Bender v. Bender

Digges, J., delivered the opinion of the Court. This is an appeal by Penelope Bender from portions of a decree which granted a divorce a vinculo matrimonii to her husband, Morton Bender. The decree entered by the Circuit Court for Montgomery County in addition denied Mrs. Bender’s prayer for a divorce a mensa et thoro, declined to grant her alimony, declared her husband the sole owner of all the furniture and antiques located at the marital home, and made certain other adjudications not here relevant regarding custody and support of the parties’ children, ownership of certain items of personal property, attorneys’ fees, and the like. Mrs. Bender noted a timely appeal to the Court of Special Appeals and prior to its consideration filed a petition for a writ of certiorari with this Court; we issued the writ. 1 The petitioner does not ask this Court to reverse the decree insofar as it (i) granted her husband a divorce a vinculo as a consequence of her adultery, and (ii) denied Mrs. Bender relief on her cross-bill based on allegations of her husband’s cruelty and constructive desertion.

She does, however, strenuously attack the “fault” approach to alimony in this State, contending that her adulterous conduct after twenty years of ⁵²⁷ marriage should not preclude an award of alimony to her. This is particularly so, the wife asserts, since she is in need of reasonable support — never having worked outside the home and hence having no ability to earn an adequate living — and since her husband, with an amassed fortune of some twenty-four million dollars, could easily afford to provide it. Mrs. Bender asks as well that we depart from the established principle applied by the courts of this State in determining the ownership of personal property in a divorce action — that chattels acquired by purchase belong to the one who paid for them, absent proof that the owner divested himself of his property in them. We agree with Mrs. Bender that, contrary to the state of the law until today, a wife presumptively owns jointly with her husband furnishings purchased by either husband or wife for the use of the family at the marital home, without regard to whose money was expended in making the purchase; however, we are without authority to change the statutory provisions controlling the award of alimony, which, as interpreted in an unbroken line of decisions by this Court, permit such an award only when the spouse requesting it can establish that he or she has grounds sufficient to support a decree of divorce, either a mensa or a vinculo.

We will thus remand this case for a determination of the petitioner’s interest in the marital furnishings in accordance with the principles shortly to be related, while affirming the decree in all other respects. We need only add a few facts to those already alluded to in order to convey the flavor of the proceedings below before turning to an explanation of our determinations here. The parties were married in 1956, when Mrs. Bender was seventeen, and have five children, two of whom are still minors. The marriage was subject to “some friction and problems” prior to the events in 1976 which provided the husband a basis for filing this divorce suit.

The parties ceased having sexual relations as early as September of 1975, and had twice discussed the possibility of divorce, once in 1969, at the wife’s suggestion, and again in 1975, this time at her husband’s initiation. Nothing came of these discussions, however, and in June of 1976 the husband obtained evidence, ⁵²⁸ through private investigators he had employed, of his wife’s adultery. In July he instituted this suit and in August physically removed his wife from their marital abode. The fact of Mrs. Bender’s adultery was never controverted, nor did the petitioner contradict Mr. Bender’s testimony that she had admitted to him in July, after being confronted with his knowledge of her infidelity, that she had been having an extramarital affair for two or three years.

Mrs. Bender appears to have sought to justify her adulterous acts by asserting that her husband had become impotent; she also sought to prove that he had for many years subjected her to abusive treatment and foul language in public. As we have noted, however, the petitioner does not challenge the chancellor’s conclusion that the abusive language and physical altercations shown were not of sufficient magnitude to justify granting her an a mensa divorce based on either cruelty or constructive desertion. In seeking an award of alimony, Mrs. Bender’s primary attack is upon the rule we enunciated in Flanagan v. Flanagan, 270 Md. 335, 341 , 311 A. 2d 407, 411 (1973) — that in a divorce action based on a no-fault ground, an award of alimony to a party whose adultery or abandonment of the other constituted the sole cause for the demise of the marriage is normally an abuse of discretion. This, the petitioner contends, is a “socially undesirable” rule, since the destruction of the Benders’ marriage, as with most others, was not, “legal fictions notwithstanding,” due to specific faults on the part of either party, and since it inequitably permits one spouse to begin his separate life at the peak of his earning capacity while the other begins without a career and with no support.

