KLINE v. KLINE

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Docket Number

[No. 36, October Term, 1940.]

Attorney(S)

Edward A. Greenstein and Avrum K. Rifman, for the appellant. Paul T. Freund, for the appellee.

Judges

DELAPLAINE, J., delivered the opinion of the Court,

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Smart Summary

Factual and Procedural Background

Ethan B. Kline (appellant) filed a bill in the Circuit Court of Baltimore City asking for a divorce a vinculo matrimonii from his wife, Elizabeth Kline, on the ground of voluntary separation for five consecutive years. In response, Elizabeth Kline filed a cross-bill alleging desertion. The trial court granted the wife a divorce on her cross-bill and awarded permanent alimony of six dollars a week. The husband appealed. The appeal is from the Circuit Court of Baltimore City (O'DUNNE, J.).

Relevant factual background established in the opinion: the parties were married December 24, 1926. They lived together for more than a year. In March 1928 Mrs. Kline left on a trip to La Plata to visit a daughter; immediately afterward the husband shipped her trunk, wrote that he was closing the house and going to live with his son, and later refused her pleas to resume marital relations. The husband advanced two principal charges to justify his separation: that his wife infected him with a venereal disease in 1927, and that she contemplated a February 1928 trip to New York with a man named Harry Morgan. The trial record included the wife's testimony denying knowledge of Morgan, denying the venereal disease diagnosis by her physician, and asserting repeated requests for reconciliation. Financial facts in the record include the wife's part‑time earnings of about four or five dollars a week due to arthritis, the husband's regular employment with a salary of about ninety dollars a month, and prior payments by the husband of twenty dollars per month by order of a magistrate.

Legal Issues Presented

Whether communication of a venereal disease by a spouse (who knows of the infection) constitutes extreme cruelty sufficient for divorce.
Whether the evidence in this case (including alleged disease and circumstantial items such as store purchases) was sufficient to support a finding of adultery.
Whether offers of reconciliation by the offending spouse prevent a later finding of desertion, and when refusal to reconcile may itself constitute desertion.
Whether the separation between the parties was "voluntary" under Acts of 1937 (ch. 296, Code 1939, art. 16, sec. 40) so as to permit a divorce for five years' voluntary separation.
Whether the husband's claim that his desertion had been condoned by the wife was supported by the evidence.
Whether the permanent alimony award of six dollars per week was excessive given the parties' financial circumstances (Code, art. 16, sec. 17).

Arguments of the Parties

Appellant's Arguments (Ethan B. Kline)

He alleged that his wife infected him with a venereal disease in 1927 and that this justified his separation on grounds of cruelty.
He alleged that his wife had contemplated a trip to New York in February 1928 with a man named Harry Morgan, arguing this and related circumstantial evidence (including an expensive store bill) as proof of adultery or unchastity.
He contended that, even if there had been some reconciliation, his wife had condoned his conduct (i.e., that his desertion had been condoned).
He argued the alimony award to his wife was excessive relative to his income and the wife's own earnings.

Appellee's Arguments (Elizabeth Kline)

She denied the venereal-disease charge, testifying that her physician never diagnosed such a disease and that the husband later described her ailment as "only a little womb trouble."
She denied knowing anyone named Harry Morgan and denied statements attributed to her (including the alleged admission quoted by the daughter-in-law that she was "sorry she had been untrue").
She asserted repeated, good‑faith requests for reconciliation and that she "begged him a million times" to live together again.
She presented her financial situation: part‑time earnings of about four or five dollars a week because of arthritis, limiting her ability to work full time.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McMahen v. McMahen, 186 Pa. 485, 40 A. 795	That communication of a venereal disease by a spouse who knows of the condition may constitute extreme cruelty; also that sufficiency of evidence of venereal disease is a question of fact.	The court acknowledged the case as stating the principle but held that here there was no medical testimony or corroboration to prove either spouse had a venereal disease, so McMahen's principle did not support the appellant's charge.
Holmes v. Holmes, 186 Iowa 336, 170 N.W. 793	Authority supporting the view that communication of a venereal disease may be extreme cruelty and that proof is a question of fact.	The court cited Holmes alongside McMahen to show the established principle, then found the record lacked the necessary proof to invoke it in this case.
Renner v. Renner, 177 Md. 689, 12 A. 2nd 195, 197	The burden of proof in divorce actions is on the complainant; circumstantial evidence must be sufficient to lead to adultery as a necessary conclusion, not mere suspicion.	The court applied Renner to reject the appellant's adultery claim, holding the circumstantial items (e.g., the store bill) were insufficient to warrant a decree for adultery.
Buckner v. Buckner, 118 Md. 101, 112, 84 A. 156, 160	Authority for the propositions that (1) the law will not countenance living apart without grave cause and (2) offers of reconciliation affect the characterization of subsequent separation or desertion.	The court relied on Buckner to conclude that Mrs. Kline's repeated offers to resume marital relations and the husband's refusal undermined any claim that the separation was voluntary and supported the finding of desertion against the husband.
Vanderburgh v. Vanderburgh, 152 Minn. 189, 188 N.W. 276	Support for the general rule regarding reconciliation efforts and the characterization of separation or desertion.	Cited along with Buckner as authority for treating the wife's overtures and the husband's refusal as relevant to desertion and to the requirement that living apart be for grave cause.
France v. Safe Deposit Trust Co., 176 Md. 306, 326, 4 A. 2nd 717, 726	Interpretation of the term "voluntary" in the context of a common act—requiring willing concert by the parties when used of a joint relationship.	The court applied France to interpret the 1937 statute: a "voluntary separation" requires an agreement or willing concert to live apart, which was absent here because Mrs. Kline sought reconciliation and did not agree to live apart.

