Chappell v. Chappell

McSherry, C. J., delivered the opinion of the Court. This record brings up six appeals. Three previous appeals between the same parties were disposed of during the October term of 1895 ; but no final decree has yet been reached in the cause. The record now before us contains a mass of utterly useless matter, repeated over and over again.

The whole proceeding on the part of the appellant is so unusual, inartificial, tangled and confused as to lead to .the irresistible inference that his object is purely vexation and delay'—an effort to prevent, or to postpone as long as possible, a decision on the merits by the interposition of frivolous objections in every form that he can devise. He is conducting his own case ; and he has excepted, demurred and filed numerous motions covering the same ground ; and he has done all this, apparently, with a view to protract a litigation between him and his wife, that reflects the utmost discredit upon himself. If his dilatory, idle and unparallelled proceedings were to receive the sanction of any Court, that Court would be exposed to the severest criticism, for those proceedings are a reproach to the administration of justice. His numerous exceptions, demurrers and motions simply trifle with the patience and the toleration of the Court—they are without precedent in equity pleading and have no tendency whatever to aid in the ultimate determination of the issue really involved.

A mixture of incoherent arguments, irrelevant statements, citations of authorities and quotations from statutes, both Federal and State, they certainly present the most remarkable productions ever brought to the notice of this Court; and most probably no other tribunal has ever been called on to unravel or interpret their like before. As an end must be put to this utterly unjustifiable trifling with the machinery of justice, we proceed to dispose of these six appeals without further comment on the character of the procedure. A brief statement of pertinent facts now will avoid the necessity of repetition later on. On March 13th, 1895, the appellant filed a bill of com ⁵³⁴ plaint in the Circuit Court for Baltimore County against his wife, the appellee, wherein he prayed for a decree divorcing the parties a vinculo matrimonii and also for a decree of nullity of the marriage.

The charges of the bill need not be repeated. On the former appeals we took occasion to characterize them as “ vindictive and vituperative to a remarkable degree.” The bill prayed for an order of publication against the defendant, who was alleged to be a non-resident of the State of Maryland. On April the third the appellee appeared Voluntarily to the proceeding and filed a petition asking that an order be passed requiring the appellant, her husband, to pay her alimony pending the suit, and also a reasonable counsel fee. Upon this petition there was an order nisi passed directing the appellant to pay to the appellee the sum of one hundred dollars per month in advance as alimony during the continuance of the contest; five hundred dollars for the expenses of the suit; and one thousand dollars for counsel fees.

The petition was answered on April the sixteenth. Pending action on this petition and the answer thereto, Mrs. Chappell obtained, on May the eighth, 1895, leave to file a cross-bill, and on that day she filed her answer to the bill of complaint, and in the answer she incorporated the cross-bill, wherein she prayed for a divorce a mensa et thoro. On the 25th of April Mr. Chappell filed a motion asking leave to dismiss his bill of complaint, and this motion was set for hearing on May the eleventh. The motion was resisted on various grounds; and on June 15th leave was granted the plaintiff to dismiss his bill upon paying the costs and the further sum of two hundred and fifty dollars for counsel fees.

On July the 26th the order nisi of April the third awarding one thousand dollars counsel fees, five hundred dollars suit money and one hundred dollars per month alimony was made final, unless Mr. Chappell should on or before August the tenth dismiss his bill for divorce and pay the taxed costs and the two hundred and fifty dollars for counsel fees as provided in the order of June 15th. The taxed costs were paid, but the counsel fee was not, and the ⁵³⁵ bill was not dismissed. From these various orders appeals were taken to this Court and after argument were dismissed on January 8th, 1896. Thereupon writs of error were sued out and under them the record was transmitted to the Supreme Court.

Upon motion there made these were, on February 15th, 1897, also dismissed. On January the 16th, 1896, ten days after the appeals just referred to had been dismissed by this Court, an order was passed by the Circuit Court for Baltimore County, making the orders of April 3rd and July 26th, 1895, liens on Mr. Chappell’s property and further directing him to satisfy the arrearages of alimony amounting to one thousand dollars, the five hundred dollars suit money and the one thousand dollars for counsel fees, within ten days after a service of a copy of the order upon him or his solicitor. On July the 23 rd Mr. Chappell filed' what he styles exceptions to this order and an appeal to-this Court from the order itself. On the day following he filed other exceptions to the same order.

These exceptions, are, to say the least, most remarkable. They insist that the Circuit Court had no jurisdiction to pass the order of January the 16th because, first, though this Court had dismissed his former appeals he had made a motion for a reargument, the pendency of which motion rendered any action by the Court below “ultra vires” as he styles it, and deprived the lower Court of authority to take any action until the motion for a reargument had been disposed of; and because, secondly, at the time he, Chappell, filed the bill against his wife for a divorce there was pending between the same parties a suit, for nullity of the marriage, in the United States Circuit Court for the District of Massachusetts; and because, thirdly, both he and his wife were non-residents of Maryland and nót within the jurisdiction of the Court. On the same day he entered another appeal from the order of January the 16th. There is not a particle of evidence to support or sustain the averments of fact upon which reliance is placed in these exceptions ; but the order of January the 16th, though not ⁵³⁶ a final decree determining the ultimate issue to be decided, is an order directing money to be paid and is, therefore, within the terms of sec. 25 of Art. 5 of the Code.

