Thomas v. Thomas

Wilner, J., delivered the opinion of the Court. We are presented here, for the first time, with a most interesting aspect of the law of divorce and alimony, one that involves not only the interpretation of a century-old statute but the even more ancient and arcane tenets of English ecclesiastical law as they have filtered down to us through the Maryland common law. What is the effect of a reconciliation and subsequent parting of the ways upon an award of alimony arising from a decree of divorce a mensa et thoro? Appellant commenced this proceeding on February 10, 1977, with the filing of a Bill in the Circuit Court for Prince George’s County seeking a divorce a mensa et thoro from appellee.

That action was docketed as DR 77-463. Acknowledging himself to be a citizen of Trinidad, but a permanent resident of the United States and a legal resident of Prince George’s County, he averred that appellee had, without just cause, deserted him and the marital abode on September 18, 1976. In addition to the divorce, he sought custody of the two adopted minor children of the parties who, at the time, were residing with him. Appellee answered this Bill on June 23,1977, denying the accusatory allegations and asserting that she then had custody of the children.

It appears that, also on June 23, appellant returned to Trinidad, having accepted employment there; and at some point appellee moved back into the ²⁵⁷ marital home. On July 7, 1977, appellee filed, in the same case, a cross-bill for divorce a mensa et thoro, or, in the alternative, for divorce a vinculo matrimonii, claiming desertion, cruelty, and adultery on appellant’s part. The allegation as to desertion was that appellant unjustly abandoned her on February 25, 1977. According to the certificate of service appended to it, a copy of the cross-bill was delivered to appellant’s counsel, and, when no answer to it was forthcoming within the 15 days allowed by law, appellee, on July 26, 1977, moved for a decree pro confesso.

On August 4, 1977, such a decree was entered, and the matter was referred to the Domestic Relations Master to take testimony in support of the cross-bill. On September 8,1977, the master conducted a hearing on the cross-bill. Appellant, of course, was not present, and indeed claims that he had no knowledge either of the decree pro confesso or the proceeding before the master. Based upon the evidence presented at the hearing, the master recommended, and on September 22, 1977, the court entered, a decree of divorce a mensa et thoro grounded upon appellant’s desertion occurring February 25, 1977.

The decree also awarded custody of the children to appellee, ordered appellant to pay to appellee the sum of $600 a month child support and $600 a month alimony, both accounting from September 8, 1977, and ordered him to contribute $1,800 toward appellee’s counsel fees. Appellant, still in Trinidad, remained blissfully unaware of all this. He returned to the United States on December 4, 1977, and, believing all prior proceedings to have been dismissed, resumed cohabitation with his legally estranged wife and his children at the marital abode. Unfortunately, this was to be but a temporary reunion.

On December 30, 1977, appellee, for reasons not appearing in the record, set fire to the marital home, forcing the family to seek other quarters. 1 They remained together, nevertheless, until ²⁵⁸ March 17, 1978, when appellant left, taking the children with him. Twelve days later — on March 29 — appellant, still unaware of the September decree, filed a new bill for divorce a mensa et thoro (docketed as DR 78-1149), charging appellee with cruelty and constructive desertion as of March 17, 1978. He averred general conduct on her part that was violent, humiliating, and degrading to him, and specifically mentioned her burning of the marital home and her physical abuse of the children, all of which made the marriage intolerable and forced him (and the children) to leave. Appellee responded with an answer denying the accusatory allegations and claiming, in a plea of res judicata, that all issues in the action had already been decided by the decree rendered on her cross-bill in the earlier action.

She responded also with a petition filed in the other case (DR 77-463) to hold appellant in contempt of court for failing to pay the alimony and child support ordered in the September decree. It was these pleadings that first actually apprised appellant of the subsisting divorce and his obligation for spousal and child support. Appellee’s contempt petition in DR 77-463 came before the master on July 7, 1978. At that hearing, appellant filed a written petition to modify the September, 1977, decree, asserting therein (1) that he was unaware that the decree had been passed, (2) that subsequent to the decree the parties had reconciled, and (3) that he adopted "the statements of fact contained in his Bill of Complaint filed in Equity No. DR 78-1149,” which he prayed be incorporated by reference.

He asked in his petition for custody of the children' and a striking of all sums "previously awarded for child support, alimony, and attorney fees....” We are told that, because appellee had no opportunity to answer this petition, it was not considered at that time by the master. Upon the evidence presented, however, the master concluded that (1) by stipulation of the parties, appellant should have custody of the children, (2) appellant not be adjudicated in contempt of court, and (3) "the arrears in child ²⁵⁹ support and alimony be assessed at zero” as of July 7, 1978. This last recommendation arose from the master’s finding (1) that when appellant went to Trinidad, he left $10,000 in a joint bank account, one-half of which was his, and that appellee spent the full amount for the support of herself and the children, and (2) that "by reconciling, [appellant’s] obligation to pay child support and alimony to [appellee] terminated.” Appellee excepted to the recommendation as to arrearage, asserting that the master erred in concluding that "the parties’ temporary reconciliation rendered this Courts’ [sic] decree a nullity ...” and in recommending that no arrearage in alimony be assessed. She asked that the court enforce the provision in the decree for alimony and remand the matter back to the master to assess alimony arrearages based upon the validity of the subsisting decree.

