Cohen v. Cohen

Johnson, J., delivered the opinion of the Court. By decree of the Circuit Court No. 2 of Baltimore City, passed on January 13th, 1937, Kate G. Cohen was divorced a vinculo matrimonii from Sam Cohen, and, in accordance with an appropriate prayer of the bill of complaint, the decree further provided: “And it is further ordered, adjudged and decreed that the custody of the infant child of the parties, Harold Joseph Cohen, be and it is hereby awarded unto the Complainant, Kate G. Cohen, subject to the further Order of Court; and that the Respondent, Sam Cohen, pay unto the Complainant, Kate G. Cohen, as alimony for the support of herself and the infant child at the rate of Seven Dollars and Fifty Cents ($7.50') per week, payable through the Probation Department.” Subsequently Sam Cohen discontinued making the weekly payments specified in said decree, and, at the request of Mrs. Cohen, the former husband was by the probation department of the Supreme Bench of Baltimore City notified to appear in court and answer contempt proceedings for failing and neglecting to make such payments. A hearing was held thereon on November 26th, 1937, and the chancellor on December 8th filed a memorandum that, under the terms of the decree, “the award of $7.50 provided therein for the support of the infant child in the proceedings, as well as alimony for ⁶³ the plaintiff,” could not, under the decisions of the Court of Appeals of Maryland, be enforced by an action of contempt. He accordingly, as of the date of the hearing, dismissed the contempt proceedings brought against the former husband on behalf of the wife.

An appeal from this order by Kate G. Cohen appears in No. 26. On the date of the hearing in the contempt proceedings, the former wife filed a petition in the same court reciting the passage of the decree of divorce, and the allowance therein of the weekly sum “for the support of herself and the infant child” of the parties; further that the chancellor in passing said decree had failed to apportion. the part of said weekly sum for the wife as alimony and that part which was intended for the support of the infant child. The prayers of that petition were (a) for clarification of the original decree; (b) for general relief. To this petition, Sam Cohen filed a demurrer, and, after hearing, this was sustained by the chancellor.

It is from this order that the appeal in No. 27 is prosecuted. We will first consider the appeal in No. 26. It is urged by counsel for appellee that the provision contained in the original decree of divorce for the payment of Kate G. Cohen “as alimony for the support of herself and the infant child” is not in fact alimony, but that a part of it must be regarded as a provision for the support of the infant, and since, in cases of this character, the jurisdiction of equity to hold appellee in contempt is limited strictly to his failure to pay alimony, the order dismissing the contempt proceedings is proper. Such an argument is unanswerable if the correctness of its first premise be assumed.

Code, art. 26, sec. 4; Miller’s Equity Proc., sec. 244; Bushman v. Bushman, 157 Md. 166 , at page 174, 145 A. 488, 491 , and authorities there cited. In Wallingsford v. Wallingsford, 6 H. & J. 485 , alimony was defined by our predecessors as “A maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct, he compels her to separate from him. It is not a portion of his real ⁶⁴ 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