Wallace v. Wallace

MacDaniel, J., delivered the opinion of the Court. This is an appeal from a Decree entered October 24,1979, in the Circuit Court for Montgomery County. Appellant Mark Wallace had filed exceptions to the Report and Recommendation of the Domestic Relations Master. On October 10, 1979, the Court, sitting in equity, entered an Opinion and Order denying the exceptions.

The October 24th Decree contained the following provisions, among others: 1. Appellant was ordered to pay $300 per month to appellee Ellen M. Wallace as permanent alimony, from June 1, 1979. 2. Appellant was found delinquent in payment of alimony pendente lite; the arrearage was $4,825. 3. Judgment was entered against appellant for the $4,825 arrearage. 4.

Appellant was ordered to pay $150 per month to liquidate the alimony pendente lite arrearage. 5. Appellant was ordered to pay $956.34 suit money and court costs. 6. Appellant was ordered to pay $4,000 as a contribution for attorney’s fees incurred by appellee and the parties’ minor children. Appellant presents the following questions for decision: I. Did the chancellor err in awarding alimony to an adulterous spouse?

II

Did the chancellor improperly fix the amount of alimony payable to appellee? ²¹⁵ III. Did the chancellor err in awarding counsel fees and costs to appellee, and in awarding her a judgment against him for arrearages in pendente lite alimony? We find no error in the chancellor’s Decree, and so shall affirm. The relevant facts are undisputed.

The parties were married in New York City in 1967. They moved to Maryland, where appellant began to practice dentistry. Two children were born of the marriage, in 1971 and 1974. In December 1975 appellant hired Janet Honeycutt (the present Mrs. Wallace) as a dental assistant or secretary.

In March 1976, without appellee’s consent, appellant left the marital home. In late April or early May he began an adulterous relationship with his present wife. Also in May 1976, appellee committed adultery with one Norman Fox. It is clear however that there was no evidence of adultery by either party prior to their separation.

On March 21,1977, appellee filed suit in the Circuit Court for Montgomery County to obtain a divorce a mensa et thoro, custody of her children, child support and alimony. The court entered an Order on September 22, 1977, granting appellee $550 per month alimony, custody and $150 child support per month per child, pendente lite. 1 After appellee filed her suit, appellant moved to Virginia, established residence and, on April 5, 1978, obtained a Decree of Divorce a vinculo matrimonii from the Circuit Court for Alexandria. The divorce was granted upon the ground that the parties had lived separate and apart, without interruption and without cohabitation for a period in excess of one year. Soon thereafter, upon advice of counsel, appellant ceased making payments of alimony pendente lite, and continued to pay for child support only.

In June 1978 appellee filed an amended Bill of Complaint seeking, inter alia, pendente lite and permanent alimony, ²¹⁶ counsel fees and suit money, a determination of property rights and an award of arrearages in unpaid alimony pendente lite. The amended bill did not itself seek a divorce of any type, but merely a declaration "that the only viable ground upon which the Decree of the Circuit Court of the City of Alexandria, Virginia, was entered, was that of having lived separate and apart, without cohabitation, for a period in excess of one year.” The Circuit Court referred the case to the Domestic Relations Master in August 1978. The Master conducted a hearing in December of that year, and, in June 1979, made his report to the court, which the court subsequently adopted in principal part, over appellant’s objections. I. Appellant first argues that the chancellor erred in awarding alimony in favor of appellee because the uncontroverted evidence established that appellee had engaged in adultery after the parties’ separation, but prior to the grant of an absolute divorce.

Appellant grounds this argument solely upon the Court of Appeals’ holding in Courson v. Courson, 213 Md. 183 (1957), which appellant states as follows: a spouse who is guilty of marital misconduct by committing adultery after the parties’ separation but prior to an absolute divorce is not entitled to alimony. Appellant points out that the chancellor was aware of the Courson opinion, but that he distinguished the case, and based his award upon two later opinions, Flanagan v. Flanagan, 270 Md. 335 (1973) and Flood v. Flood, 24 Md. App. 395 (1974). The chancellor reasons as follows: "The defendant would have this Court declare the plaintiff not entitled to an award of alimony due to her adulterous conduct after the separation of the parties. Although such a holding would be in accordance with the language and spirit of Courson v. Courson, 213 Md. 183 (1956), [sic] wherein adulterous conduct on the part of the wife after an a mensa divorce was found to terminate her right to ²¹⁷ alimony, this Court is swayed by the reasoning of the Courts in the more recent opinion in Flanagan v. Flanagan, 270 Md. 335 (1973) and Flood v. Flood, 24 Md. App. 400 [sic] (1974).

