Saltzgaver v. Saltzgaver

Melvin, J., delivered the opinion of the Court. The two appeals in this record are from orders of the Circuit Court for Carroll County, in equity, dated, respectively, July 12, 1943, and October 30, 1943, in a suit for divorce by the wife (appellant) on the grounds of abandonment and adultery. The first of these orders sustained a demurrer to her petition to rescind the decree of May 30, 1942, dismissing her bill of complaint and the second denied her application for suit money and counsel fee to prosecute this appeal. The record discloses a situation, both as to the facts and the law, which calls for a fresh interpretation of the doctrine of judicial discretion, as applied to this particular kind of a proceeding, and also of the doctrine of recrimination in divorce cases in Maryland. ⁶²⁶ The parties to this suit, after having lived together as husband and wife for twenty-four years, and having had four children born to them, separated in Frederick County, Maryland, on July 26, 1939, and five days later the wife (appellant) filed a suit in that county for a divorce a, mensa &t thoro on the ground of cruelty, or constructive abandonment.

The chancellor there, after a full hearing of the case, dismissed her bill of complaint under date of October 20, 1940, for lack of corroboration. When the appellant left the appellee on the date mentioned, she moved at once to Westminster, Carroll County, where she obtained employment and where, with her three minor children, she has resided ever since. Shortly after the separation the husband also moved to Carroll County in the course of his employment by the Western Maryland Railroad, and became a resident of Union Bridge. At that place, in or about July, 1940 (and three months prior to the chancellor’s decision of his wife’s then pending suit for divorce in Frederick County), he began to live in open adultery with an alleged housekeeper, by whom he had a child, born on April 17, 1941.

On January 9, 1942, the wife filed a bill for divorce a vinculo matrimonii alleging abandonment and also adultery. The husband in his answer denied the abandonment and neither admitted nor denied the allegation of adultery. At the taking of testimony on the bill and answer, however, the adultery was both proved and admitted, and it was shown that at the time it began the husband and wife had not been separated longer than twelve months. Notwithstanding these facts, the chancellor dismissed the wife’s bill of complaint.

His decree was on the sole ground that she had, with out justification, left her husband in July, 1939, and since that time had made no effort toward reconciliation, thus, he held, barring her own suit for divorce, in accordance with the doctrine of recrimination. This doctrine the chancellor invoked in his opinion by. relying upon authorities which deal with it generally and apply in some other jurisdictions, but which are directly at ⁶²⁷ variance with the law on the subject as plainly laid down and established by judicial decision in Maryland. This court has expressly and definitely decided heretofore that while the doctrine of recrimination in divorce cases is recognized in Maryland, it is with the limitation that, in a suit on the ground of adultery, the recrimination charged by the defendant against the plaintiff must be for a cause a vinculo matrimonii and not for one a mensa et thoro, merely. Pryor v. Pryor, 146 Md. 683 , 131 A. 47 ; Appeltofft v. Appeltofft, 147 Md. 603 , 128 A. 273 ; Williams v. Williams, 156 Md. 10, 13 , 142 A. 510 ; Jeppi v. Jeppi, 179 Md. 698 , 18 A. 2d 207 .

Other Maryland cases in support of this application of the doctrine are: Fisher v. Fisher, 93 Md. 298 , 300 48 A. 833 ; Rasch v. Rasch, 105 Md. 503, 507 , 66 A. 499 ; Green v. Green, 125 Md. 141, 143 , 93 A. 400 ; Foxwell v. Foxwell, 118 Md. 471 , 84 A. 552 . The particular language used by this court as the basis of its ruling is that adopted in the Appeltofft case, supra [ 147 Md. 603 , 128 A. 274 ], in its quotation from the Pryor case, supra, as follows: “By the great preponderance of authorities in this country, where the statutes authorize an absolute divorce or divorce a mensa et thoro, it is fully recognized that in a suit by one spouse for a cause entitling him or her to an absolute divorce, the other spouse cannot plead as a bar in recrimination a cause entitling him or her to a limited divorce.” In the absence of any statute on the subject, that language expresses clearly and indisputably the law of Maryland today on the doctrine of recrimination and is just as authoritative and binding on the courts within this jurisdiction as would be a plainly worded and valid statute. In the review of the Appeltofft case, supra, in 26 Col. L. Rev. 83, the reasons for the doctrine of recrimination are discussed and recognition given to the various interpretations of it in this country.

