Kremelberg v. Kremelberg

Robinson, J., delivered the opinion of the Court. This is a bill filed by the appellee against his wife, the appellant, for a divorce a vinculo, on the ground of adultery; and this appeal comes to us from a decree of the Court below, by which the marriage was dissolved, the custody of the children awarded to the complainant, and a certain deed of separation vacated. The parties to this controversy were married in Baltimore City, in the year 1862; and the issue of that marriage was a son and two daughters, all of whom are now living. In the summer of 1811, the complainant took his wife and children to Europe and returning to this country, in „ April following, he left them in Br§men, his native place, with his family. The bill charges adulterous intercourse between the appellant, and a certain Baron Yon Brunneck, in Switzerland, in the month of August, 1813. And the first — 555 — question is, whether this charge is sustained "by the testimony ? 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 eye-witnesses, is not required, for such is the nature of the offence 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 he inferred from circumstances, the latter must lead to the conclusion of guilt by fair inference, as a necessary conclusion. Loveden vs. Loveden, 4 Eng. Ecc. Rep., 461. As to what facts shall, and what shall not, constitute proof of adultery, no general rule can be laid down, because the same presumptions do not always follow the same facts, the weight of presumptions depending upon the character, habits and situation of the parties. The only general rule to he laid down on the subject, says Lord Stowell, “Is that the circumstances must he such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations; neither is it to he a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The rational and legal inferences from such facts must he the same.” Loveden vs. Loveden, 4 Eng. Ecc. Rep., 462. Artificial and technical rules, however, afford hut little aid in determining questions of this kind, for after all, the question of guilt or innocence depends upon the facts and circumstances of each particular case. Assuming then in this case, that the respondent is innocent of the offence charged against her, and recognizing — 556 — in their broadest sense, the liberal and humane principles by which evidence in cases of this kind is to be considered, and painfully sensible of the consequences necessarily resulting from the judgment about to be rendered, we are obliged to say, after a deliberate consideration of all the testimony in the record before us, that the charge of adultery against the respondent has been fully and conclusively established. It would serve no good purpose to review in detail, the proof upon which this conclusion has been reached, and we shall content ourselves by saying that it is based upon facts and circumstances of the most conclusive character— upon the secret^ correspondence between the respondent and Yon Brunneck, and her own declarations to her husband, when confronted with this correspondence, “ that she loved Yon Brunneck next to her Grod,” “that she believed he had been sent into this world to make her happy,” “and that she would not give him up.” It is impossible to reconcile the testimony before us with the innocence of the respondent, and we must therefore infer her guilt. 2 Bishop on Marriage and Divorce, 620. Assuming then that the charge of adultery has been established, the question is whether any reasons exist why the complainant should not be entitled to a divorce ? It is true a husband may forgive his wife, however flagrant may have been her guilt, and it is equally true that if he has forgiven her, such forgiveness will constitute a bar to a bill for divorce. We do not understand it to be contended, that there has been any forgiveness or condonation in express terms on the part of the complainant; but the argument is, that the lapse of time between the discovery of his wife’s guilt, and the filing of this bill, a period of three years and a half, taken in connection with the deed of separation of October, 1814, and the circumstances under which it was executed, amount in fact to a condonation of the — 557 — offence, and constitute therefore a bar to the relief now prayed. No case has been referred to in which it has been held that the mere lapse of time will in itself operate as a bar to a divorce, on the ground of adultery ; and we apprehend none can he found, unless it be cases based upon statutory provisions. Ferres vs. Ferres, 1 Hag. Con. Rep., 130; D’Aquilar vs. D’Aguilar, 1 Hag. Eccl. Reps., 773, 3 Eng. Ec. Reps., 329; Cood vs. Cood, 1 Curteis Ec. Reps., 755, 6 Eng. Ecl. Rep., 452. Where a party has slumbered on his rights, and with full knowledge, has seemingly acquiesced in the wrong or injury done him, a Court of equity will lend an unwilling ear to his complaint. “ The first thing” says Lord Stowell, “the Court looks to when a charge of adulteryis preferred^ is the date of the charge relatively to the date of the criminal fact charged and known by the party, because if the interval he very long between the date and knowledge of the fact, and the exhibition of them to this Court, it will he indisposed to relieve a party who appears to have slumbered in sufficient comfort over them, and it will he inclined to infer either an insincerity in the complainant, or an acquiescence in the injury, whether real or supposed) or a condonation of