Proof of the Wife's Adultery

14 Pages·1998·0.03 MB·English

ThgirW eeL norahS ,tnalleppa eh t (Wife), and the appellee, G.
Hm erew ,)dnabsuH( sppihP drawo arried in Maryland on June 7, 1991.
ialpmoC latnemelppuS a delif OdnabsuH eht ,7991 ,7 yraurbeF n nt for
Absolute Divorce on grounds of the Wife’s adultery. On Februar y
24, 1997, the Wife filed a Supplemental Counter-Complaint fo r
Asdnuorg eht no ecroviD etulosb of the Husband’s adultery. On May
16 an d May 19, 1997, in the Circuit Court for Baltimore County ,
eussi detimil eht no gniraehJ a dleh nagenneH newO nhoJ egdu of the
nemugra dna ecnedive gniraeh cretfA .yretluda fo smialc-ssor t from
bot h sides, he concluded that the Wife had committed adulter y
da dettimmoc dah dnabsuH eht dtaht dna 4991 fo llaF eht gniru ultery
during June of 1996. He, therefore, dismissed both of thei r
Supplemental Complaints on the grounds of recrimination.
This appeal has been taken by the Wife. She contends
1) that the evidence was not legall y
sufficient to support the finding of the
court that she had committed adultery;
2) that Judge Hennegan erroneousl y
t ynomila reh detanimre etnednep lite ; and
3) tylsuoenorre nagenneH egduJ tah dismissed
a contempt proceeding brought by he r
against the Husband without holding a
hearing.
yretludA s’efiW eht fo foorP
The Wi fe does not quarrel with the application by Judg e
Hen negan of the recrimination principle. That doctrine was wel l
surveyed by Judge Powers for this Court in Sami v. Sami , 29 Md .
App. 161, 167-75, 347 A.2d 888 (1975). See also Wallace v .
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Wallace , 290 Md. 265, 278-80, 429 A.2d 232 (1981); Matakieff v .
Matakieff , 246 Md. 23, 35-36, 226 A.2d 887 (1967); Courson v .
Co urson , 208 Md. 171, 174-78, 117 A.2d 850 (1955); and see Md .
Code, Family Law Article, § 7-103(b)(1991). The Wife’s challenge
is restricted to the legal sufficiency of the evidence to prov e
adultery on her part.
A c omplainant may sustain a charge of adultery by producin g
eitisopsid a )1 htob fo ecnediv on on the part of alleged adulterer
aluda timmoc ot ruomarap eht dn tery and 2) an opportunity for them
to do so. L accetti v. Laccetti , 245 Md. 97, 102, 225 A.2d 26 6
(1967); Hockman v. Hockman , 187 Md. 340, 344, 50 A.2d 136 (1946);
Dougherty v. Dougherty , 187 Md. 21, 27-8, 48 A.2d 451 (1946). Of
practi cal necessity, the evidence need only be circumstantial b y
virtue of the fact that because of “the clandestine nature of the
mmoc eht fo ecnedive niatbo oot elbissop ylerar si ti ,esneff ission
of the act by the testimony of eyewitnesses.” Laccetti v .
Laccetti , 245 Md. at 102.
At the time of their marriage, both the Husband and the Wife
were of a mature age. At the hearing on the adultery issue, th e
Husban d testified that he was then sixty-eight years of age .
Althou gh the Wife did not give her age, she had had before he r
mssel on dnabsuH eht ot egairra than nine children by two previous
marriage s. The adultery proved to have been committed by her i n
the F all of 1994 was with her second husband, Larry Harless, t o
whom she was married for eighteen years and by whom she had ha d
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five children. The key witness to the adulterous relationshi p
between the Wife and her ex-husband was their 24-year-old son ,
Russell Harless.
In ter ms of legal sufficiency, the testimony of Russel l
Harless was, in and of itself, sufficient to show both a
disposition and an opportunity to commit adultery by the Wife and
her ex-husband. Russell Harless lived with his father. H e
taf sih detisiv rehtom sih nethw emoh ta saw eh taht deifitse her on
be tween ten and fifteen separate occasions during the critica l
period in question.
