation of reconciliation.

The defendant answered, denying that the separation was voluntary or beyond a reasonable expectation of reconciliation, but admitting the other facts alleged in the Bill. Testimony was taken, depositions read, the parties heard and at the conclusion of the hearing the court decreed that the plaintiff be divorced a vinculo matrimonii from the defendant. In the course of the proceedings and after that decree the court refused and denied the defendant's motion and petition for permanent alimony. From the decree and from that order the defendant noted the appeals in No. 28 and No. 30 on the Docket of this court for the current term. After the decree the court on August 26th, 1938, ordered that the plaintiff pay defendant's counsel $2500 for their professional services in her behalf, and on September 29th, 1938, it ordered that pending the appeal the plaintiff pay the defendant $300 per month as alimony pendente lite, and a further fee of $500 to her counsel for services in connection with the appeal. From those orders the plaintiff noted appeals No. 29 and No. 31, on the same Docket. The four appeals are in one record, were argued, and will be considered together.

The appeal in the principal case presents two important questions, one, what is the true meaning of the word "voluntarily", and the phrase "beyond any reasonable expectation of reconciliation" found in the Five Year Separation provision of Code Art. 16, sec. 38, as amended by Chapter 396 of the Acts of 1937, and, two, is the evidence in this case sufficient to support a finding that the separation of the parties was voluntary and beyond any reasonable expectation of reconciliation within that meaning?

In dealing with the second question weight must be given to the consideration that the plaintiff assumed the burden of proving the allegations of his Bill by evidence of the quality and quantity required to support a decree of divorce. 19 C.J. 125; 17 Am.Jur. 336. The measure of proof required in cases such as this which involve no question of moral turpitude is as in ordinary civil cases a preponderance of the evidence. 17 Am.Jur. 336. Nevertheless the preponderance should be patent and definite and not strained or dubious, but if it is clear and definite it is enough even though it leave a residuum of doubt. 19 C.J. 125, 144; Ellett v. Ellett, 157 N.C. 161, 72 S.E. 861, 39 L.R.A.,N.S., 1135, Ann.Cas.1913B, 1216; Anderson v. Anderson, 78 W.Va. 118, 88 S.E. 653, 2 A.L.R. 1620; 17 Am.Jur. 336. Preponderance, as thus used means that the weight of the evidence tested by the number and character of the witnesses who give it, the inherent probability of the truth of their testimony, their interest in the issue, their bias, their demeanor on the witness stand, and the manner in which they testified, inclines more heavily to establish the existence or non existence of facts in respect to which it is offered, than evidence to the contrary. Words and Phrases, First, Second, Third and Fourth Series.

In considering the contrasting stories submitted by the parties of the vicissitudes and infelicities of their married life, it is useful to consider briefly their situation at the time of their marriage and separation, their background and their personal characteristics.

Joseph I. France was a widely educated man, and held degrees in letters and in medicine. He graduated from Hamilton College, and in medicine from the College of Physicians and Surgeons in Baltimore, he attended Clark College and Leipzig University, and the Johns Hopkins Medical School, and for a short time practiced medicine in Baltimore.

He came to Port Deposit in Cecil County in 1897 and resided there with occasional absences until his death. At some time, not shown by the record, he married Evelyn S. Tome with whom he lived until her death on April 22nd, 1927.

He did not practice his profession after 1908, but at that time he appears to have been in the possession of a large fortune, he operated Mt. Ararat Farms near Port Deposit which he later sold for $150,000, he appears to have been interested in the stock market, he traveled extensively, in later years took an active interest in politics and was a United States Senator from 1917 to 1923.

In 1924 while a visitor in Russia he met Tatiana V. Dechtereva, the defendant in this case, who was at that time some seventeen or eighteen years of age. She was a daughter of Vladimir Dechtereva and Tatiana Kassathine Restovskaya. When she was sixteen her father, who "was of noble birth", was shot while she was carrying food to him in a Russian prison where he had been placed by the Bolshevik party of Russia, and her life at that time was passed in an atmosphere of bloodshed and terrorism and fear which appears to have left deep and indelible scars on her mind and spirit, which have not healed.

Her family history showed a predisposition to mental illness, she herself was emotionally unstable, and suffered from time to time from attacks of nervous or mental illness of varying degrees of severity characterized by depression, fear, agitation and physical collapse, and in 1937 she suffered from an illness which justified the diagnosis of purpura haemorrahagica, a disease characterized by copious hemorrhages from the mucous membranes.

She had nevertheless a mind of excellent quality. She spoke three languages, Russian, French and English, very well, and had some knowledge of Italian and German, and was occupied at times in the translation of books. She was a devout member of the Russian Catholic Church and apparently conscientious in her observation of its feast and fast days.

Before her marriage she lived with her mother in Moscow. The family was without means, her mother was employed as an interpreter and translator there for the Moscow correspondent of the Chicago Daily News, and it may be inferred that it was through that connection that she, and through her her daughter, met Dr. France in 1924.

The mother said, and there is no contradiction of her statement, that Dr. France proposed to Her daughter in 1924, but for obvious reasons there could have been no marriage then for his first wife did not die until April 22nd, 1927, about three months before his marriage to the defendant. At that time it may be inferred from Dr. France's testimony that he knew of the mental and physical condition of the woman he married, for he said:

"Q. Well then, you had an ample opportunity of knowing of your wife's physical and mental condition long before you married her? A. I would say not. In a general way I knew of her condition, yes.

"Q. That's what I say, you knew her some years before you married her, about four years? A. Not so much, no.

"Q. About three years? A. I think it was about three years.

"Q. So that you had occasion to observe her in those three years before you married her? A. Yes."

They were married first by Harry Chatonet, assistant to the Mayor of Paris, and later according to the rites of the Russian Orthodox Church by Sergius Bulgakov, a priest of that church. On June 17th, 1927, about ten days before the marriage, the parties executed an antenuptial agreement under which each party waived and released his or her marital rights in the property and estate of the other. At that time it may be noted that she had neither property nor expectations of property while Dr. France was a very wealthy man. He was then fifty-four years old and she twenty-one.

After a wedding trip of about two months, Dr. France returned to this country, but for some reason she declined to return with him at the time, but he returned something over a month later and brought her and her mother back with him, and she remained with him at their home in Cecil County with occasional absences until August 1929, when he accompanied her and her mother on a trip to Europe. She returned to their home in June 1930 and except for temporary absences remained with him until September 21st, 1931.

In April 1931 she left their home at Port Deposit and went to New York where she remained with her mother for a period which Dr. France at one time said was three months, at another two months.

The evidence concerning the circumstances of that separation is conflicting. Mrs. France said that she went to New York to attend her church in Russian Easter Season, that Dr....