Kapneck v. Kapneck

Orth, C. J., delivered the opinion of the Court. This appeal calls for us to examine the authority of a court of equity to grant injunctive relief with respect to its jurisdiction as to divorce and alimony 1 and custody and support of a child. 2 The examination is to be made in the light of Maryland Rule BB 71, § c and a mandate of Courts Art. § 3-603 (a). Rule BB 71, § c reads: “An injunction in an action for divorce, alimony, support of wife f 3 l or child, custody of child or annulment of marriage shall not be governed by this Subtitle.” 4 The statutory mandate referred to declares: “The court shall hear and determine a case of alimony in as full and ample manner as such case could be heard and determined by the Ecclesiastical Courts of England.” On 11 June 1975 the Circuit Court for Montgomery County, sitting as a court of equity, issued an ex parte pendente lite injunction in an action pending before it whereby Rosa Maria Kapneck (Wife) sought a decree of ⁴¹² divorce from Philip R. Kapneck (Husband), alimony, custody and support of minor children, counsel fees and suit money. 5 On 11 June 1975 Wife filed a verified motion for an order enjoining Husband “from harassing [Wife] and the minor children of the parties.. .See Rule 370, § a 4. The motion set out in detail grounds for the requested order.

It was asserted that the house in which the parties lived, and all personal property therein except Husband’s clothing and personal effects were the property of Wife. 6 The same day the chancellor “upon consideration of the verified motion of [Wife], Exhibits l-6[ 7 ] and the points and authorities in support thereof, and the record herein,” issued an ex parte pendente lite injunction. Husband was enjoined from entering the home without written permission of Wife, from conversing with her by telephone, from threatening her, from touching or assaulting her, and from communicating with her concerning the divorce action except through his attorney. Husband could move for a modification of the order on 10 days notice. On 24 June, Husband moved to vacate and dissolve the injunction and Wife promptly opposed that motion.

The chancellor granted Husband’s motion: “Upon consideration of the Motion of [Husband] to Vacate and Dissolve Ex Parte Pendente Lite ⁴¹³ Injunction issued by this Court on June 11, 1975, and the Points and Authorities in support thereof, it is, by the Circuit Court for Montgomery County, Maryland, Sitting as a Court of Equity, this 11th day of July, 1975, ORDERED, that the operation of the Ex Parte Pendente Lite Injunction dated June 11, 1975, be and the same is hereby dissolved and vacated.” On 6 August 1975 Wife noted an appeal from the order of 11 July 1975. Courts Art. § 12-303 (c) (l). 8 Although “the Inhabitants of Maryland are entitled to the Common Law of England,” 9 the law of divorce did not come here by that means, because it had no common law foundation. W. T. Nelson, in his historical research for the original edition of his work on divorce and annulment, found that “save for the reign of Henry VIII, the church, in England, from a very remote period extending perhaps even before the reign of Edward the Confessor, kept a close watch upon matrimonial affairs upon the theory that marriage was a sacrament and that it had general control of all things pertaining to the good of the soul. To such extent as the ecclesiastical courts would grant any relief, they followed their conscience and religious tenets rather than precedents.

They kept records only as they saw fit, and their decisions were rarely reported.” 1 W. T. Nelson, Divorce and Annulment (2nd ed., 1945) § 1.01, n. 1, hereinafter cited as Nehon. The courts of common law and chancery saw fit to permit this situation to continue. “Not until 1809 was anything resembling a modern ‘divorce court,’ with decisions fairly consistently reported, set up in England; and that was still not a court of law or chancery, but one of the ⁴¹⁴ ecclesiastical courts specially designated for the purpose.” In England “[jJurisdiction of matrimonial affairs continued to be ecclesiastical until the establishment, in 1870, of the ‘probate, admiralty and divorce court,’ since which time the subject has been one of lay jurisdiction and handled in a manner similar to that with which we are familiar in most states of the Union.” The church did not recognize an absolute dissolution of an originally valid marriage. Thus it was that in England, and in the American colonies and early states, absolute divorces were obtainable only by act of parliament or of the legislature or equivalent legislative assembly. Church policy precluded the ecclesiastical courts from granting absolute divorces; they granted legal separations (divorces a mensa et thoro) and under certain circumstances declared marriages wholly void.