As was stated in Flood , at 400: Flanagan leaves unanswered what happens in a nonculpable divorce suit when the actions of the wife seeking alimony do not constitute the sole cause for the demise of the marriage, but there is fault on both sides which caused the separation of the parties, and the fault of the wife is an act of adultery. We can only read Flanagan as holding that in such circumstances the chancellor should consider the degree of blame as well as the relative guilt of the parties, and, in conjunction with other factors to be considered, decide upon a proper award. As quoted supra, Flanagan declares: "The greater degree of fault on the part of the wife demonstrated, the greater the need which she must show to entitle her to an award of alimony appropriate to the circumstances otherwise existing.” We note that the degree of fault on the part of the adulterous wife may be mitigated if the contributory fault of the husband is also an act of adultery.’ The defendant husband’s conduct in the case at hand was not as flagrant as that of the husband in Flood , nor was the wife’s conduct in the case at hand as comparatively innocuous as that of the wife in Flood (wherein the parties were separated for some twelve years before the wife engaged in an adulterous relationship); however, we nonetheless concur in the Master’s finding that the defendant husband must bear the lion’s share of fault in the case at hand.” Like the chancellor below, we too think Courson does not control the result in this case, but for reasons which are not ²¹⁸ adequately explained by our decision in Flood . We shall examine Courson, Flanagan and Flood in some detail.

In Courson the wife had obtained a divorce a mensa et thoro on the ground of desertion and was awarded alimony. Thereafter, she committed adultery, and the husband sought and received a divorce a vinculo matrimonii on this fault ground. On appeal however, the divorce was denied on the ground of recrimination. Courson v. Courson, 208 Md. 171 (1955).

Thereafter, the husband petitioned the court for modification of the alimony awarded his wife in the a mensa proceedings, arguing as grounds his wife’s adultery, proved in the a vinculo case. The lower court suspended the alimony subject to further order of the court, and the wife appealed. The Court of Appeals held that the wife was no longer entitled to alimony. Speaking for the Court, Judge Prescott stated: "... there is very respectable authority that holds that a wife’s adultery is a defense to her claim for maintenance, notwithstanding the husband was likewise guilty of the same offense____ In this State, a limited divorce is one from bed and board.

It grants unto the injured spouse the right to live separate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds. Alimony stems from the common law duty of a man to support his wife, and, in Maryland, has always been considered as outlined above. We hold the proper rule, supported by reason and authority, is that when a wife, who is living separate and apart from her husband due to his fault and who has obtained no more than a limited divorce from him, commits adultery, she forfeits her right to her husband’s support and the future payments of alimony.

We agree with the New Jersey Court of Chancery in the case of G......v. G......, 56 A. 736, 740 , when it said: 'Under a divorce a mensa et thoro the marriage relation still exists, and with it the duty of chastity. Such a divorce is not a license ²¹⁹ to the wife to indulge in sexual connection with another man, ***.’ Holding as we do, it afforded the wife no justification for complaint when the Chancellor suspended her alimony payments.” In Flanagan, supra, the husband obtained a divorce a vinculo matrimonii under the then-existing "no fault” provision of Article 16, § 24, of the Annotated Code of Maryland, on the ground that the parties had lived separate and apart, without interruption or cohabitation, for five years. 2 The wife sought alimony. Over the husband’s objections, the chancellor refused to consider testimony regarding the wife’s fault in the destruction of the marriage. The wife was awarded alimony and counsel fees, and the husband appealed.

The wife argued that, in view of the fact that the a vinculo divorce had been granted on a "no fault” ²²⁰ ground, "fault is not in any place an element of the case and therefore is not to be considered in awarding alimony.” The Court of Appeals disagreed: "A decision as to the proper award of alimony, while dependent upon the existence of grounds for divorce either a vinculo or a mensa, is separate and apart from that portion of the decree which grants the divorce.” 270 Md. at 338 . After making passing reference to Courson, the Court observed, at 339-40: "Throughout the years, our cases have said that when a wife’s fault precludes her from procuring a divorce she is prevented from obtaining alimony. Stein v. Stein, 251 Md. 300, 302 , 247 A.2d 266 (1968); Keys v. Keys, 251 Md. 247 , 247 A.2d 282 (1968) and the cases cited in each. This result was axiomatic as a spouse’s right to obtain a divorce, either a vinculo or a mensa, is a requirement for the obtention of alimony — ergo, no right to divorce, no right to alimony.

