Emerson v. Emerson

Constable, J., delivered the opinion of the Court. 'This appeal is from a decretal order sustaining a demurrer te a petition and dismissing the petition. The appellee filed a bill praying for a divorce a vinculo matrimonii, and that she be “declared to be entitled to receive by way of alimony such an allowance from her said husband as may be proportionate to his means and station in life.” ⁵⁸⁶ The appellant, failing to answer, a decree pro confesso was entered. During the- taking of testimony before the examiner there was offered in evidence an agreement between the parties, under the following introduction: “It is agreed in the above case that no testimony-need be taken bearing on the question of alimony and counsel fees, both parties hereby admitting that a proper and reasonable arrangement in reference thereto, to be incorporated in any decree of absolute divorce, that may be granted the plaintiff under the hill now pending is as follows:” The arrangement is then set- out in five provisions: jSTo. 1. That the husband shall pay the wife $28,800.00 per annum, in monthly installments, during her life.

ZSTo. 2. That he shall pay $5,000.00 to each of his wife’s counsel. .No. 3. That to secure the payment of the alimony, he shall deposit a certificate of six hundred shares of the stock of the Emerson Drug Company with trustees who shall, upon default in the payments of installments of alimony, have the stock transferred to themselves, and then collect the dividends to apply on account of installments due or to become due. That after the wife’s death the stock shall return to the husband; and that- until default in payment of alimony he shall continue to vote it.

Xo. 4. That the furniture in the former residence of the couple shall remain the property of the wife, with the exception of some hooks to he selected by the husband, a portrait and a few curios. ISTo. 5. That an ’’Italian Garden” adjoining the residence shall remain appurtenant to the residence, which is the wife’s property, so long as the wife shall reside there; and any purchaser of the residence from the wife shall have an option to purchase the garden from the husband at a price fixed.

Then follows (6), a specific promise on' the part of the husband to pay the alimony of $28,800.00 annually; and l/i) an agreement that if the Court should think it beyond ⁵⁸⁷ its jurisdiction to incorporate in the decree the provisions in Paragraphs 3, 4, 5 and 6, the parties should abide by them nevertheless. A decree was passed divorcing the appellee from the appellant a vinculo matrimonii and the above provisions of the agreement were adopted by .the Court, and, with the exceptions of Paragraphs 6 and 7, the exact language of the agreement was incorporated in the decree. The appellee subsequently remarried, and fifteen months after the passage of the final decree the appellant filed a petition alleging the remarriage, and that the new husband was liable and able to provide for the maintenance and support of the appellee, and praying that an order be passed modifying the decree, to the extent of relieving him of all further obligations for the payment of alimony to the appellee. To this petition the appellee filed a demurrer, denying that the appellant was entitled to any relief, and that the Court was without jurisdiction to grant the relief prayed.

The questions raised are: Has a Court of Equity in Maryland the power to modify, alter or rescind a final decree, founded upon a bill for absolute divorce, where there are no reservations, after it has become enrolled; if so, does the remarriage present such a case for its modification or rescission; and what effect, if any, does the fact that the part of the decree providing for alimony, is founded»upon an agreement of the parties, have upon the decree. As to the jurisdictional question, the appellee contends that it is a fixed and rigid rule of the Maryland practice that an enrolled final decree is final upon the rights of the parties, and that the Courts have no power, whatever, to change those rights, except in cases not heard upon the merits wherein it is alleged that the decree has been entered by mistake or surprise, or under such circumstances as shall satisfy the Court, in the exercise of a sound discretion, that the enrollment should he discharged. Pfeltz v. Pfeltz, 1 Md. Ch. 456 ; Brown v. Thomas, 46 Md. 640 ; Herbert v. Rowles, 30 ⁵⁸⁸ Md. 270; Hollingsworth v. M’Donald, 2 H. & J. 198 , note “d”; Rice v. Donald, 97 Md. 401 . The correctness of this contention, as a general rule, is not open to question.

But it is claimed by the appellant that this decree being one dealing with alimony, as it is understood in Maryland, the Court retains a continuing jurisdiction over it and has power to modify its provisions as to the alimony at any time, upon proper cause shown. The question has never been definitely settled in this State, but has been variously decided in other States, so it will be well for us to consider the jurisdiction of our Courts over the question of divorce and alimony. There has been a recent decision in this State, McCaddin v. McCaddin, 116 Md. 568 , which the appellee claims controls this case. TVe can not agree with this contention.

The question involved in that case was not whether the provision for alimony in a decree of divorce a vinculo could be modified, but whether the provision could be modified where the decree provided for alimony alone, without a divorce of either kind. Chieb Judge Boyd, in delivering the opinion of the Court in that case, said: “There has been some diversity of opinion between the Courts of different jurisdictions as to how far a final decree, allowing alimony, can be modified after the decree has become enrolled;” and then quoted from 2 Am. & Eng. Ency of Law (2nd Ed.), 135, to the effect that the amount of alimony allowed pendente lite, or upon a decree of divorce a mensa el ihoro or alimony without a divorce could be changed as circumstances demanded it; but in cases of a decree a vinculo the award is absolute and could not be changed after enrollment, unless the decree contained a reservation of that right, or a statute gave the power to modify. Judge Boyd then said; “It seems to be well settled that at least when a divorce, a mensa el Ihoro is granted or where there is an allowance of alimony without divorce, the decree can be modified as circumstances may require, etc.” The question involved in this appeal was not befoiv the Court in that case.

There was no opinion by the Court ⁵⁸⁹ on this point, but merely a quotation stating what the rule was held, to he by that authority. We think the learned «judge below was correct in holding that that authority did not control this question. Divorce was entirely unknown to common law, and in this State is of statutory creation. Limited divorces with alimony were in England for years granted by the Ecclesiastical Courts.