Court's Reasoning and Analysis

The court proceeded through the contested issues by applying established legal principles to the record evidence.

On the venereal-disease/cruelty charge: the court explained the legal rule that if a spouse, knowing of a venereal disease, continues sexual relations and communicates it, the conduct may amount to extreme cruelty; however, the court emphasized that the diseased spouse's knowledge is an essential element because it supplies wilfulness. The court then reviewed the record and found no medical testimony or corroboration that either party suffered a venereal disease. The unsupported averment by the appellant therefore failed to establish cruelty or adultery.

On the adultery charge based on circumstantial evidence: the court restated Maryland law that the burden is on the complainant and that circumstantial evidence must lead to adultery not merely by fair inference but as a necessary conclusion. The court applied Renner to determine that the store bill and other circumstantial items did not produce the required conviction of guilt and only raised suspicion, which is insufficient.

On desertion and reconciliation: the court recognized the established rule that a spouse who initially separates without cause is not thereafter guilty of desertion if that spouse, in good faith, seeks reconciliation and offers to return, and the other spouse refuses. Conversely, after overtures in good faith, a persistent refusal to resume cohabitation may constitute desertion by the refusing spouse. Applying those principles and authorities (Buckner, Vanderburgh), the court found Mrs. Kline consistently sought reconciliation and the husband positively refused, so the separation was not voluntary on her part.

On the statutory ground of voluntary separation (Acts 1937, ch. 296; Code 1939, art. 16, sec. 40): the court interpreted "voluntary" to require agreement or willing concert to live apart. Because Mrs. Kline repeatedly offered to resume the marriage and did not agree to live apart, the statutory five‑year voluntary separation ground did not apply to the husband's claim.

On the condonation claim: the court observed that the husband testified he never cohabited with his wife since 1928; a party cannot successfully rely on an act (cohabitation) when he has denied it under oath. Even if a single instance of cohabitation had occurred, there was no evidence it occurred within three years prior to the filing of the bill; thus condonation was not established.

On alimony: applying Code, art. 16, sec. 17 and considering the parties' financial circumstances (wife earning four or five dollars a week, limited by arthritis; husband earning about ninety dollars a month and previously ordered to send twenty dollars per month), the court concluded the award of six dollars a week permanent alimony to the wife was not excessive.

Holding and Implications

Decree affirmed, with costs.

Implications and direct effects:

The trial court's decree granting Elizabeth Kline a divorce a vinculo matrimonii on her cross‑bill for desertion was affirmed.
The award of permanent alimony to the wife at the rate of six dollars per week was upheld as not excessive.
The appellant's allegations of cruelty based on communication of venereal disease, and of adultery based on circumstantial evidence (including a store bill), were rejected for failure of proof; the record lacked medical or corroborative evidence to support those charges.
The court interpreted the 1937 statute to require willing concert to categorize a separation as "voluntary," and concluded that willingness was absent here because the wife repeatedly sought reconciliation.

The opinion does not announce or claim to establish a broader new precedent beyond the application of existing authority to the facts of this case; its direct legal consequence is the affirmance of the trial court's decree and alimony award.

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ETHAN B. KLINE v. ELIZABETH KLINE

Divorce — Communication of Disease — Adultery — Desertion — Refusal of Reconciliation — Voluntary Separation — Condonation of Desertion — Alimony.

If a spouse, knowing that he or she is afflicted with a venereal disease, continues to maintain sexual relations, and communicates the disease to the other spouse, such action constitutes extreme cruelty. p. 13

In order that communication of venereal disease constitute cruelty, the diseased spouse must have known his condition, in order to impart the element of wilfulness to the act. p. 13

The sufficiency of evidence of venereal disease, whether to raise presumption of adultery or to show the communication of the disease to the other spouse, involves a question of fact. p. 13

The evidence necessary to entitle one to a decree of divorce 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, and it is insufficient if it merely raises a suspicion of unchastity. p. 14

Even though one spouse has separated from the other without cause, if he or she seeks a reconciliation in good faith and offers to return, and the other spouse refuses the overtures, the former is not guilty of desertion thereafter. p. 14

