Blades v. Szatai

Digges, J., delivered the opinion of the Court. In a decree of absolute divorce, passed on March 29th, 1923, by the Circuit Court of Baltimore City, in the suit of Andrew Szatai against Anna Szatai, there was a provision that the wife should have the custody of the only child of the parties, a boy then fifteen years of age, and that the husband should pay to the wife three dollars per week for the support and maintenance of their son until he attains the age of twenty-one years, unless he becomes in the meantime self-supporting. The specified payments were made until September 19th, 1923, when they were suspended, with the verbal assent of the court, because Mrs. Szatai failed to report as to her son’s earnings at that time, in response to an inquiry addressed to her in Hew York, where they were then living, by the probation officer in Baltimore, by whom the father’s weekly payments had been collected and remitted. On June 25th, 1924, Mr. Szatai died, leav ⁶⁴⁶ ing a will which' disposed of a solvent estate in excess of $4,000, bnt made no provision for his son.

The executor of the will filed a petition in the Circuit Court, referring to the terms of the divorce decree in regard to the payments directed to be made for the support of the testator’s son, and alleging that his mother had preferred a claim against her former husband’s estate for the weekly payments in arrears and for those which might accrue to the date of the son’s majority. It was alleged to be the information and belief of the executor that the son had been self-supporting since September 19th, 1923, and it was further averred that, upon the death of his father, the liability imposed upon him by the decree for the son’s support terminated. In her answer to the petition, Mrs. Szatai denied that her son was self-sustaining, and relied upon the provisions for his benefit in the divorce decree as being still effective. The only testimony offered at the hearing on the petition was that of the probation officer, who described the circumstances under which the weekly payments were suspended, and whq produced a letter from Mrs. Szatai, dated October 13th, 1923, stating that her son was employed as a “printer boy” at a “very small salary of $5 a week which just pays his car fare and lunch.” Upon the evidence presented, the court below, on February 26th, 1926, ordered that the executor pay to Mrs. Szatai the sum of $318, being the arrearage to that date in the prescribed payments, and that the original order therefor should be a lien upon the assets of Andrew Szatai, in the hand,s of the executor of his will, until the son of the testator becomes twenty-one years of age; buf it was provided that before the executor should be required to make any further payments under the decree, a petition should be filed by Mrs. Szatai, or her son, and evidence produced duly proving that the payments claimed under the decree are actually necessary for the son’s support.

From that order the executor has appealed. - It is provided by section 39 of article 16 of the Code that the court shall “have power in all cases in which the care ⁶⁴⁷ and custody of the children of parties forms part of the relief prayed, whether a divorce is decreed or denied, to order and direct who shall have the guardianship and custody of the children and be charged with their support any time thereafter annul, The contention of the appellee is that that part of the decree of the chancellor, under date of March 29th, 1923, in the divorce proceedings, making provision for the custody and support of the child, created an obligation upon the father so long as he lived, and upon his death, continued as an obligation for which his estate is responsible. This contention is disputed, and the effect claimed by the appellee is denied by the appellant. It is, however, conceded by the appellant that, if the child was not self-supporting from and after September 19th, 1923, up to the death of the father, which occurred June 25th, 1924, the father’s estate is liable in a sum equal to three dollars per week between said dates. Therefore the single question for determination is whether or not the decree of March 29th, 1923, creates such a charge or liability against the father as will be extinguished by his death or will continue against his estate until such time as the child reaches the age of twenty-one years or becomes self-supporting. relation to the children.” The father was under the common law obligation to support his child during its minority, and this obligation continued without regard to a divorce decree, unless in that decree the court should order that it be supported by some one other than the father.

