delivered the opinion of the Court. Smith, J., dissents. Dissenting opinion at page 655 infra.
The trial judge (MacDaniel, J.) signed a decree on October 29, 1969, in the Circuit Court for Baltimore County divorcing a mensa et thoro the appellee, Mae Elizabeth Coover, the plaintiff below (Mae), from Fred L. Coover, Jr., the appellant and defendant below (Fred), on the ground of Fred’s constructive desertion of Mae. The principal challenge to that decree is Fred’s contention that there was not sufficient evidence presented in the lower court to show that he was guilty of constructive desertion. Fred also contends that the trial court erred in admitting into evidence certain correspondence between the parties written after their separation. For the purposes of this opinion we shall assume, without deciding, that there was no error in admitting the correspondence into evidence, inasmuch as we are of the opinion that, including the correspondence as properly part of the record, there was not sufficient evidence under our prior decisions to justify a finding of constructive desertion on the part of Fred.
In stating and evaluating the facts, we shall bear in mind the provisions of Maryland Rule 886 a which provides that the “judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” Garner v. Garner, 257 Md. 723, 264 A. 2d 858 (1970).
The parties were married in Baltimore City on November 19, 1949. Two children were born of this marriage, i.e., Carol McNeal Coover, born May 27, 1955, and Fred L. Coover, Jr. (Chip), born January 19, 1958. Both parties had resided in Baltimore County since 1949 and had lived at their home, 1224 St. Andrews Way, until March 23,1969, when Mae left the home.
Mae testified that she and her husband, Fred had been “getting along very poorly” several weeks prior to March
Around 7:00 to 9 :00 P.M. on the Sunday evening of March 23, Mae took some mending and went down to the basement clubroom with a glass of Pepsi-Cola. She had consumed part of the glass of Pepsi-Cola and went to the powder room. While there, she saw Fred come down the stairs to the club basement in a “very sneaky way.” She assumed he was looking to see where she was. After she returned to her mending, she did not see Fred. She then picked up her glass with the unfinished Pepsi-Cola, took one sip and “nearly gagged.” She testified that she was terror stricken because the drink was bitter and burned. Mae then went upstairs where Fred was sitting in the kitchen and called for her eleven year old son, who, at that time, did not respond. She then went to her son’s “bedroom area” and requested her son to taste the Pepsi-Cola, stating “Chip, mother’s Pepsi tastes very peculiar, I am not sure what is wrong. I want you, for me, to taste this and then I am going to put my finger in your throat and make you regurgitate.” The son tasted the Pepsi-Cola and cried out “it is horrible, it is bitter.” It was not necessary to make him regurgitate. The son then checked the medicine cabinet in the bathroom and saw, as did Mae, “empty medicine vials, tranquilizers, sleeping pills, a series of doctor’s prescriptions that had been piling up over a period of years.” Mae testified that she then went
Near 9:00 P.M. Mae started to go get her daughter Carol from her Church meeting, but Fred insisted that he go and bring her home. He did this. Around this time Mae called her brother-in-law, Robert Grund, to come and get her and the children. He arrived some 20 minutes later with a policeman. In the meantime, Mae had packed some of her belongings and those of the children; and upon Fred’s return home with Carol, she took both children, left the home immediately and went to the residence of her brother-in-law.
On cross-examination, Mae testified that she had both a bachelor’s and master’s degree from Towson State College, has taught school for a number of years and was earning, at the time of the hearing, approximately $13,-000 for ten months of teaching. She further testified that in December 1968 she had told Fred that she had been seeing Edwin Logan, a professor at Towson State Teacher’s College since August 1968. She stated that she had known Mr. Logan since she was 17 years of age and had seen him as a friend. She had met Mr. Logan for lunch in her home with her children present and had seen him in the library on Tuesday evenings between August and December of 1968. She knew that Mr. Logan and his wife separated the last part of March 1969.
On March 16, 1969, Fred accused his wife of having received a marriage proposal from Mr. Logan, but this was denied by Mae. Mae told Fred, however, that she was considering leaving him at that time. She consulted Mr. Thomson, an attorney, on March 18.
