Colburn v. Colburn

Orth, C. J., delivered the opinion of the Court. This is the latest battle in the seemingly never ending war 1 triggered by the “desperate thing” 2 the marriage of ³⁴⁹ MARJORIE B. S. COLBURN (Wife) and JAMES B. COLBURN, JR. (Husband) proved to be. Their present marital status is that Wife, after extended proceedings (suit commenced 20 January 1970), was granted a divorce a mensa et thoro by decree of the Circuit Court for Anne Arundel County, filed 21 April 1971, which we affirmed on appeal, Colburn v. Colburn, 15 Md. App. 503 , and on 14 December 1971, Husband obtained a divorce a vinculo matrimonii in an ex parte proceeding before the Circuit Court of the Seventeeth Judicial Circuit of Florida, Broward County.

There were two preliminary skirmishes concerning property rights of the parties, which were bitterly fought in the lower courts and the Court of Appeals, Colburn v. Colburn, 262 Md. 333 and Colburn v. Colburn, 265 Md. 468 . The decree of the Circuit Court for Anne Arundel County granting Wife a divorce a mensa et thoro, awarded her alimony in the amount of $650 a month and gave Husband custody of their mentally retarded son, with responsibility to support him, but with visitation rights in Wife. 3 It was shortly after this decree that Husband moved to Florida and established residency. He fell delinquent in the payment of alimony. Wife filed a petition requesting the court to cite Husband in contempt for failure to make the required alimony payments and subsequently requested an adjustment of her visitation rights alleging that Husband had “unreasonably, arbitrarily and capriciously made it difficult ... to exercise such visitation rights on many occasions and impossible on some occasions.” An order modifying Wife’s visitation rights issued from the Circuit Court for Anne Arundel County on 15 December 1971 and was amended on 5 January 1972. 4 Upon the grant of the divorce in Florida, Husband terminated all alimony ³⁵⁰ payments.

On 17 January 1972 Wife petitioned the Circuit Court for Anne Arundel County for an order that Husband’s assets and property located in Maryland be sequestered and that the rents and profits therefrom be applied to the satisfaction of Husband’s alimony arrearage and future obligations. An order so directing issued on 18 January 1972. On 27 January 1972 Husband moved to quash the order because Wife was “seeking to harass him unnecessarily”, and on 4 February 1972 moved to “modify or terminate alimony and visitation rights” on the ground that the Florida divorce decree relieved the Maryland courts of “authority to continue alimony payments” as well as jurisdiction over the custody of the minor child. The motion to quash was denied, and Husband, pursuant to the denial of Wife’s Motion Ne Recipiatur, was permitted to refile his motion of 4 February 1972. 5 On 28 July 1972 Husband again moved to modify or terminate alimony and visitation rights and filed a motion to terminate sequestration.

On 28 September 1972 Wife petitioned for a monetary decree for back alimony and moved for summary judgment. The motions were brought on for hearing on 10 December 1972 and Wife presented her testimony. The court continued the hearing to permit Husband to appear with a current accounting as demonstrative of a “change in circumstances” sufficient to warrant a reduction in his alimony obligation. The hearing resumed on 16 January 1973.

Husband presented his testimony, and the solicitors for Husband and Wife argued the matter. On 25 January 1973 the court filed its decree which: 1) denied Husband’s motion to terminate sequestration; 2) reduced Husband’s obligation for permanent alimony from $650 per month to $400 per month; ³⁵¹ 3) adjusted the annual visitation schedule to allow the minor child to visit Wife at her residence five days during the Christmas holidays, from 26 December until 30 December. Wife appealed from those portions of the decree which reduced alimony and altered the visitation periods. Husband cross-appealed. 1 Wife, as appellant, contends: “I. The parties having entered into a stipulation with respect to changing the visitation schedule previously established, the Chancellor erred in modifying Appellant’s visitation rights in disregard of that stipulation.

II

It was an abuse of discretion for the Chancellor to continue, indefinitely, the hearing on Appellee’s motion to modify or terminate alimony when the Appellant failed to appear at the hearing on November 10, 1972, and was unable to present sufficient evidence to support that motion.

III

The Chancellor erred in reducing alimony upon the basis of the evidence submitted and for the reasons stated.” Husband, as appellee, answers: “I. The possibility of a mistake in the identification of dates in the decree with regard to the wife’s visitation privileges should be determined by the lower court pursuant to its revisory power under Md. Rules 625 and 681.