it. It therefore demands a full and satisfactory explanation of this, delay, in order to take it out of the reach of such interpretations.” Nor do we understand that it is contended, that a deed of separation will in itself constitute a bar. This question was argued by eminent counsel, and fully considered in J. G. vs. H. G., 33 Md., 401, and it was held that a voluntary deed of separation did not operate as a bar to a petition for divorce. And in support of this, the Court refers to a number of English decisions, and we have not been able to find a case in which a contrary doctrine has been held. So we think it is quite clear that neither lapse of time nor mere articles of separation will, when separately con — 558 — sidered, operate as a bar; and it is equally clear we think, that they cannot have this effect when combined, unless there he other circumstances to show that the application was not made bona fide, hut for some sinister or collateral purpose. Matthews vs. Matthews. 1 Swab. & Trist., 161. But whatever presumptions may arise in this case from lapse of time, and whatever explanation may be required of the complainant, in regard to the causes of this delay, and the good faith in which his application is made, the proof in the record fully and satisfactorily shows the motives, feelings and convictions, hy which he was governed in all he said and did from the moment he discovered his wife’s infidelity, to the filing of the present hill. To understand these, it will he necessary to refer briefly to some of the facts tending to explain the motives hy which he was governed. As we have seen, the complainant left his wife and children in Europe. In the summer of 1813 he went hack to meet them, and to bring them home on his return. Immediately upon his arrival at Baden, he discovered the evidences of his wife’s adulterous intercourse with Yon Brunneck, and from that moment all conjugal relations between them ceased. So soon as the necessary arrangements could be made, he sailed with his wife and children for New York, having written before his departure to her father, Mr. Jenkins, to meet them upon their arrival. Mr. Jenkins did not however meet them, and the complainant came to Baltimore with his family, but instead of going to his own house, he took them to the Carrollton Hotel, where at his request they were met hy Mr. Jenkins. In the interview that followed, the complainant insisted : 1st. That his wife should go to her father’s house and remain their six months under the observation of Mrs. Jenkins, who at the end of that time was to report to the complainant as to her deportment. — 559 — 2nd. That his son should live with him. 3rd. That the two girls should live with their grandfather in the same house with their mother', not under her care hut under that of Mrs. Jenkins. After some discussion these demands were reluctantly acceded to hy Mr. Jenkins. This arrangement was made for the purpose of not only testing the character and deportment of his wife, hut also his own feelings, and to ascertain whether it was possible to forgive her offence and take her hack as his wife. It is obvious that the complainant was most anxious to avoid the scandal, shame and mortification to his children and himself, resulting from the exposure of his wife’s infidelity. At the end of the appointed time Mrs. Jenkins made a satisfactory report in regard to Mrs. Kremelberg’s character and deportment, and thereupon her father made a formal application to the complainant in behalf of his daughter for a restitution of her conjugal rights. This being refused, a similar demand was made hy Mr. Wallis as counsel for the wife. Then for the first time the complainant determined to disclose’the reasons for his refusal, and placed the secret correspondence between his wife and Yon Brunneck, in the hands of his counsel, Messrs. Bruñe and Tagart. This correspondence was submitted hy them to Mr. Wallis, and thereupon the demand for the restitution of the conjugal rights of the respondent was abandoned, and negotiations ensued which resulted in the execution of the deed of separation. By this deed it was agreed that the parties should live separate; that the complainant should have the custody of his son; that the eldest daughter should he sent at once to a boarding school to he selected by the mother; that the youngest daughter should remain with her mother, until she was seven years of age, and then to he sent to a hoarding school, likewise to he selected hy the mother; and that the complainant should pay to his — 560 — wife two thousand dollars annually for her support and maintenance, Mr. Jenkins agreeing to protect the complainant from all debts contracted by his daughter. With the exception of a visit by the respondent to the house of her husband, for the purpose of inducing him to restore her again to the relations of a wife, the separation effected by this deed continued without interruption, until the youngest daughter reached the age of seven years. A demand was then made by Mr. Kremelberg upon Mr. Jenkins, who was also a party to the deed of separation, that the little girl should be sent to school in accordance with the agreement. To this Mr. Jenkins replied by saying, that he had requested Mrs. Kremelberg to send the child to school, but that if she continued to refuse, he had no means of enforcing the obligation. He further says in the letter. “I am advised by my counsel that I have no right to the custody of the child or to demand