Mae also, on cross-examination, amplified the circumstances surrounding the activities on March 22-23. She stated that she and Fred had been to a dinner party on Saturday evening. She denied that Fred upon arriving home had requested to have relations with her, but said
She then stated that while she was asleep, Fred awakened her by attempting to pull her pajamas off; but he did not strike her and he was not intoxicated. She testified that Fred did not ask her to have relations but the conversation was in the nature of an order to do so. She then called to her daughter, Carol, who came into the bedroom and was ordered by her father to leave. Carol refused to do this and Mae then went to Carol’s room for the rest of the night. Fred remained in the house during the night. Mae did not seek outside help or leave the home to go to a motel. She testified on re-cross-examination that she did not like her husband.
The son and daughter substantially corroborated their mother’s testimony in regard to the episode in which each participated.
The brother-in-law, Mr. Grand, testified that after Mae had telephoned him on March 23, he had gone to her home with a policeman and moved Mae and the children to his home. He stated that Mae was “very disturbed” but was not “rattled.” She was “as calm as she could be” because she had the children’s things packed up. He also stated that during a subsequent conversation, Fred had told him that he had thrown his wife’s medicines down the drain.
Mrs. Margaret Seitz, mother of Mae, testified for Mae in regard to two photographs that Fred had sent her in April 19S9. The photographs were of her deceased husband’s grave and had listed the names of Fred, Ms son, his daughter and the words “Dishonored daughter.” There was objection to the admission of these photographs into evidence on the ground that they were sent after the separation of the parties; but the trial court overruled the objection and admitted them into evidence. On cross-examination, Mrs. Seitz testified that she and Fred “have always been good friends” and that she had never “had any argument with him.”
Mrs. Evelyn B. Roberts, a friend of the Coover family,
The trial court, at the conclusion of the testimony offered on behalf of the plaintiff Mae, refused to grant Fred’s motion to dismiss the bill of complaint.
Thereafter, Fred called Mrs. Catherine C. Logan as a witness for him. Mrs. Logan testified that at least on one occasion — March 16, 1969 — she came upon her husband and Mae in Mae’s automobile at a shopping center parking lot. Mae ducked down so as not to be seen, but Mrs. Logan backed her car into the bumper of Mae’s automobile and then backed up and rammed Mae’s car again. At that time the Logans had been separated for some period of time.
Fred, testifying on his own behalf, stated he has an A.B. degree, with a major in economics, from Washington and Lee University. He is an accountant. He further testified that Mae had admitted to him in December 1968 that she had met Mr. Logan on a parking lot and stated that she had “misbehaved.” She had been with Mr. Logan “and it was with him she had misbehaved.” When she told him this, she had been in bed for most of four days and “broke down in abject tears.” Mae further admitted to him that she had been seeing Mr. Logan since August 1968. She was seeing him on Tuesday nights in the library. Mae also stated that she was making plans to leave him and on March 19, became upset with him because he would not agree with her on a general pattern for a proposed distribution of their real and personal property. Fred testified that Mae had told him that she had received an offer of marriage from Mr. Logan which she had neither accepted nor rejected.
Fred’s account of the evening of March 22 was that he and his wife had attended a dinner party at the home
In regard to the Pepsi-Cola incident, Fred testified that he saw Mae fill the Pepsi glass and go to the basement. Thirty or forty minutes later he went down the steps to the basement because there had been no activity there even though his son had been down to the basement twice when Fred had been seated in the kitchen. He saw that Mae was in the powder room and returned upstairs to the kitchen to read the paper. In a few minutes Mae came up the stairs holding a glass and accusing him of having poisoned her Pepsi-Cola. He denied this and she then said she would have her son taste it. She then returned to the kitchen, emptied the glass, rinsed it, and set it on the drain, again accusing Fred of trying to poison her. Fred then filled the same glass with Pepsi-Cola, tasted it, said it tasted all right to him and thereafter left to pick up Carol at the church meeting. On the way home, he told Carol what Mae had accused him of and indicated that he thought Mae needed psychiatric care.
