Flood v. Flood

Orth, C. J., delivered the opinion of the Court. I This appeal first calls upon us to decide whether an adulterous 1 wife may be awarded alimony 2 upon the grant ³⁹⁷ to an adulterous husband of a divorce a vinculo matrimonii on a nonculpable ground. The Law Courson v. Courson, 213 Md. 183 , concerned an act of adultery by a wife who was living separate and apart from her husband by virtue of a divorce a mensa et thoro. A majority of the Court, over the vigorous dissent of two of its members, said flatly, at 188: “We hold the proper rule, supported by reason and authority, is that when a wife, who is living separate and apart from her husband due to his fault and who has obtained no more than a limited divorce from him, commits adultery, she forfeits her right to her husband’s support and the future payments of alimony.” The rationale of the holding was found in the language of the New Jersey Court of Chancery in the case of G_v.

G_, 56 A. 736, 740 , with which the majority of the Court of Appeals voiced complete agreement: “Under a divorce a mensa et thoro the marriage relation still exists, and with it the duty of chastity. Such a divorce is not license to the wife to indulge in sexual connection with another man .'. . .” 3 213 Md. at 188 . The Court of Appeals does not appear to have expressly departed from its holding in Courson . In Flanagan v. Flanagan, 270 Md. 335 , however, although referring to Courson only with respect to the history of alimony in ³⁹⁸ Maryland, and not discussing the Courson holding, it dealt with wrongdoing as affecting alimony.

Pointing out that in determining an award of alimony, a court should consider, among other factors, “the circumstances leading up to the separation, the fault which destroyed the home”, 4 it observed that it was firmly established that when a wife’s fault precludes her from procuring a divorce she is prevented from obtaining alimony. At 339. It followed that in a divorce action on culpable grounds where there was no right to a divorce, there was no right to alimony. And, the Court determined, its previous opinions which established the standards for fixing alimony 5 were equally applicable in a nonculpatory divorce action. 6 Thus, concluded the Court, although the parties’ economic circumstances are certainly of great importance, 7 “any of their conduct which contributed to the destruction of the marriage is also relevant to a determination of what is just.” At 341.

It spoke of the discretion of the chancellor in such matters: “As each factual situation is unique, it is obvious that the chancellor must be entrusted with wide discretion in awarding alimony. This would include those cases in which he is required to consider the culpability of the parties by taking into account the circumstances leading up to that point in time when the couple, who have been joined in marriage to become one, separate and become two once more, as well as the fault which destroyed the home.” 270 Md. at 341 . The Court then distinguished acts of wrong doing. It held that “. . . in those suits in which the actions of the party seeking such a pecuniary award constitute the sole cause for ³⁹⁹ the demise of the marriage, and their wrongdoing consists of acts which are either adultery or abandonment, then, except in rare instances where there exist extremely extenuating circumstances, the award of any alimony would be an abuse of discretion.” At 341.

As to acts causing the separation, other than adultery or abandonment on the part of one party, or fault on both sides which caused the separation, “... the chancellor should consider the parties’ degree of blame as well as their relative guilt in those cases when applicable and, in conjunction with [other factors to be considered], 8 decide upon the proper award. In this thought process, the greater degree of fault on the part of the wife demonstrated, the greater the need which she must show to entitle her to an award of alimony appropriate to the circumstances otherwise existing.” At 341-342. Thus, Flanagan clearly concerned acts which caused or contributed to the separation of the parties, and which, therefore, were necessarily committed before the marriage’s demise. Courson concerned acts committed after the separation of the parties was a fait accompli.

Under Flanagan , if it is the wife’s act which is the sole cause for the demise of the marriage, and that act is adultery, she is precluded from obtaining alimony “except in rare instances where there exist extremely extenuating circumstances.” Under Courson , if the wife commits adultery after the separation, she ipso facto loses all right to alimony; not even the mercy of “extremely extenuating circumstances” is indicated in Courson . So, to this point of comparison, it seems that an adulterous act causing the demise of a marriage is to be treated with somewhat more leniency than ⁴⁰⁰ an adulterous act committed after the separation and not contributing to it. But in either event, the general rule is that the wife is not entitled to alimony. Flanagan leaves unanswered what happens in a nonculpable divorce suit when the actions of the wife seeking alimony do not constitute the sole cause for the demise of the marriage, but there is fault on both sides which caused the separation of the parties, and the fault of the wife is an act of adultery.

