Outlaw v. Outlaw

Briscoe, J., delivered the opinion of the Court. The Bill in this case was filed by Mrs. Laura F. Outlaw against her husband praying for the custody and guardianship of her infant child, and for an award of permanent alimony. It- did not ask any relief by way of divorce, either a vinculo or mensa et thoro. The defendant, the appellant here, demurred to the entire bill as not setting forth a case which would justify a Court of Equity in granting the relief prayed, or any relief, averring that the allegations ⁵⁰⁰ were too general, indefinite and uncertain; that they were conclusions of law, rather than statements of facts.

The effect of filing a demurrer to the bill was, of course, to admit all facts properly alleged in the bill as constituting a ground for the relief sought. After a hearing had on the demurrer, the Circuit Court for Baltimore County in Equity, overruled the demurrer and required the defendant to answer. The order for the appeal names four orders as appealed from: one of December 15th, 1911, enjoining the defendant from interfering with the infant child of the iiarties or removing him from the State pending the adjudication of his custody; one of January 3rd, 1912, in regard to counsel fees and alimony pendente litej one of March 7th, 1912, overruling the demurrer to'the Bill of Complaint, and requiring the defendant to answer; and one of March' 23rd, 1912, also in regard to alimony pendente lite and counsel fees. Of these only the third is pressed in this Court, and the appeal as to the first, second and fourth was apparently waived.

But whether waived or not, none of these three orders are reviewable by this Court, not being final in their nature or decisive of any right of the parties. Hayward v. Hayward, 77 Md., unreported opinion. It was only urged in the argument of the case that there was error in the order appealed from of March 7th, 1912, for the reason that alimony was originally an incident of divorce, and that a complaint must set out as the basis for any decree of alimony, acts upon the part of the husband which would have been sufficient to sustain, if properly supported by proof, a decree for divorce. This argument, however, overlooks one essential difference between a proceeding for divorce, with alimony as an incident, and a proceeding for alimony only.

The power of the Courts to grant divorce is dependent entirely upon statute, and has no existence in the absence of statutory enactment. 'For a long time after the separation of this State from'England, divorces were obtainable, and ⁵⁰¹ obtainable only, through an Act- of General Assembly, and it was not until 184-1 that this power was conferred upon the Courts. The power of the Courts to award alimony, however, was first recognized and exercised under the Provincial Government as early as the case of Galwith v. Galwith, 4 H. & MeH. 477, decided in 1689, and that power so recognized as inherent in equity jurisdiction has since been continuously exercised in this State. Hewitt v. Hewitt, 1 Bland, 101 ; Fornshill v. Murray, 1 Bland, 479 ; Wallingsford v. Wallingsford, 6 H. & J. 485 ; Helms v. Franciscus, 2 Bland, 565 ; Dunnock v. Dunnock, 3 Md. Ch. 140 ; Jamison v. Jamison, 4 Md, Ch. 289; Wright v. Wright, 2 Md. 429 ; Stewart v. Stewart, 105 Md. 297 ; Taylor v. Taylor, 108 Md. 129 ; McCaddin v. McCaddin, 116 Md. 567 . Kor is the doctrine one which has been limited to Alaryland.

The authorities generally are collected in 2 Am. & Eng. Ency. 96; 1 Bishop on Marriages, Divorce and Separation, secs. 1403 and 1409; Browne on Divorce and Alimony, p. 269; Story’s Equity Jurisprudence, 13th Ed., sect. 1423a. . There is not, however, entire unanimity in the decisions as to the right of Courts of Equity to grant relief of alimony alone, in States where by statutory enactment it is made an incident to a proceeding for divorce, with a manifest tendency not to allow alimony only, upon the ground that the State having by law given a defined power to the Courts, they will not exercise any power not expressly conferred by the Statute. Nelson on Divorce and Separation, sec. 1000.

The real question is, can such relief be granted the wife without a divorce when the statute has provided that relief with divorce? Mr. Bishop in his work denies the jurisdiction of Equity Courts to grant this relief, but the jurisdiction and power is sustained by the Courts of Alabama, Arkansas, Colorado, Iowa, Kentucky, Alary]and, Mississippi, Korth Carolina, Uhode Island, South Carolina and Virginia, and Air. Kelson following these adjudications lays down the opposite rule from Air. Bishop. ⁵⁰² In this State the jurisdiction of the Court of Equity was made a subject of statutory enactment as early as 1 111. and by Chapter 12 of the Acts of that year it was provided, that “The Courts of Equity of this State shall and may hear and determine all causes for alimony in as full and as ample manner as such cases could be heard and determined by the laws of England in