On December 7,1978, the court filed an opinion and order agreeing in part and disagreeing in part with what the master had done. It agreed that the obligation for alimony had terminated, or been suspended, during the period of the reconciliation, but not before and not after. There was little dispute as to the accrual of alimony during the three-month period prior to the reconciliation; appellant’s only defense as to that was that the $3,600 accrual for that period was offset by his share of the bank account expended by appellee. As to the reconciliation period itself, the court seemed to draw upon two theories: first, that, as a matter of law, alimony actually ceases during such a period; and, second, that a reconciliation constitutes "a substantial change in circumstances justifying modification.” Neither theory, however, was applied to the period following the second break-up in March, 1978.

As to that, the court concluded that a "reconciliation alone is not a sufficient change in circumstance to permit modification of the original decree so that no future alimony was required of [appellant].” Upon this analysis, the court found an arrearage of alimony and child support for the pre-reconciliation period of $3,600, no arrearage for the period of reconciliation, and an alimony arrearage of $2,200 for the nearly four-month ²⁶⁰ period between the second separation and the master’s hearing. This total of $5,800 exceeded appellant’s $5,000 share of the bank account. The court thereupon remanded the case to the master "for further hearing and assessment of alimony arrearages, in accordance with this opinion.” On remand, the master held another evidentiary hearing and considered the matters at issue as of then (December 21, 1978). In his second report, he first noted his disagreement with the court’s conclusion that alimony did not terminate by reason of the reconciliation; but he proceeded nevertheless in accordance with that determination.

As to the period preceding the reconciliation, he found a gross arrearage of $3,400 ($1,700 alimony and $1,700 child support). 2 Against that he applied appellant’s $5,000 share of the bank account, $2,500 of which he allocated to alimony and $2,500 to child support. That left an $800 credit, as to each, in appellant’s favor. "Assuming, without finding, that [appellee] is entitled to alimony after the 17th day of March, 1978,” the master found an accrual of alimony in the amount of $5,480 for that period ($600 a month for the nine months, four days to the date of the second hearing). Deducting the $800 credit left over from the bank account, he found a net accrual of $4,680.

Finding, however, that appellant was fully justified in leaving the home in March by reason of appellee’s conduct (which he concluded amounted to a constructive desertion), the master recommended that no arrearage be assessed and that the decree be amended to terminate alimony payments from and after March 17, 1978. Once again appellee filed exceptions, contending, among other things, that the master erred in finding a constructive desertion by appellee and that he erred as well in recommending that no arrearage be assessed. Once again, the court agreed. It concluded that, as the case had been remanded to the master solely to calculate an arrearage, the master exceeded the scope of his authority in concluding ²⁶¹ that appellee was guilty of a constructive desertion and that he therefore erred in considering such desertion as a basis for recommending no assessment of arrearage.

Accordingly, although the court accepted the master’s mathematics, it rejected his recommendation, and, on May 29,1980, decreed an arrearage of $4,680. In this appeal, appellant claims that the court erred in both its conclusions. He asserts that the issue of appellee’s conduct, as raised in his petition to modify the original decree, was properly before the master, and that as a matter of law the reconciliation served to terminate his obligation for alimony. Because we agree with his latter contention, we shall find it unnecessary to consider the former.

As has been pointed out on a number of occasions, although our law of divorce and alimony was generally derived from the English experience, it did not come to us through the English common law. See Kapneck v. Kapneck, 31 Md. App. 410 (1976), cert. den. 278 Md. 739 . The English practice was described by the Court of Appeals in Courson v. Courson, 213 Md. 183, 185 (1957): "From the time of Foliamb’s case (44 Eliz.), 3 Salk. 138, (about 1602) until the divorce act of 20 and 21 Viet. ch. 85 (about 1857), no absolute divorce could be judicially granted in England. The only legal separation recognized was a divorce from bed and board upon a decree of the Ecclesiastical Court.

These Courts, as an incident to the decree, granted alimony, temporary or permanent, but only as a part of the decree a mensa et thoro. Alimony, therefore, under the English law had no independent existence, and no Court, not even the Ecclesiastical, could grant alimony when it was the only relief sought.” As the Court further pointed out in Courson , the Maryland practice was patterned only partly upon the English. Until 1841, the granting of an absolute divorce remained exclusively a legislative prerogative and was ²⁶² effected by Act of the General Assembly. 3 Because there were no ecclesiastical courts here, however, jurisdiction over actions for divorce a mensa et thoro and attendant claims for alimony was assumed by the High Court of Chancery. See Crane v. Meginnis, 1 G. & J. 463 , 473 et seq.

(1829). In point of fact, however, the chancery court actually assumed a somewhat broader jurisdiction than that reposed in the English ecclesiastical courts. As noted in Courson and in Emerson v. Emerson, 120 Md. 584 (1913), the ecclesiastical courts awarded alimony only as part of a decree of divorce a mensa et thoro; there was no separate action permitted just for alimony. See 2 Bishop on Marriage and Divorce, §§ 351, 352 (4th ed. 1864).