We preface our response to these contentions with the observation that Mrs. Bender’s attack on Flanagan is misplaced, since that decision dealt with the circumstances under which alimony could be awarded when, on no-fault grounds, either husband or wife would be entitled to obtain a divorce. Thus, even were Mrs. Bender to convince us that the Flanagan rule is not as “sensitive to societal needs and the exigencies of the case” as might be desired, it would be of no moment to her, since she fails to leap a higher hurdle: ⁵²⁹ Flanagan in no way mitigated — and in fact repeated — the rule that “a spouse’s right to obtain a divorce, either a vinculo or a mensa, is a requirement for the obtention of alimony — ergo, no right to divorce, no right to alimony.” Id. at 340 [410]; accord, Stein v. Stein, 251 Md. 300, 302 , 247 A. 2d 266, 267 (1968) (citing cases); Wood v. Wood, 227 Md. 211, 218 , 176 A. 2d 229, 233 (1961). Since the petitioner could not have been granted a divorce — and indeed does not here contend otherwise — either on culpatory or nonculpatory grounds, she simply may not have alimony. Construing the petitioner’s argument as a request that we abrogate the rule that a spouse who is not entitled to a divorce is not entitled to alimony, we conclude we are powerless to do so.

Mrs. Bender, in support of her plea for alimony, refers to the judicially-determined cause of the demise of her marriage — her adultery — as a “legal fiction,” and espouses the view that marriages break down not because of a particular fault on the part of one party, but because of a “myriad of subtle psychological pressures and anxieties created by both parties.” While this point of view cannot fail to evoke sympathy in some quarters, particularly in a case such as is revealed by the record before us, we cannot escape the conclusion that the petitioner’s views are being advocated in the wrong forum. Divorce, unknown at common law, is entirely a creature of statute, Altman v. Altman, 282 Md. 483, 490 , 386 A. 2d 766, 770 (1978); Emerson v. Emerson, 120 Md. 584, 589 , 87 A. 1033, 1035 (1913); similarly, the authority for allowing alimony in connection with a divorce stems solely from legislative enactment, Flanagan v. Flanagan, supra at 339 [410]; Willoughby v. Willoughby, 256 Md. 590, 592 , 261 A. 2d 452, 453 (1970); see Md. Code (1957, 1973 Repl. Vol., 1977 Cum. Supp.), Art. 16, § 3, though the standards governing its award, i.e., the factors to be taken into consideration in arriving at a proper amount, are judicially created.

Flanagan v. Flanagan, supra; Willoughby v. Willoughby, supra. An examination of the relevant statutes is therefore in order. While Article 16, section 3 simply provides that alimony may be awarded in cases where a divorce is decreed, and does not purport to define “alimony,” we are not now, and never ⁵³⁰ have been, at liberty to ignore the meaning of the term as it was commonly understood when the legislature in 1841 first provided for such an award as an incident to a divorce. 2 That meaning is easily deducible, and we begin by pointing out that while the power of an equity court to grant alimony independent of a divorce decree has at times been said to have been originally inherent in equity jurisdiction, Outlaw v. Outlaw, 118 Md. 498, 501 , 84 A. 383, 384 (1912) (citing cases), in any event that power was put beyond doubt by Chapter 12 of the Laws of 1777. Chapter 12 provided that the chancellor should “hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there.” This provision is currently codified, virtually unchanged, as section 3-603 (a) of the Courts Article, Md. Code (1974, 1977 Cum.

