Kremelberg v. Kremelberg

• Decision Date: 17 July 1879
• Citation: 52 Md. 553
• Parties: GERTRUDE J. KREMELBERG v. JOHN D. KREMELBERG.
• Court: Maryland Court of Appeals

52 Md. 553

GERTRUDE J. KREMELBERG v. JOHN D. KREMELBERG.

Court of Appeals of Maryland

July 17, 1879

Appeal from the Circuit Court of Baltimore City.

The opinion of the court, together with the dissenting opinions furnish a statement of the case.

The cause was argued before BARTOL, C.J., BOWIE, MILLER, ALVEY and ROBINSON, JJ.

Bernard Carter and I. Nevett Steele, for the appellant.

Charles Marshall, Samuel H. Tagart and William F. Frick, for the appellee.

Robinson J., delivered the opinion of the court.

This is a bill filed by the appellee against his wife, the appellant for a divorce a vinculo, on the ground of adultery; and this appeal comes to us from a decree of the court below, by which the marriage was dissolved, the custody of the children awarded to the complainant, and a certain deed of separation vacated.

The parties to this controversy were married in Baltimore City, in 1862; and the issue of that marriage was a son and two daughters, all of whom are now living.

In the summer of 1871, the complainant took his wife and children to Europe and returning to this country in April following, he left them in Bremen, his native place, with his family.

The bill charges adulterous intercourse between the appellant, and a certain Baron Von Brunneck, in Switzerland, in August, 1873. And the first question is, whether this charge is sustained by the testimony?

The burden of proof is upon the complainant, and the evidence must establish affirmatively that actual adultery was committed, since nothing less than the carnal act itself can lay the foundation of a divorce for adultery.

Direct proof, that is, the evidence of eye-witnesses, is not required, for such is the nature of the offense and the secret and clandestine manner in which it is committed, that proof of this kind is in most cases unattainable; yet where it is sought to be inferred from circumstances, the latter must lead to the conclusion of guilt by fair inference, as a necessary conclusion. Loveden v. Loveden, 4 Eng. Ecc. 461.

As to what facts shall, and what shall not, constitute proof of adultery, no general rule can be laid down, because the same presumptions do not always follow the same facts, the weight of presumptions depending upon the character, habits and situation of the parties.

The only general rule to be laid down on the subject, says Lord Stowell,

"Is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations; neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The rational and legal inferences from such facts must be the same." Loveden v. Loveden, 4 Eng. Ecc. 462.

Artificial and technical rules, however, afford but little aid in determining questions of this kind, for after all, the question of guilt or innocence depends upon the facts and circumstances of each particular case.

Assuming then in this case, that the respondent is innocent of the offense charged against her, and recognizing in their broadest sense, the liberal and humane principles by which evidence in cases of this kind is to be considered, and painfully sensible of the consequences necessarily resulting from the judgment about to be rendered, we are obliged to say, after a deliberate consideration of all the testimony in the record before us, that the charge of adultery against the respondent has been fully and conclusively established.

It would serve no good purpose to review in detail, the proof upon which this conclusion has been reached, and we shall content ourselves by saying that it is based upon facts and circumstances of the most conclusive character--upon the secret correspondence between the respondent and Von Brunneck, and her own declarations to her husband, when confronted with this correspondence, "that she loved Von Brunneck next to her God," "that she believed he had been sent into this world to make her happy," "and that she would not give him up."

It is impossible to reconcile the testimony before us with the innocence of the respondent, and we must therefore infer her guilt. 2 Bishop on Marriage & Divorce, 620.

Assuming then that the charge of adultery has been established, the question is whether any reasons exist why the complainant should not be entitled to a divorce?

It is true a husband may forgive his wife, however flagrant may have been her guilt, and it is equally true that if he has forgiven her, such forgiveness will constitute a bar to a bill for divorce.