The trial court admitted into evidence, over objection, certain correspondence written by Fred to Mae after March 23, 1969. The trial court was of the opinion that it was relevant to indicate the general character of the defendant, Fred. As we have indicated we shall assume,
Mae, recalled as a rebuttal witness, denied that she had told Fred that she had “misbehaved” with Dr. Logan. She testified that “He was a very unhappy man, I was an extremely unhappy woman, and we found solace in conversation. That was it. Because I am a very moral person, I felt guilty that. . .1 had even allowed myself to take solace in conversation with another man. That is my guilt to which I referred, only that.” She denied that she had ever committed adultery. She further testified: “I had already told Mr. Coover in December that I felt guilty having conferred with Mr. Logan, so that there was no possibility of his coming to my home to discuss it and he and his wife were having serious problems and there was no possibility of my going to his home. We agreed to meet in a public place at the Seminary Ridge development where we would be in front of everybody, hundreds of people passing by. There could be no question about behavior. After his wife rammed my car he did come and sit in the car for 10, 15 or 20 minutes to give me the particulars of my brother’s death.” Mae had testified earlier that she was seeking information from Dr. Logan who was in the Navy in regard to the details of her brother’s death while also serving in the Navy.
On cross-examination Mae reiterated that in talking to Dr. Logan she “found solace, but no impropriety.” She admitted that she told Fred she “felt guilty.” In regard to why she ducked down on the seat when Mrs. Logan appeared at the parking lot, Mae stated “I don’t know.”
The trial court denied Fred’s motion to dismiss the bill of complaint at the conclusion of the testimony. After argument, the lower court rendered an oral opinion in which he found, inter alia, that although Mae’s conduct with Dr. Logan had been “very indiscreet,” there was no proof of adultery on Mae’s part and the trial court was convinced that she had not committed adultery. The trial court found that the marriage had been a relatively good marriage up to 1964 and that up to March 22, 1969, the
In regard to the episodes of March 22 and 23, the trial court found that Fred did rip Mae’s pajamas and acted in a belligerent and aggressive manner on that occasion. Here, again, the lower court properly concluded that this conduct was insufficient to justify a divorce a mensa et thoro on the ground of constructive desertion.
In regard to the Pepsi-Cola incident, the lower court concluded that Fred “did in fact put something in this drink and that Mae was put in fear and had a right to leave him at that time.” The trial court stated the fact, that there might not be poison in the drink, was not the important fact, but that having put a foreign substance in the drink, with all of the other evidence in regard to Fred’s peculiar disposition, was sufficient to make this act one which would put Mae in fear of her life and which justified her leaving the marital abode. The lower court was also of the opinion that Fred’s “baseless” accusations of adultery were sufficient to justify Mae’s leaving the marital home.
The lower court, on October 29, 1969, passed a decree with the following provisions:
1. Mae be divorced a mensa et thoro from Fred.
2. Permanent care and custody of the son and daughter of the parties be given to Mae.
3. Fred should pay $10.00 a week for the support of each minor child (a total of $20.00 a week), payable through the Baltimore County Probation Department.
4. Rights of visitation of the minor children be given to Fred as set forth in Paragraph 4.
5. Mae is not entitled to receive alimony based on the respective circumstances of the parties at the present time, and the issue of alimony is reserved for future consideration by the court.
7. The costs be paid by Fred.
We have concluded that, under the decisions of this Court, the lower court erred in holding that Mae had established a case of constructive desertion. We shall, therefore, reverse the decree of October 29, 1969, in so far as it granted Mae a divorce a mensa et thoro from Fred in Paragraph 1 and reserved the question of alimony in Paragraph 5.