Some of the American colonies and states, including Maryland, followed this lead. 10 “From the earliest times in this State, divorces were granted by, and emanated from, the legislature. . . .” Courson v. Courson, 213 Md. 183, 186 (1957). By Acts 1841, ch. 262, 11 the legislature granted jurisdiction of all divorce actions to the courts of equity of this State. “It was thereafter held that these enactments did not preclude the legislature from granting divorces, Wright v. Wright, 2 Md. 429, 450 , but by Sec. 33 of Art. 3 of the Maryland Constitution, the legislature is now prohibited from so doing.” 12 Id. Unlike the granting of an absolute divorce, power to grant alimony has always been regarded as judicial, not legislative. “[A]n attempt by the legislature to grant alimony was held to be a judicial function and therefore unconstitutional. Crane v. Meginnis, 1 Gill & J. 463, 474 [1829].” Courson v. Courson, supra, at 186. “Hence, though determination of such matters [as compulsory support and ⁴¹⁵ the settlement of property rights between husband and wife] is now commonly incident to divorce proceedings, adjudications with respect thereto are ordinary functioning of the courts for which there is no difficulty in finding a proper historical and common-law background.” Nelson, § 1.01. “So, at the present time and for many years past in Maryland, the jurisdiction to hear and determine questions of divorces and alimony, both temporary and permanent, is, and has been, vested in the courts of equity in this State.” Courson v. Courson, supra, at 186. 13 As we have seen, the General Assembly declared in 1841 that jurisdiction of an action for divorce, alimony, or annulment of marriage was in a court of equity and the statute has survived as Courts Art. § 3-603 (a).

The Court of Appeals said in Murray v. Murray, 134 Md. 653, 657 (1919): “It is by statute that the jurisdiction exercised by the courts of equity in this State, in divorce cases, is conferred upon them; which statute likewise limits and prescribes the jurisdiction so conferred.” Nelson elaborates on this as a general proposition. “The power of the courts over divorce suits is derived entirely from the statutes, and is wholly dependent thereon. For example, only such judgments may be entered as are authorized by statute, and all the legislative requirements must be fulfilled to give the court jurisdiction. Not only must the statutes be strictly complied with, but they are also, usually, rather strictly construed.” Nelson, § 1.02. Ordinarily, therefore, to the extent that the proceedings are governed by statutes particularly relating thereto, such statutes are controlling and whether the action is to be regarded as at law or in equity becomes immaterial. “In some states, statutes expressly classify divorce proceedings as equitable, or provide that they are to be governed by equity practice; in which event, of course, the statute is controlling, as the legislature unquestionably has power to place its own classification upon the proceedings.” Nelson, § 1.03.

Statutes in most states usually refer practice in divorce cases to equity practice or that in civil actions ⁴¹⁶ generally, 14 so that the extent to which practices of the English ecclesiastical courts might be resorted to by way of precedent is now rarely of practical interest. Nelson, § 1.05. Not so in Maryland, however. Courts Art. § 3-603 (a), after providing that a court of equity has jurisdiction in domestic matters, declares: “The court shall hear and determine a case of alimony in as full and ample manner as such case could be heard and determined by the Ecclesiastical Courts of England.” 15 Read literally, this may be construed as applying only to alimony.

The Court of Appeals, however, over a century ago, used this reference to the “Ecclesiastical Courts of England” to state that in Maryland divorce practice is founded on the practice of the ecclesiastical ⁴¹⁷ courts of England. “The court in such case sits, not in the exercise of its general and ordinary equitable jurisdiction, but as a Divorce Court; and must be governed by the rules and principles established in the Ecclesiastical Courts in England, wherein a similar jurisdiction has been exercised, so far as they are consistent with the provisions of the Code. * * * In respect to the mode in which Courts of Equity shall exercise jurisdiction in divorce cases, and the principles by which they are to be governed, the Code is silent. But from the nature of the jurisdiction itself, it has always been considered that the decisions of the English Ecclesiastical Courts, in similar cases, may properly be referred to as precedents; and they have uniformly been cited and relied on as safe and authoritative guides for the courts of this State in disposing of cases of this kind.” J. G. v. H. G., 33 Md. 401, 406-407 (1870). By 1926 the Court of Appeals, with respect to divorce cases, found it to be “well settled by our decisions that the rules of the ecclesiastical courts of England prevail in Maryland so far as they are consistent with the Code. Emerson v. Emerson, 120 Md. 584 .” Clarke v. Clarke, 149 Md. 590, 592 (1926).

This view was applied in resolving a question of alimony in Winkel v. Winkel, 178 Md. 489 (1940). The Court said, at 503: “The practice here is founded on the practice of the ecclesiastical courts of England, whence our procedure largely came. DeBlaquiere v. DeBlaquiere, (1830) 3 Hag. Ecc. 322, 162 Eng.