We can only read Flanagan as holding that in such circumstances the chancellor should consider the degree of blame as well as the relative guilt of the parties, and, in conjunction with other factors to be considered, decide upon a proper award. As quoted supra, Flanagan declares: “The greater degree of fault on the part of the wife demonstrated, the greater the need which she must show to entitle her to an award of alimony appropriate to the circumstances otherwise existing.” We note that the degree of fault on the part of the adulterous wife may be mitigated if the contributory fault of the husband is also an act of adultery. The holdings of Courson and Flanagan , read together, may not be disparate, but they are anomalous. Under Flanagan , a wife whose act of adultery, committed before the fact of separation, contributed to it, may be awarded alimony if the husband is also guilty of wrongdoing contributing to the separation.

But if she commits adultery after the fact of separation, she may not, under Courson , receive alimony in any event. 9 The Facts We turn to the facts of the case before us. On 19 November 1969 JESSIE C. FLOOD (Husband) filed an amended Bill of Complaint 10 against IDA MAE FLOOD ⁴⁰¹ (Wife) in the Circuit Court of Baltimore City for a divorce a vinculo matrimonii on the ground that the parties had been separated for more than five years. After a decree pro confesso and receipt of uncontested testimony of Husband, a decree was entered on 2 September 1971, granting the divorce, giving custody of minor children to Wife with support of them by Husband, and awarding permanent alimony to Wife. Husband’s motion to review and correct the decree was denied and he appealed, attacking only that portion of the decree with respect to alimony.

We held that a decree of divorce based on a nonculpatory ground did not exonerate Husband from the payment of alimony, but, we reversed that portion of the decree granting alimony. We thought that the chancellor did not have before him any evidence from which it appeared that Wife’s income was insufficient to care for her needs. Code, Art. 16, § 5 (a). He could not, therefore, properly award a specific sum as alimony.

We remanded for further proceedings. Flood v. Flood, 16 Md. App. 280 . Further proceedings below pursuant to our remand resulted in the entrance of a decretal order on 2 July 1974. Husband was to pay: 1) $15.45 per week through the Probation Department for support and maintenance of the minor child of the parties; 2) unto wife through the Probation Department $25.75 per week as permanent alimony accounting from 8 March 1974, subject to further order of the court; 3) $7.50 per week arrearages; 4) $300 as a contribution to the counsel fee of wife’s attorney; 5) costs of the proceedings.

Husband appealed. He first asks: “Can the Court award alimony to a wife in a nonculpatory divorce action when it is shown that she committed adultery during the period of separation? ” ⁴⁰² The Decision The chancellor found as a fact from the evidence adduced at the hearing that the fault which destroyed the home was Husband’s conduct. He found that Husband had committed adultery. He elaborated on Husband’s conduct — “... his continual going around with women, his admission which was not denied that he is the father of a child, the mother of which is not Mrs. Flood.

The fact that the various women were in the home during the absence of Mrs. Flood on one occasion for six weeks,.... The argument that ensued as a result of the wife quite naturally confronting the husband with this behavior, I remember when I say this behavior, I mean staying away from home a great deal, staying out late at night, arguing with her, beating her. When she confronted him with that he not only admitted paternity, but he in effect told her to get out. So, looking at the totality of all those factors, I do find as a fact clearly that his conduct destroyed the marriage.” There was evidence sufficient to support these findings.

The chancellor also found that Wife had committed adultery in 1968, and there was evidence sufficient to support that finding. On cross-examination she was asked if she knew a James Jones. She admitted she did. She was extensively questioned on cross-examination, redirect examination, re-cross-examination, and by the court at various times, with respect to whether she had sexual relations with Jones after she and Husband were separated in 1957.

The net result of all the inquiries was that she did not remember whether she had sexual intercourse with Jones. But when she was asked if she “had intercourse with any other person other than your husband since you separated,” she replied, “Sure, I have. I’m human, ain’t I? ” On the other hand, Jones was positive that she had intercourse with him. He testified that in July 1968 he was in Baltimore looking for a job and lived for a week in her home.

During that time he had sexual intercourse with her “in her front bedroom where I was sleeping . . . three times in that one night.” The chancellor found it significant that the adultery of the wife occurred well after the separation of the parties, and ⁴⁰³ did not contribute to the demise of the marriage. It troubled him, however, “in the sense that she is not blameless and she cannot get away from the adultery by saying I am only human, because that is persuasive to me, but the law is the law, and the law says you cannot commit adultery, but if you look at her adultery as compared to the other factors such as Mr. Flood’s adultery, persistence of it, the fact that he had a child, the fact he was brutal and sent her to a hospital, also this is uncontradicted, particularly as corroborated by Mrs. Davis who said he didn’t act as he should have, the fact that he stayed up all hours of the night, that he went with women. If you look at the test, it is ninety per cent his fault and ten per cent her fault.” He concluded that she was entitled to alimony. In doing so he relied on Flanagan .

We would have no difficulty