As we have indicated, we accept as an established fact that Fred placed a foreign substance in the Pepsi-Cola (although he denies this); but, in our opinion, this single act is not sufficient to indicate an intention to do serious bodily harm or to threaten serious danger in the future. Judge Sybert, for the Court, stated the Maryland law in this regard in Applegarth v. Applegarth, 239 Md. 92, 98, 210 A. 2d 362, 366 (1956) as follows:
“If the wife’s version of what occurred during the altercation between the parties around Christmas, 1961, be accepted, the single act of violence complained of by her does not measure up to what the law of this State requires as constituting a justification for the wife’s living apart from her husband. As was pointed out in Harrison v. Harrison, 223 Md. 422, 164 A. 2d 901 (1960), a constructive desertion case, a single act of violence, in order to constitute cruelty of treatment, ‘must indicate an intention to do serious bodily harm, or be of such a nature as to threaten serious danger in the future.’ (p. 426 of 223 Md.) Neither of those elements was present here.”
In Applegarth, the wife had testified that her husband had thrown her to the floor and kicked her. In trying to escape, she broke through a glass door with her hands, cutting them. In Harrison v. Harrison, 223 Md. 422, 164 A. 2d 901 (1960), cited in Applegarth with approval and
In neither Applegarth nor Harrison did we find the single act of violence sufficient to establish constructive desertion on the part of the husband or such cruelty of treatment as to justify a divorce a mensa et thoro.
In the present case, assuming as we do that Fred did place “a foreign substance” in Mae’s Pepsi-Cola, it is clear to us that the substance placed in the glass was not poison and that Mae knew, or should have known, that it was not poison. Although she stated that she was in great fear, her actions are clearly contrary to her statements.
In the first place, there was no evidence offered that there was any poisonous substance in the medicine cabinet or that Fred had purchased or otherwise acquired any poison. The bottles in the medicine cabinet were of old prescriptions, sleeping pills and the like. Secondly, the noxious substance was so obviously present in the drink that neither Mae nor her son swallowed — or were likely to swallow it. Thirdly, it is almost incredible that if Mae had really believed that the substance in the Pepsi-Cola was a lethal poison, she would have invited her son to taste it. Fourthly, if Mae had really believed the substance to be poison, the last thing she would have done would have been to put it down the kitchen drain and see to it, as she put it, that “there is no evidence.” Finally, even after this episode, she permitted her husband —the supposed poisoner — to go for her daughter at the church meeting even though she knew that Fred was highly displeased with his daughter and had lectured her for some two hours at the Sunday dinner. Then, too, these parties had been married some 19 years prior to the March 23 episode. Mae concedes that during the marriage, Fred had never struck or physically assaulted her.
Nor do the accusations by Fred of his wife’s alleged adultery, under the circumstances of this case, amount to conduct which would indicate a “pattern of persistent conduct which is detrimental to the safety or health of the complaining spouse, or so demeaning to his or her self-respect as to be intolerable.” Beavers v. Beavers, 255 Md. 450, 258 A. 2d 203 (1969). Here again, we accept the lower court’s finding that there was no proof of adultery. However, it cannot be said that Mae’s admitted statements to Fred in regard to seeing Dr. Logan, the “guilt” which she felt, her “abject tears” and staying in bed for the best part of four days, together with Mrs. Logan’s actions when Mae sought to conceal herself on the parking lot, could not lead Fred reasonably to assume that Mae’s interest in Dr. Logan was not platonic. His “charges” against Mae were not made publicly, but within the confines of the family. See Li v. Li, 249 Md. 593, 241 A. 2d 389 (1968). Cf. Liccini v. Liccini, 255 Md. 462, 258 A. 2d 198 (1969). In any event, the parties continued to live together after the Logan episode, Mae testifying that she had never refused marital relations with Fred prior to the refusal on March 22, 1969. We are of the opinion that the lower court was clearly in error in concluding that the accusations of adultery in the present case would justify the wife in leaving the marital abode.
In our opinion, under the circumstances of this case, it was not proper to grant the injunction against harassment in Paragraph 6 of the decree of October 29, 1969.
Decree of October 29, 1969 modified by deleting paragraphs 1, 5 and 6 of the decree and as modified, affirmed; the costs to be paid by the appellant.