
    FREDA M. APPELTOFFT vs. HOWARD E. APPELTOFFT.
    
      Divorce — Adultery—Condonation—Recrimination as Bar.
    
    Tbe uncondoned adultery of the wife, which occurred before tbe separation of tbe parties, but did not come to tbe husband’s knowledge prior to that event, precludes a decree for a partial divorce, on tbe wife’s application, for excessively vicious conduct. p. 605
    Tbe husband’s cross-suit for an absolute, divorce is not barred by conduct on bis part which would have entitled tbe wife to a decree a mensa et thoro. / c ' - ’ , " p. 605
    In a suit for divorce on account of tbe wife’s adultery, held that tbe evidence' did not show that tbe husband acquiesced in or permitted tbe adultery, so as to support tbe defense of connivance. . ; p. 606
    
      Decided February 26th, 1925.
    
    Appeal from tbe Circuit Oourt of Baltimore City ('Stein, L).
    Bill by Freda M. Appieltofft against Howard E. Appeltoffit. From a decree in favor of -defendant on .a ero»bill filed-'by bim, plaintiff appeals.
    Affirmed.
    Tbe ciarase was argued before Bond, O. J., TJrner, Adkins, Digges, Parke, and Walsh, JL
    
      
      William D. Macmillan, with whom, were Samanes, Bowen •& Semanas on the brief, for the appellant.
    
      Jamas Fluegel, for the appellee.
   Urner., J.,

'delivered, the opinion of the Court.

A hill for .a divorce ai mensa et tboro', on the ground of ' excessively vicious conduct, was filed by the appellant against her husband', the appellee, who filed an ¡answer denying the alleged misconduct and also a cross-bill charging the appellant with adultery .and praying for a divorce a vinculo matrimonii: The ease was 'heard by the lower court on the oral testimony ¡of the parties and their witnesses, and the trial resulted' in ¡a; decree dismissing the bill of the wife and granting an absolute divorce for the cause alleged in the ■cross-bill of the husband. The answer of the wife to the cross-bill neither admitted nor denied the adultery of which she was accused, but the defense sought to be interposed in the testimlomy and argument was that the wife is innocent of the offense charged, and' that even if she were guilty, her husband’s abusive and violent treatment of her, and certain ■conduct on his paid which is said to have encouraged a breach of her marriage vows, constitute a bar to his crossHSuit for a divorce on the ground of her infidelity.

Upon the proof in the record we have no alternative but to •agree with 'the conclusion of the court below that the charge •of adultery has been sustained. The .appellant, while denying the adultery, admitted! her acceptance of affectionate' attentions from- the man suspected! of being her’ paramour, and he testified specifically to their illicit relations. On one •occasion they were discovered' -and interrupted by a witness while they were in the very act of adultery, 'according- to his testimony. The ■existence of the compromising situation described by that witness was acknowledged by the appellant, but she asserted that the act was- being imsuccessfully attempted! .against her will. In view of the proved and admitted! circumstances, her denial is not convincing. The testimony in the case will not be here reviewed in detail. It leave® no room, for reasonable doubt as to- the appellant’s marital misconduct.

Tbe evidence also p-rove® that the -ap-pellee’s treatment of his wife was repeatedly brutal 'and insulting. It would have been a cl-early sufficient ground for a -divorce a mensa et thoro under the Maryland law if the wife’s own conduct had been free of the fault -alleged and proved. liter uncondoned adultery, which occurred before the separation, hut did not come to- the husband’s knowledge prior to that event, precludes a ■decree for a partial divorce on -her application. Martin v. Martin, 141 Md. 182.

The question -as to whether the husband’s cross-suit for an absolute divorce is barred by conduct o-n his part which would have entitled the wife to a decree a mensa et thoro has been determined in the recent unreportad case of Pryor v. Pryor. (See 146 Md. 683). In that case the opinion of the Count, prepared by Judge Adkins, contained the following, statement-: “Py the great preponderance of authorities in this -country, where the statutes -authorize -an absolute divorce or divorce a mensa et thoro, it is fully recognized that in a suit by one spouse for a cause -entitling him or her to an absolute 'divorce, the other spouse cannot plead as -a bar in recrimination a cause entitling him or her to a limited divorce. 9 R. C. L., page 388, see. 181; 39 L. R. A. (N. S.), page 1135, note; Nelson on Divorce and Separation, vol. 1, sec. 434. There is no express decision on this point in Maryland, but tbe principle seems to be tacitly recognized in the following cases: Fisher v. Fisher, 93 Md. at p. 300; Rasch v. Rasch, 105 Md. at page 507; Green v. Green, 125 Md. at. p. 143; Geisselman v. Geisselman, 134 Md. at p. 462. At any rate there i's nothing; in these -cases which indicates a contrary view.” The opinion was expressed- by the Court in Foxwell v. Foxwell, 118 Md. 471, that -a -decree of partial divorce 'at the suit of a wife because of -abandonment by her husband would uot he a bar to a subsequent suit by -him for an absolute divorce on the ground of the wife’s adultery which he had not condoned.

In accordance with the decisions we have cited, the contention in thisi case that the 'appellee’s mistreatment of the ■appellant prevents a decree of .divorce a vinculo matrimonii on the ground of her adultery must be overruled.

The evidence does not give adequate support to the theory of connivance urged in the argument. It was testified by the wife that she once told her husband it was not proper for him to leave her alone -in their apartments, above his -store, in the company of the visitor who- is said to have become her paramour, ,and that in reply her husband made a remark indicating indifference -as to- what might occur if she was “not woman enough” to- guard herself -against the risk o-f improper -advances-. There was a positive- denial by the husband that he made such] a statement. It wasi mentioned by the appellant-as part of a conversation with her husband which occurred, -aa she testified, more than three years before th-edr separation. 'Tbe visitor was ;a young man with whom they ¡bad become acquainted a® summer boarders at hi® mother’s home in the country. He was a frequent guest -at their home -in the city during the winter. The charge of connivance is refuted by the -appellant’s -own testimony as to her husband’® .resentful violence when he suspected that she and the young man referred to- had ben engaged in flirtation or more serious impropriety. Upton her assurance that she had committed no wrong her husband authorized her to- offer the young man his apologies for the suspicion and resentment he -had' manifested. The proof does not satisfy us that the appellee acquiesced in or permitted the -adultery charged against the appellant, and the defense of connivance is therefore not available. Barclay v. Barclay, 98 Md. 366; Kohlhoss v. Mobley, 102 Md. 199; Murrell v. Culver, 141 Md. 349.

Decree affirmed, the costs to- be paid by the appellee.  