II

It is beyond the scope of review to consider the chancellor’s ruling on continuing the hearing below since this question was never presented to the lower court. ITT. It was proper for the chancellor to modify a prior award of alimony based on the gross ³⁵² amount of assets of the wife, her current income and the husband’s financial situation.” Husband, as cross-appellant, claims: “I. Article 16, Sections 3 and 5 of the Annotated Code violate the Equal Protection Clause of the Fourteenth Amendment.

II

The award of alimony in Maryland pursuant to a decree of divorce a mensa et thoro obtained by the wife did not survive the subsequent Florida divorce decree granting husband divorce a vinculo matrimonii.

III

The award of alimony to the wife should be terminated and/or modified.

IV

The Maryland courts are without jurisdiction to modify the visitation rights of the wife with regard to the minor child.” Wife, as cross-appellee, replies: “I. The cross-appellant waived any right to assert, on this appeal, that Article 16, Sections 3 and 5 of the Annotated Code of Maryland violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, by failing to raise and assert that issue during the original trial of this divorce action, or appeal from the decree of April 21, 1971, or in his motion to quash the writ of sequestration, and by failing to appeal from the order denying his motion to quash the writ of sequestration.

II

Article 16, Sections 3 and 5 of the Annotated Code of Maryland are not unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

III

Having asserted in a prior motion that his ³⁵³ obligation to pay alimony terminated by reason of the ex parte divorce a vinculo matrimonii he obtained in Florida, and having failed to appeal from an adverse decision on that issue, the cross-appellant is precluded from raising that issue on this appeal. Under the circumstances of this case, the ex parte divorce obtained by the cross-appellant in Florida did not terminate his obligations to pay alimony previously awarded the cross-appellee.

IV

There was insufficient evidence to support a reduction in alimony. V. The ex parte Florida divorce decree did not oust the Circuit Court’s continuing jurisdiction over child custody and visitation.” VI. We group these arguments into three categories: 1) The Constitutional Question. 2) The Payment of Alimony. 3) The Visitation Rights. (1) THE CONSTITUTIONAL QUESTION Code, Art. 16, § 3 provides: “In cases where a divorce is decreed, alimony may be awarded.” Section 5 (a) of the Article, however, sets out a proviso: “In all cases where alimony or alimony pendente lite and counsel fees are claimed, the court shall not award such alimony or counsel fees unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs.” On 7 November 1972, Art. 46, Declaration of Rights, Constitution of Maryland, was ratified, and became effective 5 December 1972, guaranteeing: “Equality of rights under the law shall not be abridged or denied because of sex.” Husband urges that the provisions of § 5 (a) offend the constitutional guarantee, relying on Frontiero v. Richardson, 411 U. S. 677 . ³⁵⁴ Assuming arguendo that the question is properly before us, Minner v. Minner, 19 Md. App. 154 , is dispositive of it.

The rationale of Minner is found in our “* * * accord with the two rules which the Supreme Court has stated it feels bound to follow in its consideration of the constitutionality of a statute: ‘one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 . In United States v. Raines, 362 U. S. 17, 21 , the Court said that ‘[kjindred to these rules is the rule that one will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.’ ” At 158. We held, at 159: “We do not so construe the provisions of Art. 46 of the Declaration of Rights as to abridge or deny a wife the right to be awarded alimony and counsel fees because a husband may have no right to such award. An obligation, not a right, of Husband is here involved.

The obligation of Husband to pay alimony and counsel fees as decreed by the court in the exercise of its clear authority is not vitiated by the constitutional mandate. It may be that if a husband seeks and is denied sustenance and counsel fees upon proof of circumstances such as would entitle a wife to alimony and counsel fees, he would then have standing to invoke the dictates of Art. 46. But that situation is not in this case existent. The application of the statutes is constitutional as to Husband and he will not be heard to attack them on the ground that impliedly they might be taken as applying to other persons or other situations in which their application might be unconstitutional.” We did not believe that Frontiero v. Richardson, supra, compelled a contrary view.