After offers of reconciliation have been made in good faith by one spouse, though offending in the first instance, a refusal by the other spouse to resume cohabitation may constitute desertion on the latter's part. pp. 14, 15

The spouse offending in the first instance must in good faith exercise all reasonable efforts to right his or her wrong, and the other spouse is entitled to a reasonable time in which to consider the overtures for reconciliation before a refusal to resume the marital relationship is converted into a desertion by the spouse so refusing. p. 15

The law will not countenance the living apart of a husband and wife except for grave and weighty causes. p. 15

In order that a separation of husband and wife can be regarded as voluntary within the meaning of Acts 1937, ch. 396, making a voluntary separation for five years ground for a divorce, there must be an agreement of the parties to live apart, the word "voluntary," when used in reference to a common act of two or more persons affecting their common relationship, meaning action in willing concert in the doing of the act. p. 15

A husband cannot contend that his desertion of his wife has been condoned by her when he testifies that he has never cohabited with her since their separation. pp. 15, 16

Where the wife, obtaining a divorce, had been earning four or five dollars a week, she being, by reason of arthritis, able to do only part time work, and the husband was regularly employed at a salary of about ninety dollars a month, an award to her of six dollars a week permanent alimony was not excessive. p. 16

Decided December 17th, 1940.

DELAPLAINE, J., delivered the opinion of the Court,

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 six dollars a week. The husband appealed from the decree.

The parties in this case were married on December 24th, 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. He 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; Holmes v. Holmes, 186 Iowa 336, 170 N.W. 793; 17 Am. Jur., Divorce and Separation, secs. 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 fair inference but as a necessary conclusion. In considering circumstantial evidence, the court should exercise care and circumspection and should never hold that adultery had 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 the truth of the charge and if it does nothing more than raise a suspicion of unchastity it is insufficient to warrant a decree. Renner v. Renner, 177 Md. 689, 12 A. 2nd 195, 197. Obviously, the store bill is insufficient to prove infidelity or abandonment.

It is generally accepted that even though one spouse has separated from the other without cause, if he or she seeks a reconciliation in good faith and offers to return, and the other spouse refuses the overtures, the former is not deemed guilty of desertion thereafter. After offers of reconciliation have been made in good faith by one spouse, though offending in the first instance, a refusal by the other spouse to resume cohabitation may constitute desertion on the latter's part. The spouse offending in the first instance must in good faith exercise all reasonable efforts to right his or her wrong, and the other spouse is entitled to a reasonable time in which to consider the overtures for reconciliation before a refusal to resume the marital relationship is converted into a desertion by the spouse so refusing. The law will not countenance the living apart of a husband and wife in Maryland except for grave and weighty causes. Buckner v. Buckner, 118 Md. 101, 112, 84 A. 156, 160; Vanderburgh v. Vanderburgh, 152 Minn. 189, 188 N.W. 276; 17 Am. Jur., Divorce and Separation, secs. 112, 113.

Under the divorce statute passed by the Legislature in 1937, the court may decree a divorce a vinculo matrimonii on the ground of voluntary separation of husband and wife, without any cohabitation, for five consecutive years prior to the filing of the bill of complaint, and without any reasonable expectation of reconciliation. Acts of 1937, ch. 296, Code 1939, art. 16, sec. 40. But Mrs. Kline testified that she has consistently expressed her desire to continue the marital relationship. As she expressed it, she "begged him a million times" to live with her again. It is manifest that this is not a case of voluntary separation. In order that a separation of husband and wife can be regarded as voluntary within the meaning of the statute, there must be an agreement of the parties to live apart. The word "voluntary" signifies willingness. When used in reference to an act of an individual, it means that he acted of his own free will; when used in reference to a common act of two or more persons affecting their common relationship, it means that they acted in willing concert in the doing of the act. France v. Safe Deposit Trust Co., 176 Md. 306, 326, 4 A. 2nd 717, 726.

A further contention of the appellant is that his desertion had been condoned by his wife. Mrs. Kline stated that when her husband called to see her in Washington, she begged him again to take her back, and he went with her "as a husband" in that city. But the appellant testified that he never cohabited with her in Washington or anywhere else subsequent to their separation in 1928. A party should not be allowed to rely on a certain act, when he has denied under oath that he had committed such an act. Moreover, even assuming that there had been cohabitation on one occasion, there is no testimony that cohabitation occurred within three years prior to the filing of the bill of complaint.

Finally, the appellant complains that the amount of alimony allowed to Mrs. Kline is out of proportion to his income. The appellant relied on the statutory provision that the court shall not award alimony unless it appears that the wife's income is insufficient to care for her needs. Code, art. 16, sec. 17. Mrs. Kline says she has been earning four or five dollars a week, but on account of arthritis she is able only to do part time work. The appellant has regular employment at a hospital with a salary of about ninety dollars a month. Prior to the institution of these proceedings he had been sending his wife twenty dollars per month by order of a magistrate. It is the opinion of the court that the award of six dollars a week is not excessive in this case.

Decree affirmed, with costs.