Weh ,noitisopsid ot tcepser hti testified that on a number of
occasions he saw them lying down together on the bed in Larr y
fo eno nO .rehto hcae ot esoHlc yrev gniyl ,moordeb s’sselra those
oklaw sselraH llessuR ,snoisacc ed into the room unexpectedly. His
mother jumped up from the bed, adjusting her sweatshirt.
Alt hough not literally necessary in order to make a legall y
suff icient case with respect to disposition, there was als o
testimony from an attorney, Bruce Lambdin, who had been a socia l
friend of both the Husband and the Wife during the early years of
tppa neewteb tA .egairram rieh roximately 10 P.M. and midnight one
even ing, Lambdin was present in Bohager’s nightclub when h e
s taht deifitset eH .yawa econatsid trohs a efiW eht devresb he and
enialpxe eH ”.devlovni yllactisyhp erew“ htiw saw ehs nam eh d that
he meant by that that “they had their arms around each other a t
vgnicnad saw ehS .semit suoira in front of him. They kissed on a
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couple of occasions.” Within a week or ten days, Mr. Lambdi n
repor ted the incident to the Husband in this case. The Husban d
sfiW eht fo erutcip a mih dewoh e’s ex-husband, Larry Harless. Mr.
hoB ta nees dah eh nam eht taLht niatrec yllautriv saw nidbma ager’s
was in fact Larry Harless.
Wi th respect to opportunity, Russell Harless also testifie d
that there were various occasions when his mother and father were
in the bedroom together with the bedroom door locked. Russel l
Ha rless testified that on one occasion his mother specificall y
requested him not to tell the appellee about her trips to her ex-
b I fi taht em dlot rebmemer hI emit eno moM“ :emoh s’dnabsu rought
this matter up that she was coming over [to Larry’s house] all of
the time, it could [affect] her divorce with [the appellee].”
Con struing all of the evidence as well as all reasonabl e
inferences therefrom in a light most favorable to the Husband ,
luda ni degagne dah efiW eht Jtaht noisulcnoc s’nagenneH egdu terous
conduct with her ex-husband, predicated on the combination o f
disposition and opportunity, was not clearly erroneous. Abare v.
Abare , 221 Md. 445, 450, 157 A.2d 427 (1960); Steinla v. Steinla ,
178 Md. 367, 373-74, 13 A.2d 534 (1940).
ynomilA etiL etnedneP
Titnetnoc dnoces s’tnalleppa eh on is that she was erroneously
den ied alimony pendente lite during the pendency of this appeal .
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yllataf si ,revewoh ,drager Tsiht ni noitisop s’tnalleppa eh flawed
procedurally.
A ew ,noitisoporp tcartsba na s fully agree with the appellant
that alimony pendente lite is just as appropriate and, indeed, be
ep eht gnirud sa laeppa na foa ycnednep eht gnirud deriuqer s ndency
.trouoc lairt eht erofeb esac eht f regiaD .v regiaD dM 451 , . 501,
508-09, 140 A. 717 (1927) stated clearly:
In this state it is no longer open t o
question, first, that a wife in a divorc e
ptius degelivirp a si gnideecor or where she is
liv ing apart from her husband and has n o
independent means of her own, and as such she
is entitled to alimony, suit money, an d
reasonable counsel fees; second, that she i s
entitled to the continuance of such alimon y
daeppa na fo ycnednep eht gniru l to this court
an d until its final disposition , as also th e
cost s incident to the record on appeal, an d
reasonable counsel fees in the prosecutio n
thereof.
(Emphasis supplied).
I n gnilretS .v gnilretS dM 541 , . 631, 643, 125 A. 809 (1924),
th e Court of Appeals first discussed alimony pendente lit e
generally and then observed that it may be awarded during th e
pendency of an appeal as surely as it may be awarded during th e
pendency of a suit before the trial court:
Under the rule and the reason therefo r
the court may allow the payment of alimony ,
pending an appeal, and costs and reasonabl e
counse l fees incurred or paid by the wife i n
the pr osecution or defense of an appeal t o
this Court.