The fact that the decree ordered the father to pay three dollars per week to the mother for the support of the child, in no way affected his common law obligation to support it, but only prescribed the amount to be paid for its support, and through whom the child was entitled to receive it. If there had been no divorce, the father would have been compelled under the law to support his child so long as he (the father) lived, or until the child reached its majority; but at the death of the father his ⁶⁴⁸ obligation to support tbe child ceased, no matter what its age might then be, for the reason that under the law as it exists in this state the father had an absolute right to make such testamentary disposition of his estate as would result in the child receiving nothing therefrom. If at the time of making his will the father had the requisite testamentary capacity and was not subjected to what the law denominates “undue influence,” and the will was executed in compliance with the legal requirements as to witnesses, etc., it can not be doubted that he could legally and effectually disinherit his child. In such event the only redress for the child would be to attack the validity of the will upon some one or more grounds which the law of this state recognizes asi being sufficient to invalidate and strike down a testamentary instrument.

To give the decree the force contended for by the appellee would, in effect, be destroying the right of testamentary disposition on the part of the father. It will be remembered that in the divorce case the father was not at fault, the decree being obtained by him against his wife; and it is difficult to see why, under these conditions, when the divorce was decreed in favor of the husband and against the wife, and when he was entirely free of any neglect of marital or perental duty or obligation, he should occupy a different and less favored position than he would if there had been no decree of divorce. Under the settled law in this state, courts of equity have full power to award alimony in cases of divorce a vinculo matrimonii or a mensa et thoro, and also upon a petition for alimony without divorce, where in the last mentioned class of cases the evidence would entitle the party to a divorce either absolute or partial; and it is equally well settled that a court awarding alimony has full power and authority to vary or modify its previous decree. Emerson v. Emerson, 120 Md. 584 ; Polley v. Polley, 128 Md. 60 ; Outlaw v. Outlaw, 118 Md. 498 ; Clarke v. Clarke, 149 Md. 590 .

While the language of section 39, above quoted, is full and comprehensive in respect to the ⁶⁴⁹ authority of courts of equity dealing with the custody and support of infants in divorce cases, or, as was said by Judge Boyd in Hood v. Hood, 138 Md. 366 , in speaking of this language, “Our statute, section 38 (now section 39), article 16, would seem to be broad enough to cover all questions concerning the care and custody of the children as well as their support and maintenance,” it will be seen from the authorities quoted above that even under this broad language courts of equity have no greater or more comprehensive powers in dealing with the custody and mainte* nance of infants than they have in awarding alimony and varying or modifying decrees in respect thereto. In the early case of Wallingsford v. Wallingsford, 6 H. & J. 398 , this Court said: “Alimony is a maintenance afforded to the wife where the husband refuses to give it, or where from his improper conduct he compels herí to separate from him. It is not a portion of his real estate, to be assigned to her in fee simple, subject to her control, or to be sold at her pleasure, but a provision for her support, to continue during their joint lives or so long as they live separate. Upon the death of either, or upon their mutual consent to live together, it ceases.” In the case of Emerson v. Emerson, 120 Md. at page 590 , the Court, speaking through Judge Constable, after quoting the above language, said: “This is the definition of alimony which has been recognized and followed through all of the Maryland decisions down to the present.” To the same effect see McCaddin v. McCaddin, 116 Md. 573 .

The above cases, and many others which might be cited, all hold that alimony awarded to the wife ceases from and after the death of the husband. In other words, it only continues during the joint lives of the husband and wife, and upon the death of either it is terminated. The language dealing with the court’s power over the custody and support of minors is embraced in section 39, which has. to do with divorce, and also authorizes the court to award alimony to the wife; and it would seem that the language used in respect to ⁶⁵⁰ children, was not intended and should not he construed to create any greater responsibility or encumbrance upon the husband or his estate than would be the effect of a decree awarding alimony. Decrees, both for alimony and for -the support and maintenance of children in divorce proceedings, grow out of the natural and common law obligation of the husband and father to support his wife and children.

If there is any different obligation on the part of the husband to support the wife or the children, it would appear from the present state of the law in Maryland that it guards and protects the right of the wife to a greater degree than those of the children, because the husband is denied the testamentary right to so dispose of his property as to prevent his wife from sharing therein, while, as stated above, he is at perfect liberty to disinherit by will any one or all of his children. Therefore,