But those cases are inapplicable here because 'no fault divorce’ changes the predicament in which she would otherwise find herself, as either party regardless of fault can secure a divorce if he or she can meet the requirements of one of the authorized nonculpatory grounds. On the other hand, the previous opinions of this Court mentioned earlier, which establish the standards for fixing alimony in suits based on culpability, are applicable and make facile our determination that fault is one of the several factors to be considered in properly awarding alimony in a nonculpatory divorce as well. This is logically so and there is nothing in the public policy of Maryland as expressed in the statute to the contrary.” The Court then attempted to resolve "a more difficult decision”: the extent to which fault affects an award which accompanies a decree of divorce on no fault grounds. The Court stated, at 341-42: "What is an appropriate award of alimony is ²²¹ governed by the principles of equity regardless of the grounds for divorce.

Its resolution has always been one of weighing countervailing interests. While the parties’ economic circumstances are certainly of great importance, any of their conduct which contributed to the destruction of the marriage is also relevant to a determination of what is just. Willoughby v. Willoughby, 256 Md. at 593-94. As each factual situation is unique, it is obvious that the chancellor must be entrusted with wide discretion in awarding alimony.

This would include those cases in which he is required to consider the culpability of the parties by taking into account the circumstances leading up to that point in time when the couple, who have been joined in marriage to become one, separate and become two once more, as well as the fault which destroyed the home. However, in those suits in which the actions of the party seeking such a pecuniary award constitute the sole cause for the demise of the marriage, and this wrongdoing consists of acts which are either adultery or abandonment, then, except in rare instances where there exist extremely extenuating circumstances, the award of any alimony would be an abuse of discretion. We have designated adultery and abandonment not on a whim, but because these are the only direct culpatory deeds that the Legislature has selected by name which either authorize or can ripen into grounds for an a vinculo divorce thereby indicating that it considers them the more heinous of the acts which can terminate a marriage. But, if there exists separation causing culpability other than adultery or abandonment on one side, or fault on both sides which caused the separation of the parties, the chancellor should consider the parties’ degree of blame as well as their relative guilt in those cases where applicable and, in conjunction with the factors quoted earlier in this opinion, decide upon the proper award.” (Footnote omitted.) ²²² Finally, in Flood, supra, the husband’s adultery caused the demise of the marriage.

The parties were voluntarily separated, though neither obtained an a mensa divorce. Some eleven years later the wife committed adultery. A year or so after that, or twelve years after the parties’ separation, the husband obtained an a vinculo divorce upon the no fault ground that the parties had been living separate and apart for at least five years. The husband appealed an award of permanent alimony presenting the single question whether a court could award alimony to a wife in a nonculpatory divorce action when it is shown that she committed adultery during the period of separation.

This Court held that "in the facts and circumstances of the case before us, Wife did not forfeit her right to payment of alimony by her adulterous husband.” We first reviewed and compared Courson and Flanagan , and we stated, in Flood , at 24 Md. App. 399 -400: "Thus, Flanagan clearly concerned acts which caused or contributed to the separation of the parties, and which, therefore, were necessarily committed before the marriage’s demise. Courson concerned acts committed after the separation of the parties was a fait accompli. Under Flanagan , if it is the wife’s act which is the sole cause for the demise of the marriage, and that act is adultery, she is precluded from obtaining alimony 'except in rare instances where there exist extremely extenuating circumstances.’ Under Courson, if the wife commits adultery after the separation, she ipso facto loses all right to alimony; not even the mercy of 'extremely extenuating circumstances’ is indicated in Courson. So, to this point of comparison, it seems that an adulterous act causing the demise of a marriage is to be treated with somewhat more leniency than an adulterous act committed after the separation and not contributing to it.

But in either event, the general rule is that the wife is not entitled to alimony. Flanagan leaves unanswered what happens in a ²²³ nonculpable divorce suit when the actions of the wife seeking alimony do not constitute the sole cause for the demise of the marriage, but there is fault on both sides which caused the separation of the parties, and the fault of the wife is an act of adultery. We can only read Flanagan as holding that in such circumstances the chancellor should consider the degree of blame as well as the relative guilt of the parties, and, in conjunction with other factors to be considered, decide upon a proper award. As quoted supra, Flanagan declares: 'The greater degree of fault on the part of the wife demonstrated, the greater the need which she must show to entitle her to an award of alimony appropriate to the circumstances otherwise existing.’ We note that the degree of fault on the part of the adulterous wife may be mitigated if the contributory fault of the husband is also an act of adultery.

The holdings of Courson and Flanagan , read together, may not be disparate, but