A majority of the States by statute make recrimination a defense in one form or another. In a very few the same result is in ⁶²⁸ directly accomplished by statutes which provide that a divorce may be granted only to the innocent or injured party, and in the remaining States recrimination is held to be a defense under the common law. As pointed out in the Review, “it is almost universally held in this country that any conduct constituing a statutory ground for an absolute divorce will bar an action for either an absolute or partial divorce.” The case of Green v. Green, 125 Md. 141 , 98 A. 400 , upon which the chancellor in the instant case seemed to rely principally, is cited as one of the authorities in support of this general statement. However, the case under review (Appeltofft) is the one given as expressive of the law in Maryland on the precise point involved in the case at bar, in these words: “Misconduct constituting ground only for a limited divorce is not a defense to an action for an absolute divorce.” See also Madden on Persons and Domestic Relations, 1931 Ed., 309; 27 C. J. S., Divorce, Sec. 68, and note 89, in which the authority of the Pryor and Appeltofft cases is likewise recognized as stating the law for Maryland.

It is anomalous that the Green case, supra, is cited in these other two cases as recognizing the limitations upon the doctrine as therein enunciated by the court. The chancellor undertakes to apply that case to the one at bar by using the quotations from Brown on Divorce, page 84, stating the rule to be as follows: “Where each of the parties has committed a matrimonial offense which is a cause of divorce, so that when one seeks for this remedy the other is equally entitled to the same, whether the offenses are the same or not, the court can grant the prayer of neither.” In that connection he also relies upon the language in the syllabus of the Green case, as follows: “Divorce is a remedy provided for an innocent party, and any misconduct on the part of the complainant which constitutes a ground for divorce will bar his suit, without reference to the nature of the offense of which he complains.” However, this very quotation, as shown by the body of the opinion, is taken from 14 ⁶²⁹ Cyc. 650, and has this very significant addition: “In some states, by statute or otherwise, a contrary ruling prevails and the offense must be of the same character.” Maryland happens to be one of those States in which a contrary rule does prevail, the doctrine being limited in so many words to the kind of offenses mentioned in the Pry or-Appeltofft-Williams-Jeppi cases, supra. Those, and not the Green case, are the ones which furnish the law governing this pending suit. The decision in that case was based on an entirely different situation from the one now before us.

Here the defendant (husband) is the one who committed adultery, while the wife at that time was, at most, guilty of abandonment for less than the statutory period entitling him to an absolute divorce. There the husband was suing for divorce on the ground of his wife’s abandonment for over five years. It was brought out by the court examiner in taking the testimony that the husband had been guilty of adultery since his wife had been away from him, and this was held to constitute a bar in recrimination to his obtaining a divorce. Adultery was a bar in the Ecclesiastical Courts of England, and has been universally so held ever since, regardless of whether the action was for either an absolute or a partial divorce.

That is what the Green case decided and nothing more. To the same effect is the statement in Nelson on Divorce and Separation, 1895 Ed., Sec. 429, Vol. 2; Bishop on Marriage, Divorce and Separation, 1891 Ed., Sec. 350; Brown on Divorce, page 84; Stewart on Marriage and Divorce, 1884 Ed., Sec. 314. The distinction between these statements of the general rule, non-applicable here, and the statement of the limitations upon the rule, which must control the decisions in Maryland in this kind of a case, is too plain to require further comment. This being the settled law in Maryland, it would not be within the sphere of discretion of a court in this jurisdiction to fail to apply it to any state of facts which shows a case for divorce a vinculo for the plaintiff and one against her, in recrimination, for divorce a ⁶³⁰ mensa, only.

