Borne v. Borne

365 A.2d 359, 33 Md. App. 578, 1976 Md. App. LEXIS 383
CourtCourt of Special Appeals of Maryland
DecidedNovember 8, 1976
DocketNo. 98
StatusPublished
Cited by2 cases

This text of 365 A.2d 359 (Borne v. Borne) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borne v. Borne, 365 A.2d 359, 33 Md. App. 578, 1976 Md. App. LEXIS 383 (Md. Ct. App. 1976).

Opinion

Powers, J.,

delivered the opinion of the Court.

By an amended decree signed by Judge Paul Ottinger, the Circuit Court for Washington County granted to Lewis E. Borne, Jr., an absolute divorce from Helen T. Borne, dismissed Mrs. Borne’s cross-bill, and denied her petition to reserve the right to award alimony later.

In her appeal from that decree Mrs. Borne argues that the factual findings of the trial judge concerning the appellant’s disposition to commit adultery were clearly erroneous, and that the evidence in the record does not meet the irreducible minimum standard of proof necessary to substantiate a claim of adultery.

This litigation began on 21 January 1974 when Mr. Borne filed a bill of complaint alleging that the parties were residents of Washington County, that they were married in 1949, that their two children were emancipated, and that Mrs. Borne had committed adultery. He prayed for an absolute divorce. Mrs. Borne answered, and denied the allegation of adultery. Mrs. Borne filed a “Cross-Bill of Complaint” in which she alleged that her husband deserted and abandoned her on 4 January 1972, and prayed that she be granted an absolute divorce, and reasonable counsel fees. The husband’s answer to the cross-bill denied its essential allegations.

With leave of court Mr. Borne filed a supplemental complaint on 7 January 1975, alleging that the parties had [580]*580lived separate and apart consecutively, without cohabitation, for a period of three years. He again prayed for an absolute divorce. The wife answered, admitting the allegations of the supplemental complaint, and requesting the court to reserve jurisdiction over alimony in any decree passed.

Evidence on all issues was taken before the chancellor on 25 November 1975. In a Memorandum Opinion filed with the decree the chancellor stated that Mr. Borne did in fact move out of the marital home on 4 January 1972, and that the parties had not cohabited since that time. The opinion then said:

“There was a great deal of convincing testimony offered that, beginning in September of 1973, a man named Glenn Bitner began to visit Mrs. Borne at her home at 328 Nottingham Road regularly, usually in the evening, and frequently remained until midnight or thereafter. This is not disputed; in fact, it was admitted by both Mrs. Borne and the alleged paramour Bitner. This testimony, of course, establishes the opportunity to commit adultery. Mrs. Borne’s attorney argues, however, that there was no evidence of inclination. The Court disagrees. Mr. Borne and at least one of his witnesses testified that on some of the occasions when Mrs. Borne came to the front door to turn the light on for Bitner when he was leaving, that she (the Defendant) kissed Bitner and the Court oelieves this testimony and finds therefore that there was both opportunity and inclination. The Court finds further that Mrs. Borne was guilty of adultery with Bitner, after the separation, and that such adultery has not been condoned by Mr. Borne, nor has there been any reconciliation between the parties since this adultery was committed. Mr. Borne is therefore entitled to a Divorce A Vinculo Matrimonii on the ground of adultery and, of course, he is also so entitled on the other ground of [581]*581three years continuous separation without cohabitation.
“The Court will award Mr. Borne a Divorce A Vinculo Matrimonii. The Cross-Bill of Mrs. Borne will be dismissed and the request to reserve the right to award alimony at a later date will be denied.”

Preliminarily we note that the decree itself grants the divorce, but does not state a ground. It is often said that, “The opinion does not constitute a part of the decree, and the appeal, of course, is only from the decree.” Brenneman v. Roth, 212 Md. 491, 497, 130 A. 2d 301 (1957); Holmes v. Sharretts, 228 Md. 358, 374, 180 A. 2d 302 (1962). The Court of Appeals has also said, however, that, “Although an appeal is from the action of the court, not from the opinion, the opinion may be looked to for the establishing of matters therein set forth.” Scherr v. Braun, 211 Md. 553, 560-61, 128 A. 2d 388 (1957).

Looking to the opinion to establish the chancellor’s reasons for the decree, we consider it evident that the culpatory ground of adultery was one ground for the divorce, whether or not non-culpatory separation for three years was also a ground. Indications in the decree that the court found Mrs. Borne to be a wrongdoer were dismissal of her cross-bill,1 and denial of her request to reserve the question of alimony.

We have carefully reviewed the evidence upon which the chancellor based his finding of adultery. In the absence of direct proof, of which, as in most such cases, there was none, [582]*582adultery can be found only by inference. The process of drawing inferences is usually approached by the courts on a two step basis. One step requires that there be evidence to prove that the spouse and the companion were together at a time and place and under circumstances which provided them an opportunity to engage in sexual intercourse, should they be so disposed.

As the chancellor noted in his opinion, the;1.- was a great deal of testimony that established that Mrs. Borne and Mr. Bitner, the alleged paramour, on several occasions had the opportunity to commit adultery. It is true that an opportunity must be shown to have existed before a court can be asked to find, by inference, that the man and woman who had the opportunity did in fact commit adultery. The showing of a mere opportunity, although a prerequisite to circumstantial proof of adultery, has little or no evidentiary significance in itself. Countless opportunities, in the sense of an occasion when a man and a woman are present temporarily at a place where no one else is present, occur every day. Ordinarily, such an opportunity means nothing. We must assume respectability and virtue, unless there is evidence to show otherwise.

The other step in the inferential process requires evidence that both the man and the woman in question have an adulterous disposition — that it is the inclination of each one to commit adultery when there is an opportunity to do so. Steinla v. Steinla, 178 Md. 367, 13 A. 2d 534 (1940).

The finding in this case that both Mrs. Borne and Mr. Bitner had the inclination or disposition to commit adultery, and the inference that they did in fact do so, was based entirely upon evidence which the chancellor summarized in these words:

“Mr. Borne and at least one of his witnesses testified that on some of the occasions when Mrs. Borne came to the front door to turn the light on for Bitner when he was leaving, that she (the Defendant) kissed Bitner and the Court believes this testimony and finds therefore that there was [583]*583both opportunity and inclination. The Court finds further that Mrs. Borne was guilty of adultery with Bitner * * *.”

An error in recollection of the testimony may have contributed to the chancellor’s finding of inclination. Review of the record shows that it was not “some of the occasions”, but on only one occasion that there was evidence of a kiss, when Mrs. Borne turned on the porch light for Mr. Bitner when he was leaving. No witness said that “she kissed Bitner.” Chester A. Herbert, who was watching with Mr. Borne, said, “I saw them kiss goodnight.” Mr.

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365 A.2d 359, 33 Md. App. 578, 1976 Md. App. LEXIS 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borne-v-borne-mdctspecapp-1976.