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As a result of the ratification of Article 46 of th e
Decl aration of Rights (the so-called Equal Rights Amendment) i n
1972, both the entitlement to alimony pendente lite and th e
ob ligation to pay alimony pendente lite are now gender-neutra l
t fo snoitisop laicnanif evitscepser eht no tnedneped sesutat he two
parties. James v. James , 96 Md. App. 439, 450-53, 625 A.2d 38 1
( ;)3991 nnamfoH .v nnamfoH 05 , Md. App. 240, 243-44, 437 A.2d 247
(198 1). The subject is now covered by Md. Code, Family La w
Article, § 11-102(a), which states:
Ex cept as provided in subsection (b) of thi s
sid rof gnideecorp a ni ,noitce vorce, alimony,
or annulment of marriage, the court may award
alimony pendente lite to either party .
(Emphasis supplied).
Ali mony pendente lite , however, is not a self-executin g
entit lement. It must be applied for in timely fashion, to wit ,
when some litigation ( lite )involving a divorce or an annulment is
actually pending ( pendente ).
ht erofeb gnidnep erew ecroviWd rof stnialpmoc-ssorc eht elih e
Circui t Court for Baltimore County, the Wife timely applied fo r
alimony pendente lite . On November 25, 1996, Judge Robert E .
Cadigan conducted an evidentiary hearing on that issue. O n
December 3, 1996, he awarded the Wife the sum of $2,000 per month
as alimony pendente lite .
The litigation that was then pending and that was the sol e
raison d’etre for the alimony pendente lite concluded probably as
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early as May 19, 1997, when Judge Hennegan dismissed both cross -
compla ints for divorce on the grounds of recrimination. Hi s
deuqesbus saw 91 yaM fo noisice ntly memorialized by his signing of
a writ ten order to that effect on June 6, 1997. For presen t
pen ton si ti ,revewoh ,sesopru cessary to quibble over whether the
laM no detanimret saw noitagiti y 19 or June 6. Even accepting the
later of the two dates, the Wife’s present argument is fatall y
flawed . As of June 6, if not before, the slate of pendin g
l dna naelc depiw saw noitagiti nothing was then pending before the
courts of this State, trial or appellate.
IH egduJ ,6 enuJ fo redro sih n ennegan declared that although
a problem with respect to arrearages had to be worked out, “n o
fur ther payments of alimony pendente lite shall accrue after Ma y
19, 1997.” That declaration may actually have been redundant .
Without anything needing to be said, it would seem that alimon y
pendente lite is automatically terminated with the termination of
the pending litigation to which it applies. Whether by virtue of
ynomila eht ,yllacitatmotua ylpmis ro redro 6 enuJ eh tnednep e lite
iedro neeb dah taht esac siht n red by Judge Cadigan on December 3,
idnep neht noitagitil on saw 1erehT .dne na ot emoc dah ,699 ng; to
w on saw ereht ,ti etil neht etnednep aciderp yrassecen a sA . te for
alim ony pendente lite , there must be actual litigation the n
pending, not a mere possibility of future litigation.
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If and when, but only if and when , the Wife should file a n
ap peal from the trial court’s decision, as she did on July 10 ,
1997, would litigation once again be pending and would alimon y
penden te lite once again become appropriate. If, following th e
filing of her appeal on July 10, the Wife had applied for alimony
p etil etnedne noitarud eht rof of the appellate process, she might
well have been granted it, 1 presumably in the same amount as ha d
been awa rded pending the trial. The Wife in this case, however ,
never timely made any such application.
On June 16, the Wife, by way of an appropriate post-tria l
motion, fi led in the circuit court a Motion to Alter or Amen d
Judgm ent. That motion was denied by Judge Hennegan on June 20 .
Then, in a circuitous and awkward approach to the subject o f
a ynomil etil etnednep yts ehs tahw 61 enuJ no delif osla ehs , led as
a Defendant’s Motion for Stay of Dismissal of Counter Plaintiff’s
Su pplemental Counterclaim, the Alimony Pendente Lite Order Date d
DninraE eht dna 6991 ,3 rebmece gs Withholding Order Dated February
uJ no nagenneH egduJ yb deine3d osla saw noitom tahT .7991 , ne 20.