Reprint, 1173; Saunders v. Saunders, 1 Sw. & Tr. 72, 164 Eng. Reprint, 634; Kerr v. Kerr, (1897) 2 Q. B. Div. 439, 443; Covell v. Covell, (1872), L.R. 2P. & D. 411, 413, 414.” The rule was affirmed in Dougherty v. Dougherty, 187 Md. 21, 29 (1946), Lickle v. Boone, 187 Md. 579, 582 (1947) and Gold v. Gold, 191 Md. 533, 537 (1948), in each of which the Court said in substantially the same language that since the legislature conferred jurisdiction in all applications for divorce upon the courts of equity, “this Court has recognized the essential difference between a divorce suit and the ordinary equity case. In divorce proceedings the court sits, not in the exercise of its ordinary equity jurisdiction, but as a divorce court and is governed by the rules and principles established in the ⁴¹⁸ ecclesiastical courts in England so far as they are consistent with the provisions of the Maryland Code.” The injunction here was issued by the equity court in a divorce proceeding. Therefore, the court, not sitting in the exercise of its ordinary equity jurisdiction, but as a divorce court, was governed by the rules and principles established in the ecclesiastical courts of England so far as they were consistent with Maryland statutes.

The injunction enjoined Husband from doing five specific things. Of the specific acts enjoined, one concerned the trespass by Husband on the real property of Wife: “ORDERED that [Husband] be, and he hereby is, enjoined from entering or remaining upon any portion of the house or land owned by [Wife] located at 10101 Chapel Road, Potomac, Maryland, without the written permission of [Wife] first had and obtained .. . .” The remaining four specific acts enjoined concerned protection of Wife’s person and personal rights from crimes and torts: “FURTHER ORDERED that [Husband] be and he hereby is enjoined from attempting to carry on any telephone conversation with [Wife], ... from making any threats of any nature against [Wife], . . . from touching or offering to touch or assaulting or offering to assault [Wife], and . . . [from communicating] with [Wife] concerning the subject matter of this action except through his attorney of record.” Our attention has not been called to a Maryland statute authorizing the issuance of such an injunction by an equity court in a domestic relations action, and we find no such statute. Nor do we find that authority to issue injunctions was enjoyed by the ecclesiastical courts of England, except, perhaps, to “enjoin perpetual silence” upon a person holding out a marriage. 16 It is asserted in 2 J.P. Bishop, Marriage, ⁴¹⁹ Divorce and Separation § 462 (1891) under the heading “What has been the Influence of the Ecclesiastical Practice on Ours”: “The Injunction, — familiar in equity yet unknown in the common-law tribunals, may be resorted to in divorce cases by courts having equity powers. But there is no pretence that a mere common-law court could issue this process in a divorce litigation without the aid of a statute, since it is unknown in the ecclesiastical practice. ” (emphasis added) See 1 T.W. Waterman’s Eden on Law and Practice of Injunctions 171-172 (1852). 17 The equity court below, as we have found, was not sitting in the exercise of its general and ordinary equitable jurisdiction but as a divorce court, and therefore, as we have indicated, it was governed by the rules and principles established in the ecclesiastical courts of England.

It did not enjoy its usual equity powers. Since the ecclesiastical courts did not have the authority to issue an injunction like the one here, under the firmly established law of this State, neither did the court below. When the chancellor below dissolved the injunction, he did so “[u]pon consideration of the Motion of [Husband] . . . and the Points and Authorities in support thereof . . . .” Among other claims in his Motion, Husband contended: (1) “There is no statutory authorization for an Ex Parte Pendente Lite ⁴²⁰ Injunction in a divorce action and the Rules, in fact, preclude the entry of such an Injunction”; (2) “There is no general power for a Court of Equity to enter such an Injunction in a divorce action in accordance with Maryland Law”; (3) “[Wife] has provided no source from which a Court of Equity in a cause of action derives the powers to issue such an Injunction.” The first two claims made in the Motion went to the equity court sitting as a divorce court. As we have indicated, we agree that there is no statutory power or general power bestowed upon an equity court sitting in its judicially established special capacity as a divorce court which permits it to issue such an injunction.

In the light of this finding, we need not determine whether Rule BB 71, § c, which provides that the “Injunction” Subtitle shall not govern an injunction in an action for divorce, alimony, support of wife or child, custody of child or annulment of marriage,