We do not understand it to be contended that there has been any forgiveness or condonation in express terms on the part of the complainant; but the argument is, that the lapse of time between the discovery of his wife's guilt, and the filing of this bill, a period of three years and a half, taken in connection with the deed of separation of October, 1874, and the circumstances under which it was executed, amount in fact to a condonation of the offense, and constitute therefore a bar to the relief now prayed.

No case has been referred to in which it has been held that the mere lapse of time will in itself operate as a bar to a divorce, on the ground of adultery; and we apprehend none can be found, unless it be cases based upon statutory provisions. Ferres v. Ferres, 1 Hag. Con. 130; D'Aquilar v. D'Aquilar, 1 Hag. Ec. 773; Cood v. Cood, 1 Curteis Ec. 755.

Where a party has slumbered on his rights, and with full knowledge, has seemingly acquiesced in the wrong or injury done him, a court of equity will lend an unwilling ear to his complaint. "The first thing," says Lord Stowell, "the court looks to when a charge of adultery is preferred, is the date of the charge relatively to the date of the criminal fact charged and known by the party, because if the interval be very long between the date and knowledge of the fact, and the exhibition of them to this court, it will be indisposed to relieve a party who appears to have slumbered in sufficient comfort over them, and it will be inclined to infer either an insincerity in the complainant, or an acquiescence in the injury, whether real or supposed, or a condonation of it. It therefore demands a full and satisfactory explanation of this delay, in order to take it out of the reach of such interpretations."

Nor do we understand that it is contended, that a deed of separation will in itself constitute a bar. This question was argued by eminent counsel, and fully considered in J. G. v. H. G., 33 Md. 401, and it was held that a voluntary deed of separation did not operate as a bar to a petition for divorce. And in support of this, the court refers to a number of English decisions, and we have not been able to find a case in which a contrary doctrine has been held.

So we think it is quite clear that neither lapse of time nor mere articles of separation will, when separately considered, operate as a bar; and it is equally clear, we think, that they cannot have this effect when combined, unless there be other circumstances to show that the application was not made bona fide, but for some sinister or collateral purpose. Matthews v. Matthews, 1 Swab. & Trist. 161.

But whatever presumptions may arise in this case from lapse of time, and whatever explanation may be required of the complainant, in regard to the causes of this delay, and the good faith in which his application is made, the proof in the record fully and satisfactorily shows the motives, feelings and convictions, by which he was governed in all he said and did from the moment he discovered his wife's infidelity, to the filing of the present bill.

To understand these, it will be necessary to refer briefly to some of the facts tending to explain the motives by which he was governed.

As we have seen, the complainant left his wife and children in Europe. In the summer of 1873 he went back to meet them, and to bring them home on his return. Immediately upon his arrival at Baden, he discovered the evidences of his wife's adulterous intercourse with Von Brunneck, and from that moment all conjugal relations between them ceased. So soon as the necessary arrangements could be made, he sailed with his wife and children for New York, having written before his departure to her father, Mr. Jenkins, to meet them upon their arrival. Mr. Jenkins did not, however, meet them, and the complainant came to Baltimore with his family, but instead of going to his own house, he took them to the Carrollton Hotel, where at his request they were met by Mr. Jenkins.

In the interview that followed, the complainant insisted: 1st. That his wife should go to her father's house and remain there six months under the observation of Mrs. Jenkins, who at the end of that time was to report to the complainant as to her deportment.

2nd. That his son should live with him.

3rd. That the two girls should live with their grandfather in the same house with their mother, not under her care but under that of Mrs. Jenkins.

After some discussion these demands were reluctantly acceded to by Mr. Jenkins. This arrangement was made for the purpose of not only testing the character and deportment of his wife, but also his own feelings, and to ascertain whether it was possible to forgive her offense and take her back as his wife. It is obvious that the complainant was most anxious to avoid the scandal, shame and mortification to his children and himself, resulting from the exposure of his wife's infidelity.

At the end of the appointed time Mrs. Jenkins made a satisfactory report in regard to Mrs....