Altman v. Altman

• Decision Date: 14 June 1977
• Docket Number: No. 1136,1136
• Citation: 36 Md.App. 538,373 A.2d 1296
• Parties: Coleman Parker ALTMAN v. Gisele ALTMAN.
• Court: Court of Special Appeals of Maryland

Page 538

36 Md.App. 538

373 A.2d 1296

Coleman Parker ALTMAN v. Gisele ALTMAN.

No. 1136.

Court of Special Appeals of Maryland.

June 14, 1977.

James M. Griffin, Kensington, with whom were Stedman Prescott, Jr., and Staley, Prescott & Ballman, P.A., Kensington, on the brief, for appellant.

Bryan Renehan, with whom were Jeffrey N. Greenblatt, Jackson Brodsky and Brodsky & Greenblatt, Rockville, on the brief, for appellee.

Argued before MOYLAN, DAVIDSON and LISS, JJ.

Liss, Judge.

The factual situation in this appeal is not disputed by either the appellant or the appellee. The parties were married in Virginia in 1959 and subsequently moved to Maryland which was their marital domicile for the next 11 years. No children were born as a result of the marriage. In September, 1975, the appellant left the marital abode for what he said was to be an extended vacation. Mrs. Altman, the appellee, was suffering from advanced multiple sclerosis and did not accompany him. The appellant's travels continued over a period of months and included trips to California, where he visited his daughter, an extended visit in the western national parks and a stay in Europe. He finally landed in Las Vegas, Nevada. On March 10, 1976, the appellant returned to Maryland and removed his personal belongings.

Mrs. Altman, not unreasonably, interpreted the appellant's odyssey as an indication that he intended to breakup the marriage. She filed a bill of complaint with a show cause order attached in the Circuit Court for Montgomery County in which she prayed the court to grant her a divorce a mensa et thoro and to award her alimony pendente lite and permanent alimony. She was able to secure personal service on the appellant in Laurel, Maryland, on March 24, 1976. The parties had been residing in a condominium apartment in Bethesda, Maryland, which was titled in the name of the appellant. On March 30, 1976, the wife secured an order enjoining the appellant from selling or leasing the condominium pending the disposition of the rights of the parties. Subsequently, the husband conveyed title to the condominium to his wife subject to an agreement on her part to assume the monthly mortgage payment. At the time of the conveyance the equity in the condominium was between $8,000 and $10,000. There is no dispute as to this conveyance except with regard to the question of what effect, if any, should have been given by the chancellor to its value in reaching his decision as to an appropriate amount of alimony.

On June 14, 1976, some two months after the commencement of the appellee's suit in Maryland, the appellant obtained a decree of divorce a vinculo matrimonii from the appellee in the State of Nevada. It is conceded that the appellant's action in Nevada was filed subsequent to that of Mrs. Altman's action in Maryland; that she was not personally served (being notified by mail) and did not appear in person or by counsel to contest the Nevada divorce. The a vinculo decree in Nevada made no provision for alimony or support for the wife.

The appellee continued to prosecute vigorously her suit in Maryland and on September 1, 1976, a hearing was held before a master of the Circuit Court of Montgomery County. The appellee appeared before the master; the appellant did not but was represented by counsel of record. The master filed a report in which he recommended an order providing for a monthly payment of $325 as alimony pendente lite to be paid by the appellant. No pendente lite order was issued because the case was heard on its merits shortly after the master's recommendation. Testimony was taken from the wife and her daughter by a previous marriage. Again the husband did not appear but was represented by counsel of record. After considering the testimony and legal arguments, the chancellor concluded that the Montgomery County Circuit Court had jurisdiction to award alimony to the wife and that she had made out a case for such award. He entered an order directing the husband to pay the sum of $350 per month as alimony to the wife and that he pay $500 as a contribution toward her counsel fee. It is from that order that this appeal is filed.

The appellant raises two questions to be decided:

I. Did the chancellor have the legal authority to issue an order directing the appellant to pay permanent alimony and counsel fees to the appellee when prior to the entry of that order the husband, appellant, had been granted a divorce a vinculo matrimonii in another state (the validity of which decree had not been challenged by the wife) and where it was concluded that the appellant had no real or personal property in the State of Maryland?