That is precisely the case here. A petition to strike out a decree dismissing a plaintiff’s suit under such circumstances would come directly within the decisions of this court in another line of cases in which the matter of procedure is involved. The facts on this phase of the instant case are that the chancellor entered on June 2, 1942, a decree dismissing plaintiff’s bill of complaint, and on the following June 20th denied her petition for a rehearing. Under date of May 10, 1943, the plaintiff filed her petition to strike out the decree of June 2, 1942, in which — after pointing out that her charge of adultery had been both proved and admitted as of a time (July, 1940) when the defendant was not entitled to even sue for an absolute divorce on any ground recognizable by the law of this State — the main allegations are: “(3) That at the time said decree was passed in this case and for several months thereafter, the plaintiff was physically incapacitated and under the care of a doctor, was in a confused and bewildered, extremely nervous and highly disturbed state of mind, and she had no means at that time to carry this case to the Court of Appeals, the costs and expense of which she would be obliged to pay as it seemed to her then, and although she was advised to do so by her counsel she was in no satisfactory physical or mental condition to make an intelligent decision on that rather technical and complicated subject; in consequence thereof she inadvertently allowed the time for ordering an appeal to expire without taking that action and she is now most inequitably left without any remedy or relief whatsoever except through this petition to your Honors to strike out the decree passed as aforesaid in the above entitled cause; (4) That the circumstances in this case are such as should satisfy the Court, in the exercise of a sound discretion, that a situation exists here in which equity and good conscience, justice and enlightened public policy require ( that the said decree ought to be set aside.” ⁶³¹ The defendant demurred to this petition, stating as his main ground that the plaintiff had her remedy by appealing, in due course, from the original decree, but that she failed to avail herself of it.

In sustaining this demurrer, the chancellor reaffirmed his basic ruling that the plaintiff was barred from relief in her suit because of the doctrine of recrimination. On the immediate point of procedure he held that as the petition came after the decree had become enrolled, it was too late, and also that it was lacking in any of the elements necessary to bring it within the exceptions to the rule, hereinafter stated. However, it has been repeatedy held by this court that decrees may be set aside, after enrollment, in certain classes of cases and that this may be accomplished by petition filed in the same case. The facts and the law of the instant case clearly bring it within the purview of such ruling.

As stated in Foxwell v. Foxwell, 122 Md. 263, 273 , 89 A. 494 , 496: “The general rule undoubtedly is that after the enrollment of a decree in chancery, in the absence of fraud, surprise, or irregularity in its procurement, a substantial error in it will not be corrected or a hearing of the case granted upon a mere petition, a bill of review or an original bill for fraud being the appropriate form of proceeding in such cases. * * * “But to this general rule there are certain well-defined exceptions which are equally well established, where the procedure may be by petition. These are in cases not heard on their merits, and in which it is alleged that the decree was entered by mistake or surprise, or under such circumstances as shall satisfy the court, in the exercise of a sound discretion, that the enrollment ought to be discharged and the decree set aside.” Primrose v. Wright, 102 Md. 105 , 62 A. 238 ; Herbert v. Rowles, 30 Md. 271, 278 ; First Nat. Bank v. Eccleston, 48 Md. 145, 155 ; Pfeaff v. Jones, 50 Md. 263 ; Gechter v. Gechter, 51 Md. 187 ; Patterson v. Preston, 51 Md. 190 ; Downes v. Friel, 57 Md. 531, 533 . ⁶³² To the authorities above cited are to be added those of Simms v. Simms, 178 Md. 350, 351 , 13 A. 2d 326 ; Wyahllyeth v. Wyahllyeth, 178 Md. 417 , 13 A. 2d 551 ; Bailey v. Bailey, 181 Md. 385 , 30 A. 2d 249 ; and also the very recent case of Green et al. v. Green et al., 182 Md. 571 , 35 A. 2d 238, 240 , decided by this court on January 13, 1944. In the case last cited this court, reversing the chancellor who had sustained a demurrer to the petition .to rescind, ruled that this petition should have been granted even though the petition was filed more than thirty days after passage of the order.

The ground of this court’s ruling there was the first exception to the general rule above quoted, namely: “The case was not heard on its merits.” See also First National Bank v. Eccleston, 48 Md. 145 . Authority for invoking exception number two, “where the decree was entered by mistake or surprise,” is to be found and