Yet it appears that from a very early time, the Maryland chancery court presupposed and occasionally exercised the authority to award alimony where no divorce was granted, and indeed where an a mensa divorce was not even sought. See, for example, Lynthecumb’s Case (1738), Scott’s Case (1747), and Govane’s Case (1752) noted in Helms v. Franciscus, 2 Bland. 544, 565 et seq., note (f) (1830); also Hewitt v. Hewitt, 1 Bland. 100 (1826); Jamison v. Jamison, 4 Md. Ch. 289 (1847); Galwith v. Galwith (1689), reported in 4 H. & McH. 477 . The precise authority for such a practice, at least in Provincial times, was questionable, as it cannot be said to have emanated from the ecclesiastical law or practice. It appears that the authority was simply assumed as part of inherent chancery jurisdiction.

As the Court observed in Stewart v. Stewart, 105 Md. 297, 300 (1907): "From a period before the Revolution ... the Court of Chancery in this State had full jurisdiction in cases of alimony though no divorce had been decreed or was asked for, and though the case made by the bill and proof, would not, according to the Ecclesiastical Courts in England, entitle her to a divorce a mensa et thoro.” ²⁶³ See also 2 Bishop, §§ 355, 356; Taylor v. Taylor, 108 Md. 129 (1908). By Acts of 1777, ch. 12, an Act generally regulating marriage, the General Assembly confirmed the authority of the chancery courts over actions for alimony; but it did so in a curious way. Section 14 of that Act empowered the chancellor to hear and determine "all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there.” This law, with but occasional changes in style, remains on the books as Courts article, § 3-603, and governs this case in its present posture. 4 It is arguable, of course, that by describing the chancellor’s jurisdiction over alimony requests in the context of the ecclesiastical practice, the Legislature intended to restrict that jurisdiction to cases where an a mensa decree was awarded; but the statute was not interpreted in that manner. Instead, it has been viewed as merely putting the legislative imprimatur on the practice theretofore followed by the chancery court.

See Jamison v. Jamison, supra, 4 Md. Ch. 289; Wallingsford v. Wallingsford, 6 H. & J. 485, 488 (1825); Wright v. Wright, 2 Md. 429, 450 (1852); Dunnock v. Dunnock, 3 Md. Ch. 140, 143 (1852). Cf. Crane v. Meginnis, supra, 1 G. & J. 463 . By Acts of 1841, ch. 262, the General Assembly first conferred statutory jurisdiction over divorce actions on the equity courts.

The Act set forth the grounds cognizable for a vinculo and a mensa divorces, confirmed the preexisting authority of equity over the latter, and, for the first time, expanded that authority to include the former. Section 3 provided that "in all cases where a divorce is decreed, the ²⁶⁴ court passing the same shall have full power to award alimony to the wife....” The effect of that last provision was, for a time, uncertain. In Dunnock v. Dunnock, supra, 3 Md. Ch. 140 , Chancellor Johnson concluded that it did not change the ability of the equity court to award alimony independent of a divorce; and in Jamison v. Jamison, supra, 4 Md. Ch. 289, he seemed to conclude that alimony could be granted even if grounds for a divorce were not shown. The Court of Appeals made clear that that was not the case, however, in Outlaw v. Outlaw, 118 Md. 498 (1912).

It there adopted the principle laid down by Chancellor Bland in Helms v. Franciscus, supra, 2 Bland. 544, that the court "can not allow itself to receive any matter as a sufficient ground for granting alimony alone, which would not be a sufficient foundation in England for granting a divorce a mensa et thoro together with its incident alimony. ...” See 118 Md. at 503 ; 5 also Hoodv. Hood, 138 Md. 355 (1921); Walker v. Walker, 125 Md. 649 (1915). It thus appears that, although after 1841 the jurisdiction of the equity courts over divorce and alimony was a statutory one, it still remained tied in certain material respects to the English ecclesiastical practice. The rule was expressed thusly in Emerson v. Emerson, supra, 120 Md. at 590 : "Our understanding of alimony and its incidents has been borrowed from the decisions of the Ecclesiastical Courts, and this Court has, on several occasions, said that in divorce cases the Courts of Equity of this State do not sit in the exercise of their general equitable jurisdiction, but as a Divorce Court, and are governed by the rules and principles established in the Ecclesiastical Courts of England, so far as they are consistent with the Code.” (Emphasis supplied.) We turn, then, at least initially, back to the ecclesiastical law which, as we have noted, permitted alimony only as an ²⁶⁵ incident to an a mensa divorce.

The nature of an a mensa decree, under ecclesiastical law, was that it merely authorized the parties to live apart from one another; but once they chose not to do so, it had no further effect. A reconciliation, in other words, "of its own force, annulled] the sentence of separation.” Bishop, supra, § 729; also Poynter, Doctrine and Practice of the Ecclesiastical Courts in Doctors’ Commons on Various