There can be no doubt whatever that a Court of Equity has power to allow alimony to a wife pending a suit for divorce; nor can its authority to require the husband to pay her counsel fees and the costs of the proceeding be disputed. These are not now open questions in Maryland. The amount allowed is regulated by the circumstances of each case and is usually said to rest in the Chancellor’s sound discretion. But it by no means follows that this discretion is never open to review.

So far from this being so, it has been held on appeal from the final decree that the amount allowed for alimony may be curtailed (Ricketts v. Ricketts, 4 Gill, 106 ), and where an allowance was refused upon an application made to the lower Court after final decree and after the record had been transmitted to this Court on an appeal from the final decree, it was held that an appeal would lie from such refusal. Rohrback v. Rohrback, 75 Md. 317 . It is not perceived how, if an appeal will lie from an order refusing to allow alimony, none can be entertained from an improvident order making such an allowance. In the case of Hayward v. Hayward 77 Md. (unreported cases) 26 Atl.

Rep. 357 , the appeals were dismissed because there had been no final action on nisi orders requiring the husband to show cause why counsel fees and alimony pending the suit should not be allowed—the appeals were really taken from nisi orders. In disposing of the cases it was said : “ Until the Circuit Court finally acts upon the application for counsel fees and alimony, there is nothing from which an appeal can be taken.” Because there was no final action the appeals were dismissed, but they were not dismissed because no appeal could have been entertained had the nisi orders been made absolute. Certain it is, an order to pay alimony and an order to pay counsel fees are orders to pay money, and from an order to pay monej'- (other than an order to pay money to a receiver) the 25th sec. of Art. 5 ⁵³⁷ of the Code, in express terms allows an appeal. It cannot be successfully contended than an order for the payment of alimony or for the payment of counsel fees in divorce proceedings, forms an exception to the broad language of the statute.

The explicit terms of the statute negative such a contention. There is an exception named in the section, and but one exception, and that is an order for the payment of money to a receiver. From such an order no appeal will lie. This one exception of necessity excludes the introduction of any other by mere interpretation.

No better reason can be suggested for excluding from the terms of the Code an order requiring alimony and counsel fees to be paid, than for the exclusion of any other or different order for the payment of money. Nor can any valid reason be named why such orders should be irreviewable that would not, with equal force, apply to many others. Whilst the wife, generally speaking, undoubtedly has the right to be maintained and to be furnished with the aid of counsel by the husband and from his purse during the litigation, still the amount of the allowance ought not to be solely committed to the discretion of the inferior Court. An error against the husband in such an order might work as serious an injury to him as could possibly result to the wife from the brief delay incident to a review of the order on appeal.

Prior to the passage of various statutes restricting the right of appeal in chancery proceedings an appeal could be taken from any interlocutory decree or order. Gover v. Hall, 3 H. & J. 43 . By the Act of 1830, ch. 185, appeals were disallowed from all decrees other than those which were final, or in the nature of final decrees; but the Act of 1841, ch. 11 (which is incorporated in sec. 25 of Art. 5 of the Code) modified the Act of 1830 and gave an immediate appeal from an order directing the payment of money unless such payment was required to be made to a receiver. This provision has been the law of Maryland since 1841, and whilst no appeal involving alimony and counsel fees in divorce proceedings has arisen under it, there can be no good reason assigned for ⁵³⁸ excluding from the right of appeal specifically given from orders for the payment of money, such orders as direct the payment of alimony and counsel fees in a cause like this.

The grounds upon which the propriety of the order of January 16th, 1896, is assailed are untenable. The pendency of the motion for a reargument of the previous appeals did not oust the jurisdiction of the Circuit Court for Baltimore County. Rohrback v. Rohrback, supra. There is not a particle of evidence adduced to show that the parties in the cause were non-residents, much less that they were not citizens of the State when the order was passed.

In the bill of complaint filed by Mr. Chappell he asserts that he is a resident of Baltimore County and to this bill he made affirmation. Whilst an original proceeding to recover alimony will not be entertained by the Courts of this State if both the parties are non-residents (Keerl v. Keerl, 34 Md. 21 ), this proceeding is not such a case. The appellant by an ex parte affidavit appended to a written exception taken to the order of January 16th cannot, under our Chancery practice, avail of the statements in the exception as evidence. Even if this were a case where the doctrine of Keerl v. Keerl would be applicable, evidence should have been produced in the regular way to support the averment of non-residence.

This has not been done and cannot now be permitted. The jurisdiction of the lower Court was invoked by Chappell in the first instance, and he has adduced no evidence tending to prove the existence of a state of facts which would deprive the Circuit Court of the right to proceed to a final decree in the cause. The same remark applies to each and all of the other averments of his exceptions filed January 23 rd and 24th— there is not a shred of evidence to sustain them; and there is consequently nothing in the record to indicate, either, that the Circuit Court had no jurisdiction to pass the order of January the 16th, or, that in passing it there was any error either of fact or of law. So far then as the appeals relate to this order—the first and the second appeals—the order is affirmed; and cannot ⁵³⁹ again be questioned.

The former appeals from the prior orders were dismissed because those orders were then conditional—they were in the alternative and not final. After the order of January the 16th had been appealed from, an attachment for contempt was issued against Mr. Chappell, but was returned non est. Then an execution was issued to enforce the payment of the alimony, suit money and counsel fees, and a levy thereunder was made on the