As we said in Minner , at 161: “We shall apply [Art. 46] in a case properly invoking it.” This is not such a case. 6 ³⁵⁵ (2) THE PAYMENT OF ALIMONY In 1777 the General Assembly of Maryland in an “Act Concerning Marriages”, ch. 12, § 14, declared “That the chancellor shall and may 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.” The statute endures to this day. 7 The result has been that for a hundred and ninety-two years, until 1969, Maryland remained steadfast in its adherence to the rule, despite a departure therefrom by many other states, that the court had no authority to make, change or enforce provision for payment by a former husband to his former wife of alimony (except power reserved, expressly or by implication, to modify provision for alimony in a decree for divorce a vinculo) or “suit money”. It was immaterial whether the marriage relationship was terminated by death, by a Maryland divorce, or by a divorce in another state. 8 Staub v. Staub, 170 Md. 202 (1936); Johnson v. Johnson, 199 Md. 329 (1952); Johnson v. Johnson, 202 Md. 547 (1953); Brewster v. Brewster, 204 Md. 501 (1949); 9 Upham v. ³⁵⁶ Upham, 238 Md. 261 (1965). 10 The provisions of Acts 1841, ch. 262, § 3, codified in the 1951 Code as Art. 16, § 15, and in the 1957 Code as Art. 16, § 3, that “In cases where a divorce is decreed, alimony may be awarded”, was not considered to affect the rule. In the second Johnson case, however, decided 12 June 1953, two members of the Court of Appeals of Maryland voiced their disenchantment with the Maryland position. Hammond, J., later Chief Judge, in a concurring opinion in which Chief Judge Sobeloff concurred, expressed the belief that Maryland’s “blind adherence to an illogical theory” put a separated wife in a real predicament. “She is on the horns of a dilemma, having the alternative of submitting to the jurisdiction of a foreign Court, where as an out-of-state defendant, she is under a disadvantage in seeking alimony, or of ignoring the foreign divorce proceeding and losing the alimony granted by her home Court entirely.” He declared: “Under the mores and practices of the times, it is hardly fair for Maryland to put its lady citizens in this predicament because of a narrow, artificial and unrealistic concept and judicial interpretation of alimony.” 202 Md., at 558 .

He explained why he thought the concept and interpretation “narrow, artificial and unrealistic”, at 558-559: “Divorce was unknown under the common law, and is of statutory creation in Maryland. Limited divorces with alimony were granted in England by the Ecclesiastical Courts. Here the Legislature at first granted divorces but the Courts of Chancery assumed jurisdiction of alimony. By what is now Section 14 of Article 16 of the Code, [now Art. 16, § ³⁵⁷ 2] passed in 1777, Courts of equity were expressly given alimony jurisdiction.

The Act provided: ‘The Courts of equity of this State shall and may 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.’ Alimony as known to the Ecclesiastical Courts was support granted where there was a divorce a mensa. In 1841, by what is now Section 15 of Article 16 [now Art. 16, § 3] of the Code, the Legislature provided that in all cases where divorces were granted, alimony may be awarded. There is no definition of alimony in the Statutes, and, since the Act of 1841, in exercising the jurisdiction granted by that Act, the Courts have modelled the support awarded in divorces a vinculo in the image of alimony as it had been known to the Ecclesiastical Courts. It is immediately apparent that the judicial concept of alimony as authorized by the Act of 1841 was illogical because under the ecclesiastical law, alimony is support of the wife by the husband as long as they are both living and are married to each other.

The limited divorce granted by the Ecclesiastical Courts was nothing more than a legally authorized separation and did not destroy the status of husband and wife; therefore, it was entirely consistent and logical that the husband be required to support the wife even though they were living apart. Since the divorce a vinculo severs the matrimonial status, alimony in the traditional sense cannot rationally be compelled after an absolute divorce.” He found that “In reality, the alimony permitted by Section 15 [now § 3] of Article 16 of the Code is a legislative permission for the Court to require a former husband to pay support to his former wife.” Id., at 559. He cited Emerson v. Emerson, 120 Md. 584 , Clarke v. Clarke, 149 Md. 590 , Marshall v. Marshall, 162 Md. 116 , and Tome v. Tome, 180 ³⁵⁸ Md. 31, as indicating that the support awarded in an absolute divorce is not historical alimony and as showing the incongruous results which have flowed from the attempts to work with it as if it were. Despite the strong views shared by Judge Hammond and Chief Judge Sobeloff, and so forcefully expréssed, they did not dissent from the result reached by a majority- of the Court, not because they thought the result right or desirable, but because that result was “indicated by a decent respect for the rule of stare decisis and compelled by obedience to the principle of res judicata” in the light of the holdings in the first Johnson case, 199 Md. 329 .

It, seemed desirable to them that the rule be changed by Legislative action: “The unfortunate distinctions in the results of the cases which have been produced by the restricted concept of alimony where there is an absolute divorce, are not likely to be cured by judicial decision, for the reasons which prompted me to concur in this appeal. It is best, perhaps, if they are not. If a change is to be made in the established law, it would seem appropriate that the Legislature make it. The soundness and integrity of the judicial process are thus preserved.” 202 Md., at 561 . 11 In Clayton v. Clayton, 231 Md. 74 (1963), there was a challenge to the authority of the divorce court to award alimony to a wife incident to a decree of divorce on the ground that her husband had another wife living at the time of the marriage.