it of the mother under the agreement of separation. Mr. Kremelberg clearly has that right, and the only right of Mrs. Kremelberg is to say to what institution the child shall be sent when in' his custody.” Thereupon the counsel for complainant applied directly to Mrs. Kremelberg to carry out in this respect the provision of the articles of separation. To this demand a letter was received from Mr. Carter, who in the meantime had been employed by the respondent as counsel, saying that the child had been under the treatment of a physician, but that Mrs. Kremelberg would place her at school immediately after the Easter holidays. In concluding the letter, Mr. Carter further says that Mrs. Kremelberg considers ^ according to the fair interpretation of said agreement of separation, she is entitled to the society and care of her two daughters during their vacations, and such times as they are not a-t school.” It can hardly be necessary to say that this construction of the articles of separation was a surprise to the complain — 561 — ant. As understood by him, and by Mr. Jenkins, the father of the respondent, who was also a party to the deed, and by her counsel Mr. Wallis, hy whom the deed was prepared, Mr. Kremelberg was entitled to the custody of the daughters, and the only right of the wife under the deed was to select the school to which they should be sent. It must be borne in mind, that we are now considering the motives by which the complainant was governed in his application for a divorce, and his understanding of the deed is of more importance than the strict legal construction of the. paper itself, for the reason that it derives its chief importance in this connection from the light it is ■supposed to cast upon the feelings and intentions of the parties, rather than the rights derived under it. The complainant was thus confronted hy the claim of his wife under the deed to the exercise of a larger authority and control over the daughters than she “ could have asserted without the contract, for if she was entitled to their custody when not at school, and she proposed to exercise this right living apart from her husband, it was equivalent to the exclusive custody of the daughters while not at school.” ■ If such was the legal effect of the deed, the complainant saw at once how utterly it had failed to accomplish what he intended, and that instead of narrowing the control of the mother over the daughters, it had restricted the exercise of the rights and authority over them to which he was entitled as a father. Now the obvious motives by which he was governed in all he did, was to prevent the shame and disgrace to his children and himself, that would result from the exposure of his wife’s infidelity, and to preserve to himself the care and custody of his children so far as this could he done consistently with their ages and condition. What then was he to do ? Either to submit to the construction thus placed upon the deed and surrender them — 562 — to the custody of his wife, or to take some steps, hy which his rights as a father might in this respect he asserted. The object of the deed as it recites was “to avoid painful litigation, and for the. happiness and interest of their children and of all concerned.” In view, however, of the construction thus placed upon it by the wife, the deed had failed to answer the purposes for which it was intended, the “ painful litigation ” was no longer to be avoided, for any proceeding instituted by him in regard to the custody of his daughters would necessarily involve the causes and circumstances under which the deed was executed, and the exposure of his wife’s adultery, “ which for the happiness and interest of his children and of all concerned ” he had been so anxious to prevent. An application for a divorce then based upon the guilt of his wife, and the rights resulting to him therefrom, became a natural and necessary proceeding. This brief review of the testimony fully explains the objects and purposes of the Carrollton arrangement—of the deed of separation—the reasons why the complainant did not file a bill for divorce, upon the discovery of his wife’s guilt, and the causes which finally made such a bill a necessary and proper proceeding. Instead of bad faith, .it shows that throughout the trying and painful situation in which he was placed, he exhibited in all he said and -did, a discretion, forbearance and unselfish consideration for the rights and. feelings of others, not often to be found in cases of this kind. Instead of forgiving, or condoning his wife’s infidelity, it shows that from the time he first discovered it, all conjugal relations between them ceased, and however anxious to avoid its publicity, against her entreaties and the entreaties of others, he refused to recognize her again as his wife. Under such circumstances, we are of opinion that neither the delay in making the present application, nor the execution of the deed of separation, nor the circumstances under which it — 563 — was made, whether considered separately or together, constitute any bar to the divorce now prayed. We come now to the question, and the only question in regard to which we have had any difficulty, and that is, what is the legal effect and operation of the divorce upon the deed of separation ? It is hardly necessary to say, that both Courts of law and equity have uniformly refused to recognize the validity of voluntary deeds of separation, so far as they undertake to release the parties