Spear v. Spear

Digges, J., delivered the opinion of the Court. The question for determination on this appeal presents little difficulty, because in our opinion the recent case of Dickey v. Dickey, 154 Md. 675 , is decisive. The facts are that in March, 1926, the appellee filed a bill for absolute divorce from the appellant on the ground of abandonment and desertion. The prayers were for a divorce a vinculo matrimonii, care and custody of the minor child, and permanent alimony for the support of herself and said child.

Prior to the answer of the defendant in that case (appellant here), the parties filed an agreement in court wherein it was stipulated that its terms and conditions should be embodied in and become part of a decree, with the permission of the court; the terms being, first, that the husband shall pay to the wife “as permanent alimony, the sum of $1,200 per annum, to be paid in equal monthly instalments, the first instalment to be paid on the day of the signing of the decree in this cause, and the said payments are to continue on the same day of each succeeding calendar month for the period of the plaintiff’s life”; second, that the wife should have the care and custody of the minor child until he attained his majority. The husband subsequently filed an answer, and thereafter the chancellor passed the following decree: “It is thereupon this 22nd day of April, A. D. 1926, by the Circuit Court of Baltimore City, adjudged, ordered and decreed, that ⁶⁷⁴ the said Helene M. Spear, the above named complainant, be and she is hereby divorced a vinculo matrimonii from the defendant, the said Tyler - W. Spear. And it is further ordered that said complainant shall have the guardianship and custody of Robert W. Spear, the minor child of the parties in the proceedings mentioned; and that said defendant shall pay said complainant the sum of one ($100.00) hundred dollars per month, accounting' from the date of this decree, as permanent alimony and for the support and maintenance of said child, said payments to continue for the period of said complainant’s life.” Under'the terms of this decree, the first payment to the wife for the support of herself and child was April 22nd, 1926. Since that time the payments have been made and accepted in accordance therewith.

On September 18th, 1929, the husband filed his petition setting forth the passage of the former decree, and alleging that since its passage his former wife had remarried, that the petitioner is willing to suport his child, but feels that it is an injustice to require him to continue to contribute anything towards the support of his wife, and alleging his willingness to pay $50 per month for the support of the child, but praying the court to pass an order modifying the decree so that the petitioner will be required to support his said minor ■child only. The answer of the complainant in the original divorce proceeding admits the passage of the decree as set out in the petition, but alleges that the $100 per month, payable to her under its terms, was awarded by the court under and by virtue of the terms of the agreement of April-3rd, 1926, heretofore mentioned. She admits her remarriage. The chancellor passed an order or decree denying the relief prayed and dismissing the petition.

The appeal is from that action. The correct decision of the question involved depends upon whether the original decree in the divorce proceeding was a decree for alimony, or was an incorporation of the agreement between the parties. If its terms adopted by the chancellor were an award of alimony, as that is defined in the ⁶⁷⁵ settled law of the state, the remarriage of the wife would extinguish the obligation of the husband to make payment subsequent to the remarriage. Wallingsford v. Wallingsford, 6 H. & J. 485; Dickey v. Dickey, supra, and eases therein cited.

If, however, the terms of the decree took the award out of the category of alimony and were