Kline v. Kline

• Decision Date: 17 December 1940
• Docket Number: 36.
• Citation: 16 A.2d 924,179 Md. 10
• Parties: KLINE v. KLINE.
• Court: Maryland Court of Appeals

16 A.2d 924

179 Md. 10

KLINE v. KLINE.

No. 36.

Court of Appeals of Maryland

December 17, 1940

Appeal from Circuit Court of Baltimore City; Eugene O'Dunne Judge.

Suit by Ethan B. Kline against Elizabeth Kline for a divorce a vinculo matrimonii wherein the defendant filed a cross-bill alleging desertion. From a decree for the wife, the plaintiff appeals.

Affirmed.

Edward G. Greenstein and Avrum K. Rifman, both of Baltimore, for appellant.

Paul T Freund, of Baltimore, for appellee.

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

DELAPLAINE Judge.

Ethan B. Kline, the appellant, applied in the Circuit Court of Baltimore City for a divorce a vinculo matrimonii from his wife, Elizabeth Kline, on the ground of voluntary separation for five consecutive years. On a cross-bill alleging desertion, the Court granted his wife a divorce and permanent alimony at the rate of $6 a week. The husband appealed from the decree.

The parties in this case were married on December 24, 1926. They lived together for more than a year in their home on 37th Street in Baltimore. Both had been married before. In March 1928, Mrs. Kline left on a trip to La Plata to visit a daughter. There was no quarrel before she left home, but immediately afterward her husband shipped her trunk of clothing to her, and wrote her that he was closing the house and going to live with his son, but would help her until she found a job. Mrs. Kline hurried back to Baltimore, and pleaded with him to continue marital relations. But he positively refused. He admitted in the Court below: 'She came in and threw her arms around me, and begged me for another chance, and I told her it was impossible, that I could not go on living with her.'

The appellant, seeking to justify his desertion, raised two charges against his wife. His first charge was that she had infected him with a venereal disease in 1927. It has been established that if a spouse, although knowing he or she is afflicted with a venereal disease, yet continues to maintain sexual relations and communicates the disease to the other spouse, such action constitutes extreme cruelty. Mrs. Kline testified that her physician had never given her such a diagnosis, that her husband said her ailment had been diagnosed as 'only a little womb trouble,' and it was some days later before he accused her of giving him a venereal disease, that he did not consult a doctor, and that the subject was never mentioned subsequently. In order to establish cruelty as the result of communication of a venereal disease, the diseased spouse must have known of the condition in order to impart the element of wilfulness to the act. Sufficiency of evidence of a venereal disease, whether offered to raise a presumption of adultery or to show communication of the disease to the other spouse, is a question of fact which can be determined only from the circumstances of the case. McMahen v. McMahen, 186 Pa. 485, 40 A. 795, 41 L.R.A. 802; Holmes v. Holmes, 186 Iowa 336, 170 N.W. 793, 8 A.L.R. 1534; 17 Am.Jur., Divorce and Separation, §§ 78, 402. The record before us does not contain any medical testimony or any corroboration to show that either the appellant or his wife was afflicted with a venereal disease thirteen years ago or at any other time. The unsupported averment is insufficient to establish a charge of adultery or cruelty.

The appellant's second charge was that his wife had contemplated a trip to New York with a man named Harry Morgan in February, 1928. Mrs. Kline swore that she had never known a man by that name, while her husband testified: 'I never met him. I only know the name from what she told me.' Even if it were true that she went to the railroad station, as the appellant avers, the fact remains that she did not leave Baltimore. It was shown that she had bought some expensive clothing in February, 1928, costing a total of $56.45, less a credit of $2.38, leaving a balance of $54.07; and it was argued that her purchases were evidence of intention to make the trip to New York. The appellant's daughter-in-law quoted Mrs. Kline as saying that she was sorry she had been untrue, but Mrs. Kline denied that she had ever made that statement and further avowed that she had never been untrue to her husband. It is well established in Maryland that the burden of proof in an action for divorce is on the complainant as accuser, and the evidence necessary to entitle the complainant to a decree on the ground of adultery must be sufficient to lead to such a finding not only by a fair inference but as a necessary conclusion. In considering circumstantial evidence, the Court should exercise care and circumspection and should never hold that adultery has been committed unless the offense, and not merely a suspicion thereof, is clearly shown. The evidence must be sufficiently strong and unequivocal to carry conviction of...