Pontorno v. Pontorno, 318

• Decision Date: 07 April 1970
• Docket Number: No. 318,318
• Citation: 263 A.2d 820,257 Md. 576
• Parties: Nancy L. PONTORNO v. Gervasio PONTORNO.
• Court: Maryland Court of Appeals

Page 576

257 Md. 576

263 A.2d 820

Nancy L. PONTORNO v. Gervasio PONTORNO.

No. 318.

Court of Appeals of Maryland.

April 7, 1970.

Charles W. Bell, Rockville (John T. Bell and Bell & Bell, Rockville, on the brief), for appellant.

Sebert H. Keiffer, Washington, D. C., (Vallario & Keiffer, Washington, D. C., on the brief) for appellee.

Before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and DIGGES, JJ.

FINAN, Judge.

This case is before us on appeal from a decision of the Circuit Court for Prince George's County which granted the appellee, Gervasio Pontorno, an a vinculo matrimonii divorce from appellant, Nancy Pontorno, and the custody of their two children. The parties were married in 1965. They separated for a period of one week in 1967 after the husband found his wife together with a. Mr. Green in a parking lot late one night. The couple managed to reconcile their differences and resided together until April, 1968. At that time they separated pursuant to a written separation agreement.

Following the separation, the husband became suspicious of the wife's continuous relationship with Mr. Green. He hired two detectives to investigate. Their report apparently substantiated Mr. Pontorno's suspicions, for in April of 1969 he filed a bill of complaint seeking a divorce on the grounds of his wife's adultery. After a hearing, Judge Mathias granted the divorce on the grounds of her adultery and granted custody of the two children to the father. From both of these decisions, the wife appeals.

Appellant contends that the evidence of her adultery is only circumstantial and more specifically that the testimony failed to establish an adulterous disposition on her part. Unfortunately for appellant, the testimony reveals not only the existence of such a disposition but the presence of numerous opportunities for its exercise. The testimony of a neighbor of Mrs. Pontorno revealed that she was under the impression that Mr. Green was the appellant's husband because she would see him enter appellant's apartment at night and observe him leave in the morning wearing a change of clothing. The two detectives testified that they saw the two together in the wife's apartment, that the lights went out and that by the time their surveillance ended, which was 3:00 A.M., he had still not left the apartment. Judge Mathias found that 'we have Mr. Green continuously in this picture. We have him before the separation, during the separation, and even after she was served with the papers alleging adultery.'

Over twenty years ago our predecessors in Dougherty v. Dougherty, 187 Md. 21, 27, 28, 48 A.2d 451, 455 (1946) stated:

'* * * 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 * * *.'

We have had occasion to repeat the same proposition of law all too frequently. Patzschke v. Patzschke, 249 Md. 53, 59, 238 A.2d 119 (1968); Matakieff v. Matakieff, 246 Md. 23, 31, 226 A.2d 887 (1967); Abare v. Abare, 221 Md. 445, 450, 157 A.2d 427 (1960), to cite but a few. The evidence in the present case was very similar to that in Abare.

'* * * The evidence was that on the first of these occasions Mr. Abare picked up Mary Ann at her apartment in Washington during the afternoon, that * * * they were seen to enter Mr. Abare's house at about 6:10 P.M., that at 9:30 the lights went out, that at 10:30 a light came on for a short time in the bathroom, and that up to midnight the co-respondent had not left the house. The evidence as to her visit on March 28 was, in general, similar, except that the watch was continued until 4 A.M. on March 29th, without the co-respondent having been seen to leave the house.' Id. at 449, 157 A.2d at 430.

The Court in Abare, believed that such evidence was sufficient to afford the opportunity for the commissions of the offense, noting, 'the repeated visits of the co-respondent to the husband's home show abundant opportunity * * *.' Id. at 451, 157 A.2d at 431.

We are also aware that this Court has frequently stated that evidence of an adulterous disposition should be established by conduct of the guilty party and the paramour which consists of some public display of intimacy or indifference to propriety that is observed by others. Patzschke, supra, 249 Md. at 60, 238 A.2d 119; Hockman v. Hockman, 187 Md. 340, 347, 50 A.2d 136 (1946). However, in Abare this Court stated that * * * '(W)e think the circumstances of those visits are sufficient to warrant an inference of a disposition to commit adultery. These evening visits were fairly numerous, no one else was present, * * * the visits lasted far into the night.' Id. 221 Md. at 451, 157 A.2d at 431.

In the instant case, the visit by Green to the wife's home, which was observed by the private detectives, lasted until the early hours of the morning. Indeed, there was evidence from which one could...