In this State, there being no Ecclesiastical Courts the Legislature granted divorces; but the Courts of Chancery assumed jurisdiction over alimony. Rut by the Act of 1777 (Feby. session), Ch. 12, Code (2912), Art. 1G, sec. 14, the power was given expressly to Courts of Equity to' exercise this jurisdiction. That Act provides that, “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.” The only kind of alimony known to the Ecclesiastical Courts being that granted in connection with limited divorces. By the Act of 1841, Chapter 262, Code (1912)} Article 16, section 36, Courts of Equity are given jurisdiction over both kinds of divorces.

By the same Act, Code (1912), Article 16, section 15, it was provided that in all cases where divorces were granted alimony might be awarded. The only other provision of law, in this State, dealing with alimony is in Code (1912), Article 16, section 38, where it is provided that, “In all cases where a divorce is decreed, the Court passing the sanpie shall have full power to award to the wife such property or estate as she had when married, or the value of the same, or of such part thereof as may have been sold or converted by the husband, having regard to the circumstances of the husband at the time of the divorce, or such part of any such property as the Court may deem reasonable.” Nowhere in our statutes is there a definition of what alimony is, and our Courts, since the Act of 1841, in granting alimony in connection with a decree of divorce a vinculo, have been awarding it as it was understood and ⁵⁹⁰ awarded by the Ecclesiastical Courts of England and our Equity Courts, as incidental to divorce a mensa. Our understanding of alimony and its incidents has been borrowed from the decisions of the Ecclesiastical Courts, and this Court has, on several occasions, said that in divorce cases the Courts of Equity of this State do not sit in the exercise of their general equitable jurisdiction, but as a Divorce Court, and are governed by the rules and principles established in the Ecclesiastical Courts of England, so far as they are consistent with the-Code. J. G. v. H. G., 33 Md. 401 ; Fisher v. Fisher, 93 Md. 303 .

In Wallingford v. Wallingford, 6 H. & J. 485 , this Court defined alimony to be “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 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 apart separate.” This is the definition of alimony which has been recognized and followed through all of the Maryland decisions down to the present. The right was founded on the common law obligation of the husband to give support to his wife, and in the absence of statutory provision, of course, would fail upon a decree of divorce a vinculo, the relation of man and wife being thus annulled. But our Act of 1841, Chapter 262, conferred upon our Courts, as we have seen, the jurisdiction of granting-divorces of both kinds, limited and absolute, and in addition to the jurisdiction they already possessed as to alimony upon a limited decree similar to the Ecclesiastical Courts, empowered them to award alimony upon a decree a vinculo.

The Act makes no distinction whatever between alimony upon a decree a mensa and upon a decree a vinculo. We think it is clear, then, that the Act providing for alimony upon this decree, new to the Courts, was intended to provide for alimony of the same character and limitations as the ali ⁵⁹¹ mony the Courts had for so' long dealt with. In a great many of the States statutes provide that the Court shall award to the wife by way of alimony upon a decree for divorce a portion' of the property held by the husband and wife or a sum of money in lieu of the property, to be absolutely hers. Although this is designated as alimony it is totally different from the theory of alimony as recognized in Maryland.

One is a division of property, while the other is the maintenance of the wife out of the income of the husband. It is not, nor can it be, disputed that the Ecclesiastical Courts had power at any time, upon proper cause shown, to modify the provisions of a decree as to alimony. It is also’ conceded, that our Courts of Equity have power to modify provisions as to alimony in decrees of divorce a mensa. The jurisdiction, in decrees of that character, was not exhausted by the rendering of the decree.

The authorities are unanimous that the Courts retained the continuing jurisdiction over these decrees, and although the decree was final as to the separation of the parties the alimony could be increased or diminished by the Courts, from time to time, as circumstances demanded it. In Alexander v. Alexander, 13 App. D. C. 334, the same jurisdictional question was involved. The law of the District of Columbia, as to divorces and alimony, was on practically the same footing as ours. The Court said: “It is very true that in these eases (divorces a vinculo matrimonii) the result of the adjudication is in some respects radically different from that of the adjudication in cases of • limited divorce.

For by a decree dissolving the bond of matrimony the parties are in law absolutely and irrevocably separated from each other, and they become to each other as total strangers * * * But the statute, for obvious reasons of public policy and upon equitable grounds, authorizes the allowance of alimony even in these cases; and the question is, whether in the allowance of alimony in cases of divorce from the ⁵⁹² bond of matrimony the character of the decree is of more rigid and absolute finality than that of the decree in cases of divorce from bed and board. “The statute contains no intimation of any difference. On the contrary, the intimation is quite the reverse. The implication is that alimony in cases of divorce from the hond of matrimony is placed precisely on the same basis as alimony in cases of divorce from bed and board. Nor is there any good ground in reason for the application of a different rule in the different classes of cases.

The argument would seem to be that, because a decree dissolving the bond of matrimony is, or may become, absolutely final and conclusive, therefore, the added provision for alimony must be equally final and conclusive. But this argument is wholly untenable. It is nothing unusual in equity for a decree in equity to be absolutely final in some respects or with regard to some matters, and to be interlocutory and subject to modification in other respects * * * Now, there is very much greater reason why, in divorce cases more than in any other class of cases, the interlocutory or incidental portion of the decree should continue to remain indefinitely, under the control of the Court. Decrees of divorce from the bond of matrimony adjudicate only one permanent right — the right of the complainant to have the bond of marriage dissolved and to be in law placed in the position of an unmarried person * * * The decree for alimony