One of the grounds for .a divorce a vinculo was “for any cause which by the laws of this State, render a marriage null and void ab initio,” Code, Art. 16, § 24, which the Court thought encompassed bigamy. The argument was that alimony could be granted only for causes cognizable in the ecclesiastical courts under Code, Art. 16, § 2, and those courts granted alimony only where there was a divorce a ³⁵⁹ mensa and the marital status subsisted. The Court stated that § 3 of Art. 16 “* * * was specifically designed to enlarge the jurisdiction of the equity courts beyond what was confined by Sec. 2, and to authorize the award of support beyond the scope of historical alimony.” 12 At 76. It read “alimony” in § 3, “not in the technical sense of the word, but as commensurate with ‘support’.” At 77.

Recognizing that alimony is not generally allowed in any case where the marriage is declared to be null and void ab initio in the absence of statute, the Court found that “* * * inclusion of prevenient invalidity as a ground for divorce must be ascribed some meaning, and we think it shows a legislative intent to permit an award of alimony in a proper case.” Idem. The Court noted, at 77-78: “If other questions relating to voidable marriages and annulments are left unanswered, that is a matter for legislative consideration * * * » Even though the Court of Appeals adhered to the rule deplored in the concurring opinion in the second Johnson case in deciding Brewster v. Brewster, supra, a year later, and in deciding Upham v. Upham, supra, two years after the decision in Clayton , 13 it seems that by 1969 the time was ripe for a change of judicial attitude in two areas. The Court of Appeals appeared no longer content to await Legislative action regarding the rule that an unimpeached foreign decree granting an absolute and final divorce to the husband 14 would deprive the courts of this State of power to ³⁶⁰ award the wife monetary support for herself, or enforce the grant of such support in a prior decree, and seemed to think it time to ease, at least to some extent, the strictures of the rule. “The Legislature has not seen fit to respond to the suggestions in the concurring opinion in the second Johnson case or to those in Clayton and we now take the view that the rule of the Johnson cases restating the earlier cases should be reexamined and relaxed, since in Clayton we did change the established concept of alimony in cases of absolute divorce by reading ‘alimony’ in § 3 of Art. 16 of the Code as commensurate with ‘support’ and allowable where there never was the legal relation of husband and wife and thereby changed the concept of statutory alimony which underlay the rule of the Johnson cases and the earlier cases on which they relied.” Dackman v. Dackman, 252 Md. 331, 344-345 , decided 7 February 1969. In Dackman , at least some of the views on the matter of Judge Hammond, by then Chief Judge of the Court of Appeals, had the approval of all the members of the Court, and he spoke for them.

He set out the factual posture of the case: “The appellant husband and the appellee wife were married in 1951 and lived together in or near Baltimore until late in 1967, when the husband went to Nevada on November 21 with his new found love, and established residence. He filed suit for divorce on January 15, 1968, some eight weeks after he arrived, and on February 14 next was granted a divorce, and promptly married his paramour. The wife did not submit to the jurisdiction of the Nevada courts and was not summoned in Nevada.” 252 Md., at 333 . While the husband was establishing his Nevada domicile, the wife filed a suit in the Circuit Court No. 2 of Baltimore City seeking permanent alimony on the basis of his adultery, and custody of and support for the four children of the couple, as well as injunctive relief to prevent the husband from removing from Maryland considerable assets.

The husband appealed from an order of the court below denying his ³⁶¹ motion to dismiss because of lack of personal jurisdiction. In remanding the case without affirmance or reversal for further proceedings, 15 the Court of Appeals reviewed the history of the Maryland law as it stood theretofore. It then proceeded to relax that law. It did so on the basis that “* * * a court of equity has inherent power, independent of its authority to grant a divorce, to entertain and grant an application by a wife against her husband for alimony where he is at fault.

Taylor v. Taylor, 108 Md. 129 ; Woodcock v. Woodcock, 169 Md. 40 ; Walker v. Walker, 125 Md. 649 ; Wathen v. Wathen, 245 Md. 684, 686 . Section 2 of Art. 16 of the Code, enacted in 1777, declares this inherent power. Where the court cannot obtain jurisdiction in personam over the husband it may award support, if the wife proves misconduct or behavior which would justify granting her a divorce, 16 payable from property of the husband within the court’s jurisdiction. Commonwealth of Penna. v. Warren, 204 Md. 467 .” 17 Code, Art. 16, § 4,