from the duties and obligations resulting from the marriage contract. This the parties have no power to do. It can only be done in the mode and in the manner prescribed by law, and for causes recognized by law. Any private understanding or agreeement, says Sir John Eicholl, between husband and wife to live separate, is not recognized by law. Smith vs. Smith, 4 Hagg. Ecc. Rep., 514, 609. But although the deed may be void in this respect, it is well settled that a covenant in such deeds for the support of the wife, if made with trustees in her behalf, and in consideration of indemnity against future debts contracted by her, will be enforced. Elworthy vs. Bird, 2 Sim. & St., 372; Seeling vs. Crawley, 2 Vern., 386; Stevens vs. Olive, 2 B. C. C., 90; Seagrave vs. Seagrave, 13 Ves., 439. The question then in this case is, what is the effect of a divorce for the wife’s adultery, which was known to the husband at the time of the execution of the deed upon such a covenant ? It cannot be unlawful for a husband to provide by deed for the support of an erring wife, and if he should subsequently obtain a divorce for adultery, of which he was aware at the time he made the covenant, and the wife has done nothing to forfeit her rights under the covenant, wé see no good reason why the divorce should discharge the husband from the obligation he has thus voluntarily assumed. — 564 — Now in this case the complainant with full knowledge of his wife’s adultery, voluntarily covenanted with her father, to pay to her two thousand dollars annually during his life. It was undoubtedly a very liberal provision, and more than she had any right to expect. But it was an agreement voluntarily and deliberately made by the complainant. There is no proof, nor is there any intimation that the wife has been guilty of a repetition of the offence which has been the source of all this- trouble. And although the deed of separation does not operate as a bar to the application for divorce, we see no inconsistency in granting a divorce, and at the same time refuse to release the husband from a covenant providing for the support of his wife. The deed does not provide for the payment of the annuity so long as the respondent should remain as his wife, nor that it is to he discharged upon a divorce of the parties. The fact is, at the time the covenant was made, the parties only contemplated living apart, and did not therefore make any provision upon the contingency of a divorce. The case of Charlesworth and another vs. Holt, 29 Law Reporter, (N. S.) (Law Times Reports,) 641, goes much further than this. There the deed of separation after reciting that unhappy differences had arisen between the parties, in consequence whereof, they had agreed to live separate, further provided, that the husband should pay a certain annuity to his wife during their joint lives. Upon a suit brought upon this deed, the husband pleaded, that after its execution, the plaintiff, his wife, had committed adultery with one Samuel Oxley, and that in consequence thereof, he had obtained a divorce dissolving absolutely the marriage. This plea was held, on demurrer, by Kelly, O. B., Bramwell and Pigott, B., to he a had plea. — 565 — Kelly, C. B., said : “ I am of opinion that the judgment of the Court in this case should be given to the plaintiff. It appears to me that all the authorities are one way.” And in reply to the argument of Mr. Holker, Q. C., that it would be inexpedient, unreasonable and unjust, that a woman, who by reason of her own wilful and unjustifiable act of adultery has been divorced, should nevertheless continue to receive an annuity from, and to be supported by, the person, who had previously to the divorce, stood towards her in the relation of husband, the Judge said: “That may be so, as a matter of reasoning, but the answer to it as an argument for our doing what we are here called upon to do, is shortly and simply this, that the Court has no power to introduce any such condition into this deed, however proper and reasonable in a moral and social point of view it might be to do so.” Pigott, B. “The contingency of adultery being committed by either of the parties, was evidently not contemplated by any one when the deed was executed, and therefore the Court cannot introduce into the deed a condition not already there.” We have quoted somewhat at length from this case, to show that it goes much further than is necessary in the case before us. Without being understood as adopting all that was said by the Judges, we have referred to it for the purpose of showing that so late as 1814, it was held in England, that a divorce for the wife's adultery did not discharge the husband from liability, on a covenant in a deed of separation, providing for the payment of an annuity to his wife. In regard to the care and custody of the children, no good reason has been shown why the Court should interfere with the natural rights of the father in this respect. It follows from what we have said, that so much of the decree below as dissolves the marriage of the complainant — 566 — and respondent, and grants a divorce a vinculo matrimonii to the complainant, and awards the care and custody of the children to the complainant, will he affirmed; hut that so much of the decree as sets aside the deed of separation in respect to the payment of the sum therein provided to the respondent, will he reversed. (Decided 17th July, 1879.) Decree affirmed in part, and reversed in part, and cause remanded.