Bart v. Bart

• Court: Maryland Supreme Court
• Writing for the Court: [182 Md. 478]MARBURY, Justice.
• Citation: Bart v. Bart, 182 Md. 477, 35 A.2d 125 (Md. 1943)
• Decision Date: 15 December 1943
• Docket Number: 39.
• Parties: BART v. BART.

35 A.2d 125

182 Md. 477

BART v. BART.

No. 39.

Court of Appeals of Maryland

December 15, 1943

Appeal from Circuit Court of Baltimore City; Edwin T. Dickerson Judge.

Action by Lillian Bart against Benjamin Bart for alimony under decree of divorce. From a decree overruling defendant's demurrer to petition, defendant appeals.

Affirmed.

Richard H. Stevenson, of Baltimore, for appellant.

R. Lewis Bainder, of Baltimore, for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY GRASON, MELVIN, ADAMS, and BAILEY, JJ.

MARBURY, Justice.

The appellee was divorced a vinculo from the appellant by decree of the Circuit Court of Baltimore City, which was dated June 29, 1931, but does not appear to have been filed until August 31, 1931. The decree provided that the appellant should pay the sum of $5 a week to the appellee 'for a period of three years as alimony, through the Probation Department of the Supreme Bench, subject to the further order of this Court.' The custody of the infant daughter of the parties was awarded to the appellee, but it was provided that the infant should remain in the home of the parents of the appellant subject to the further order of the court.

On February 2, 1943, the appellee filed a petition in the divorce case stating that the appellant had paid the $5 a week for the period of three years. That since that time until April 1942, the appellee had been able to work and support herself, but that she was incapacitated by an operation in April 1942, and is now on public relief. She alleges that the appellant has a substantial income and asks that she be given alimony at the rate of $15 a week. Appellant demurred, the demurrer was overruled, and an appeal was taken to this court.

The appellant claims that the allowance by the court under the decree of divorce was not alimony, but was in effect a fixed sum, and therefore is not subject to any change. He further contends that the appellee is guilty of laches, inasmuch as she has waited more than three years after the end of the last payment fixed in the decree before asking that the case be reopened.

The law is well settled in this State that jurisdiction exists in the equity courts to increase or reduce the amount allowed as alimony as circumstances may justify. Emerson v. Emerson, 120 Md. 584, 87 A. 1033; Marshall v. Marshall, 162 Md. 116, 159 A. 260, 83 A.L.R. 1237. This is true, whether jurisdiction is specifically reserved or not. Winkel v. Winkel, 178 Md. 489, 15 A.2d 914. This, however, is not the case if the award is not alimony, but is a confirmation of an agreement of the parties, Dickey v. Dickey, 154 Md. 675, 141 A. 387, 58 A.L.R. 634. In the last mentioned case the long settled definition of permanent alimony is reaffirmed. It is described as 'a provision by the husband for the wife's support that continues only during their joint lives, or so long as they live separate and apart.'

The provision in the case before us is for a definite period which might have been longer or shorter than the joint lives of the parties. The court, however, states that it is awarded 'as alimony' and in the absence of any explanation we must accept the court's designation of its own award. It is true that the determination of what is or what is not alimony does not depend on what it is called (Emerson v. Emerson, 120 Md. 584, 87 A. 1033), but this Court can not undertake to decide that the award in the present case is not alimony without any facts whatever to go upon. The court below may have been confirming an agreement between the parties but there is nothing before us to show this. The award is not a lump sum award, and does not fix an amount which the husband has to pay the wife irrespective of his death or hers. The court specifically reserves the right to change the award. It cannot be determined from the face of the decree that it would be payable longer than the joint lives of the parties. There may have been special circumstances which induced the court to fix the three year period. It is probable there were, because it is an unusual provision. Nevertheless, we cannot determine, in the absence of evidence, that the award was something different from that which appears on its face. That is an award of alimony at a fixed rate for a limited period, and subject to the further order of the court, both as to the amount and as to all the other features, including the extension or limitation of the period within which it was to be paid.

The other contention made by the appellant is that there was laches on the part of the appellee in not filing her petition until nearly twelve years after the date of the decree, and nearly nine years after the expiration of the last payment provided for by it. He compares the situation...