II. Was the chancellor's award of permanent alimony excessive?

I.

Those of us who have taken to our bosom that jealous mistress, the Law, have soon learned that the life of the law is not logic but experience. A blind and slavish imitation of the past for reasons which have long since lost their validity can only lead to stultification. If the law is to remain viable and responsive, it must be based upon reason; and when the reason for a law ceases, that law should also cease. The truth of that premise can be no more persuasively demonstrated than by the status of the law in this case.

Prior to 1969 the Maryland law was clear that a wife's right to support and counsel fees did not survive a valid dissolution of the marriage, i. e., Maryland subscribed to the unitary rule of divorce. In Staub v. Staub, 170 Md. 202, 183 A. 605 (1936), the Court of Appeals had before it a case in which the wife moved from Maryland to Arkansas where the court, acquiring jurisdiction by virtue of an order of publication against the husband, granted a decree of absolute divorce without any provision for alimony. Subsequently, the wife filed a petition for alimony in Maryland. The Court, not unmindful of a lack of uniformity in the decisions of other jurisdictions on this question of law, concluded that Maryland would continue to follow the unitary rule of divorce which says that a decree of divorce a vinculo in the absence of an award of alimony or a reservation of alimony amounted to final adjudication of the rights of the parties and terminated the wife's right to further adjudication or relief. Since alimony is allowable only as an incident to the status of marriage, the destruction of that status did not permit the survival of the right to alimony which is founded upon the common law obligation of a husband to support his wife. See Marshall v. Marshall, 162 Md. 116, 159 A. 260 (1932); Tabeling v. Tabeling, 157 Md 429, 146 A. 389 (1929); Emerson v. Ererson, 120 Md. 584, 87 A. 1033 (1913).

The first breezes of the winds of change evidenced themselves in the two cases of Johnson v. Johnson. In the first Johnson case, 199 Md. 329, 86 A.2d 520 (1952), the court had before it a factual situation in which the wife had obtained a decree in Maryland granting her a divorce a mensa et thoro and awarding her alimony and support money for their infant son. The husband then obtained a divorce a vinculo matrimonii from his wife in Florida in a proceeding in which his domicile in Florida was never questioned and in which the wife appeared and contested the case. The Florida decree contained a provision to the effect that nothing in the decree would be held or construed to relieve the husband in any manner from complying with the support and maintenance provisions of the a mensa decree previously granted by the Maryland court. In spite of that provision, the Court held that the power to award alimony and 'suit money' did not survive the dissolution of the marital relation. The Court declined to adopt the 'divisible divorce' doctrine promulgated by the United States Supreme Court in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, 1 A.L.R.2d 1412 (1948), aff'd, 296 N.Y. 308, 73 N.E.2d 113 (1947). It suggested that if a different result was desirable the Legislature was the proper instrument of change and that it 'must first change the Maryland law so that power to make and change maintenance and expense allowances shall survive divorce.' 199 Md. at 338-39, 86 A.2d at 524.

In Estin the Supreme Court had before it a case in which both husband and wife were domiciled in New York and the wife obtained a decree of separation and alimony in New York. Later the husband obtained a Nevada divorce in a proceeding in which the wife was notified constructively but entered no appearance. The Nevada decree made no provision for alimony and the husband subsequently stopped making payments. The wife sued in New York for the amount in arrears. The husband appeared and defended on the ground that the Nevada decree should be given full faith and credit by the State of New York. The New York Court of Appeals held that the divorce was valid but granted the wife judgment for the arrears of alimony on the theory that a support order can survive a subsequent divorce. The Supreme Court, speaking through Justice Douglas, held:

'The result in this situation is to make the divorce divisible-to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.' 334 U.S. at 549, 68 S.Ct. at 1218, 92 L.Ed. at 1569.

A year after the first Johnson case the parties were before the Court of Appeals again in Johnson v. Johnson, 202 Md. 547, 97 A.2d 330, 98 A.2d 276 (1953). That appeal considered the question of a release of stocks deposited with the Clerk of the Circuit Court No. 2 of Baltimore City to secure the payment of alimony to the wife. In reversing the trial court's refusal to release the stocks, the Court reaffirmed its prior holding that the Florida decree of divorce effectively dissolved the marriage and foreclosed the wife's right to claim alimony in the Maryland...