Opinion
[No. 31, January Term, 1940.]
Decided April 3rd, 1940.
Divorce — Adultery.
When the wife's bill alleges the husband's adultery with various women, whose names are unknown to her, during a certain period, while the testimony shows merely misconduct with a certain person employed by him, during a later period, there is a variance which would be fatal on objection reasonably made.
The courts should not accept as proof of adultery anything less than evidence so clear, satisfactory, and convincing as to convince a reasonable and unprejudiced man, evidence merely raising a suspicion of unchastity being insufficient to warrant a decree.
Frequent opportunities for adultery, and even acts which are highly indiscreet, are not sufficient, in the absence of an adulterous disposition, to establish guilt, unless the parties were together under suspicious circumstances which cannot readily be explained except on the assumption of the corrupt design.
To warrant a divorce on the ground of adultery, the circumstances viewed together must be incompatible with innocence, and if they are reasonably capable of two interpretations, that interpretation which recognizes the defendant's innocence must be adopted.
Testimony as to acts of adultery by defendant after institution of a suit for divorce is inadmissible, and to make such evidence admissible the suit for divorce should be dismissed with the court's consent, and a new suit instituted.
When subsequent acts of adultery are alleged to have been committed with one named in the original bill, evidence in regard thereto is admissible, but merely to serve as corroboration or to reflect on the fault of the parties at the time of their separation.
A wife is not entitled to a divorce by reason of the husband's commission of a matrimonial offense constituting a cause for divorce, if she herself has deserted him with the deliberate purpose of terminating the marital relationship.
Decided April 3rd, 1940.
Appeal from the Circuit Court for Washington County, In Equity (WAGAMAN, J.).
Bill by Mary Ella Renner against Charles C. Renner. From a decree for plaintiff, defendant appeals. Reversed.
The cause was argued before BOND, C.J., OFFUTT, PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.
Omer T. Kaylor, for the appellant.
Martin V.B. Bostetter, submitting on brief, for the appellee.
Unreported cases.