Thiess v. Thiess

• Decision Date: 02 December 1914
• Docket Number: 3.
• Citation: 92 A. 922,124 Md. 292
• Parties: THIESS v. THIESS.
• Court: Maryland Court of Appeals

92 A. 922

124 Md. 292

THIESS v. THIESS.

No. 3.

Court of Appeals of Maryland

December 2, 1914

Rehearing Denied Jan. 20, 1915.

Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge.

"To be officially reported."

Bill by Mary C. Thiess against Lambert H. Thiess. From a decree for complainant, defendant appeals. Reversed, and bill dismissed.

George W. Cameron, of Baltimore, for appellant. Charles Lee Merriken, of Baltimore, for appellee.

BRISCOE J.

The bill in this case was filed on the 12th of February, 1913, by a wife against her husband, for a divorce a vinculo matrimonii, on the ground of adultery. By the fourth paragraph of the bill, it is averred that the plaintiff ever since her marriage has conducted herself as a chaste dutiful, and affectionate wife, but that the defendant Lambert H. Thiess, on divers occasions, has assaulted and beat her; that heretofore, to wit, on or about the 8th day of July, 1912, she discovered that her husband had been consorting with lewd and abandoned women; and that from and after this date she refused to live with him, and that her separation has continued since that date. By the fifth paragraph, it is averred that on or about the 8th day of July, 1912, suspicions which she had previously entertained respecting the conduct of her husband were confirmed, and on or about this date she discovered that her husband had committed the crime of adultery with one Anna Vitak and other lewd and abandoned women whose names are unknown; that she had not lived with her husband since the discovery of the adulteries and has not condoned or forgiven his offenses. The bill then prays for a divorce a vinculo matrimonii, on the ground of adultery, the care and custody of the infant children, their support by the husband, permanent alimony and for general relief. On the 24th of February, 1913, the defendant answered the bill, denying the allegation that he had been guilty of the acts of adultery as charged in the bill, and also denying each and all the material averments contained therein. By the fourth paragraph of the answer, it is alleged that any struggles of the plaintiff to support either herself or the children are entirely the result of her own wishes and determination, since on the date therein stated this defendant was driven from the home that had been bought and paid for by the efforts of the defendant and given to the plaintiff, and at that time he was informed by the plaintiff that she wanted neither his presence nor his support; that it has always been his desire to live with and support the plaintiff and his children, and is now his desire, but that he is restrained from so doing by the plaintiff. The fifth paragraph of the answer further avers that in addition to the premises 2106 East Madison street which was bought by the defendant and given to the plaintiff some time ago, that recently the plaintiff has acquired the premises 2122 East Monument street, where she is conducting a grocery store to advantage and profit. The case was heard upon bill, answer, and proof, and from a decree of the circuit court of Baltimore city granting an absolute divorce, permanent alimony, and the custody of the children, this appeal has been taken.

The plaintiff and defendant were married on the 22d day of June, 1887, in the city of Baltimore, and lived together as husband and wife until the 8th day of July, 1912. Upon this last-named date, after a violent and turbulent interview between the parties, resulting in an announcement by the wife that she would not live with him longer, the defendant left the home, and they have not lived together since. The issue of the marriage consists of five children, the oldest being about 18 years, and the youngest about 8 years.

the single question in the case is whether the charge of adultery as alleged in the plaintiff's bill is sustained by the proof, as disclosed by the record. In other words, whether the plaintiff has met the burden of proof, required in such cases, to entitle her to the relief sought by her bill.

It is conceded that there is no direct proof whatever of the commission of adulterous intercourse between the defendant, and the corespondent, Anna Vitak; but it is contended that there are such facts and circumstances proved by the record as to lead to the conclusion of guilt "by fair inference, as a necessary conclusion." The general rules of law concerning cases of this character have been announced by the decisions of this court, and cannot admit of any dispute. Kremelberg v. Kremelberg, 52 Md. 553; Shufeldt v. Shufeldt, 86 Md. 529, 39 A. 416; Rasch v. Rasch, 105 Md. 504, 66 A. 499; Robbins v. Robbins, 121 Md. 695, 89 A. 1135; Marshall v. Marshall, 122 Md. 694, 91 A. 1067. In Kremelberg's Case, supra, this court, following the rules established by the English Ecclesiastical Courts, said:

"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 eyewitnesses, 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

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