1 hgim ereht ,ssecorp noitagitiAl eht fo egats taht t eb ot evah llew t
a g retaer noitercsid elbaliava ot eht lairt egduj no eht tcejbus fonomila y
petil etnedne eht ta naht ot elbasivda mees dluow noitercsid hcuS .egats lairt
cover the r era esac fo eht ylrae lscuolovi r,flaeppa fi ti deraeppa tahtht e
ap laep dah neeb nekat ylelos rof eht esoprup fo gnitareneg a noitagnolorpo f
a ynomil etil etnednep rof ,thgim noitercsid decnahnE .os ro raey lanoitidda na
ah oit yrassecen eb ,deedn ynomila fo noitseuq eht eldn etil etnednep eht gnirud
c fo esruo yna eht fi neve ,laeppa suolovirf ylraelc troppus hcus fo noitagnolorp
payme stn ere wyler eem c lnnaeatunq e,edsfino cornceihta rnaht enhittareneg g
,ton si hcuS .laeppa suolovimrf eht ,rof noitavito erofeb noitautis eht ,revewoh
aeppua tI .esac siht ni s erofotereh reven sah eussi na hcus taht ,revoerom ,sr
.wal esac ruo ni nesira
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t deksa saw nagenneH egduJ taTht saw noitom taht fo tsurht eh o
ynomila taht gniralced redsro 6 enuJ sih fo tceffe eht yat ep ndente
lite had stopped accruing as of May 19. Even if alimony pendente
l eti reht ,redro 6 enuJ eht dna yllacitamotua deppots ton dah efore,
had ha d some vitality and even if this circuitous procedura l
approach could somehow be deemed an adequate way of asking fo r
a ynomil etil etnednep a gnidnep ppeal, the motion would still avail
the Wife nothing because of its untimely filing. The litera l
decision of Judge Hennegan which the Wife attacks on this appea l
w91 ,02 enuJ fo noisiced sih sa 97 to deny the stay. That decision
was not in e rror. No award of new alimony pendente lite or n o
prolongation of the original award of alimony pendente lite would
have been proper on June 20, 1997 for the simple reason that n o
appeal was then pending.
This seemingly self-evident proposition was settled by th e
nI .2C981 sa ylrae sa slaeppA fo truo kcabrhoR .v kcabrhoR , 75 Md.
317, 23 A. 610 (1892), the Court of Appeals held:
[I] t it well settled that alimony may b e
allowe d to the wife on application by her ,
after an appeal from an order or decre e
dismissing a bill in divorce proceedings.
The wife could not, in fact, make application
for counsel fees and expenses incident to the
a laeppa eht retfa litnu ,laepp had been taken ,
bwonk evah ton dluoc ehs esuace n in this case,
th at the husband intended to appeal from th e
dimsid woleb truoc eht fo eerce ssing his bill.
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75 Md. a t 319 (Emphasis supplied). Accord Daiger v. Daiger , 15 4
Md. at 508.
AduJ ,delif saw laeppa eht retf ge Hennegan was never asked to
do anything by way of appellate alimony pendente lite and was ,
moc evah dluoc ylbaviecnoc eht erehw noitisop on ni ,erofereh mitted
error. The same Motion for Stay of Circuit Court Order that ha d
earlier been presented to him was instead presented to this Court
and was denied by Chief Judge Murphy on July 23, 1997. The sam e
Motion f or Stay of the Circuit Court Order was then presented t o
the Court of Appeals and denied by Chief Judge Bell on August 22,
1997. The propriety of those denials by this Court and by th e
.detbuCod eb ot ton si slaeppA fo truo suciD .v suciD M 131 , d. 87,
90, 101 A. 697, had held as early as 1917:
Application has been made to this Cour t
[Court of Appeals] for an order requiring the
aa ffitnialp eht yap ot eellepp sufficient sum
for her costs and counsel fee in th e
prosecution of the appeal. This was a
question over which the Court below [tria l
court] had jurisdiction after the appeal wa s
entered. The application should have bee n
made t o the trial Court, and if it had bee n
pres ented there, we have no reason to doub t
that it would have been given du e
consideration.
S osla ee regiaD .v regiaD ;805 ta .dM 451 , abrhoR .v kcabrhoR ck , 75
Md. at 319 (“And although the appeal was taken, the [trial] court
sp eht fo noitcidsiruj dah llit arties, and having jurisdiction, it
ht fo thgir eht ot sa noitseuhq eht enimreted ot rewop eht da e wife
to an allowance for counsel fees and costs.”)