Supp.), and was long ago interpreted as confining the court, in granting such alimony, to grounds which would be “a sufficient foundation in England for granting a divorce a mensa et thoro, together with its incident alimony.” Helms v. Franciscus, 2 Bland 544 , 565-74 (Md. Ch. 1830). Long before the legislature provided for the award of alimony in connection with a divorce, the courts had defined alimony as “a maintenance afforded to the wife, where the husband refuses to give it, or where ... his improper conduct compels her to separate from him.” Wallingsford v. Wallingsford, 6 H. & J. 485, 488 (1825). The Court in Wallingsford also said that before a decree could be passed for alimony, “[i]t must be proved that the separation was not by the voluntary act of the wife, but from the misconduct of the husband____” Id. at 489 . Since the meaning of the word “alimony” could hardly have been clearer to the legislature which chose to use that term when it gave the courts jurisdiction to award alimony in connection with a divorce, and since no subsequent legislature has seen fit to elaborate a different meaning, this Court may not do so, despite the fact that the language of Article 16, section 3 ⁵³¹ would not, interpreted in a vacuum, preclude us from making an award to a spouse not entitled to a divorce. 3 See H. Clark, Law of Domestic Relations § 14.5, at 445 & n. 44 (1968) (erroneously indicating that Article 16, section 3 authorizes alimony without reference to the wife’s fault); Annot., 34 A.L.R.2d 313 , 330-31 & n. 6 (1954) (same).

As we have observed before, in recognizing divorce a vinculo in 1841 and providing for alimony in connection with it, the legislature “intended to provide for alimony of the same character and limitations as the alimony the Courts had for so long dealt with” in the context of a mensa divorce. Altman v. Altman, supra at 491-92 [771] (quoting Emerson v. Emerson, 120 Md. 584, 590-91 , 87 A. 1033, 1036 (1913)). 4 This is not the first time that this Court has indicated that, if there is to be a change, it is the legislature which must afford relief to citizens dissatisfied with the statutes governing divorce and alimony; in fact we have so observed in an instance quite similar to the case at bar. In Stein v. Stein, 251 Md. 300 , 247 A. 2d 266 (1968), the wife, whose husband had been granted a divorce on the ground of her desertion, argued that she “should be allowed alimony notwithstanding the fact that she was determined not to have grounds for divorce____” Id. at 301 [267]. To Mrs. Stein’s urging that the “absolute rule” should be relaxed, we observed that “[s]uch ⁵³² relaxation must come, if it is to come, from the General Assembly.” Id. at 302 [267]; see Courson v. Courson, 213 Md. 183, 189 , 129 A. 2d 917, 920 (1957) (“[i]f there is to be any change in policy in this State with reference to divorces, recrimination, 5 [and] alimony, ... it must emanate from the Legislature and not from the Courts”).

The petitioner has cited to us the law of seventeen states and the District of Columbia, asserting that those jurisdictions now permit an alimony award to a wife guilty of marital fault. Most of Mrs. Bender’s citations are to statutes, which unquestionably may make, consistent with constitutional requirements, whatever provision the legislature desires pertaining to alimony, and a number of other citations to case law deal with instances in which the ground of divorce, being nonculpatory, entitles either party to a decree, thus making those cases irrelevant here. Nevertheless, we are aware that there are indeed jurisdictions in which the courts have assumed the power to award alimony to a wife for whose misconduct her husband obtained a divorce, without reference to the statutory basis for alimony, see Annot., 34 A.L.R.2d 313 , § 2 (1954), as well as jurisdictions which interpret statutes much like this State’s to empower their courts to award alimony to an errant wife against whom a divorce is granted. See id. § 6.

In view of the principles discussed above, however — the nature of alimony at the time the Maryland General Assembly first allowed its award in connection with an a vinculo divorce, the fact that it is an exclusively statutory phenomenon, and our long-established construction of the statute as requiring any change in the nature of the right to alimony to be made by the legislature — we are not persuaded to retract from the ⁵³³ position we have long expressed. While there may well be cogent reasons for dispensing with notions of fault as a factor in the award of alimony, as with grounds for divorce, it is to the legislature that the petitioner must look if she wishes the law to be rid of the “legal fiction” that either party could be solely responsible for the decay of the marriage, and hence not