Borchert v. Borchert

• Decision Date: 17 January 1946
• Docket Number: 44.
• Parties: BORCHERT v. BORCHERT.
• Court: Maryland Court of Appeals

45 A.2d 463

185 Md. 586

BORCHERT v. BORCHERT.

No. 44.

Court of Appeals of Maryland

January 17, 1946

Appeal from Circuit Court for Allegany County; William A. Huster Chief Judge, and Walter C. Caper, Judge.

Action for divorce by Mildred V. Borchert against Clarence A Borchert wherein the plaintiff filed a petition for modification of divorce decree. From adverse orders, Clarence A. Borchert appeals.

Reversed.

F. Brooke Whiting and D. Lindley Sloan, both of Cumberland (Linn Mapel Brannon, of Weston, W. Va., on the brief), for appellant.

Albert A. Doub, Jr., of Cumberland, and George Cochran Doub, of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY Chief Judge.

The appellee (wife) was divorced a vinculo matrimonii from the appellant (husband) by decree of the Circuit Court for Allegany County on November 5, 1929. By that decree the appellant was ordered to pay the appellee for the support of the minor son of the parties, Reginald Borchert, twenty-five dollars per month until the son reached the age of twenty-one years. The guardianship and custody of the son was given to the wife. The appellant was summoned in the divorce action by service on his attorneys, who accepted such service for him and entered their appearance in the case as his counsel.

On January 8, 1945 the appellee, after some preliminary proceedings which have no bearing on the issues now presented, filed her petition stating that shortly after the passage of the divorce decree, the son, Reginald, became afflicted with a serious and incurable malady that has permanently and wholly incapacitated him physically and mentally and his condition has progressively become worse so that for some time now he has been a helpless invalid. The petition further shows that the said son arrived at the age of 21 years on September 11, 1944 but that he continues under disability; that the appellee cannot properly provide for him and that the appellant is a man of comfortable means, living in West Virginia where he owns valuable property and receives a large income. The petition prays that the decree be amended to require appellant to pay a reasonable and adequate sum for the support of the son as long as he continues under disability. The court passed an order setting the petition for hearing, provided a copy of the petition and order be sent by registered mail to the appellant and his solicitors of record in the case.

Thereupon the present solicitors for appellant entered their appearance specially for him 'to resist the petition', and subsequently filed a demurrer to the petition, stating that it is filed by the defendant (appellant) by his 'solicitors by special appearance for the defendant'. This demurrer raises four grounds of objection; first, that appellant is a resident of West Virginia and is not subject to the jurisdiction and orders of the Maryland Court unless personally served; second, that any increase in the amount allowed by the decree would be in the nature of a decree in personam which could only be had after personal service; third, that counsel fees, prayed in the petition, could not be allowed because petitioner is no longer the wife of appellant and, fourth, that the appellant is no longer liable under the decree for the support of the son since he has attained the age of twenty-one years.

The demurrer was overruled April 12, 1945 and the husband required to answer, and an appeal was taken from this action, which constitutes the first appeal in this record. Thereafter, on a subsequent petition, to which an answer was filed by the defendant through his solicitors, no longer attempting to appear specially, the court passed an order on June 28, 1945 directing the husband to pay a counsel fee of $250 to the solicitor for appellee for his services in the trial below and to be rendered on the appeal here. An appeal was taken from this order, which is the second appeal in the record.

The appellant contends here in his brief that the decree has been fully performed and has expired, that this is an attempt to engraft what ought to be an original proceeding on a decree for divorce which has no relation to the subject matter of the present proceeding, that he is a nonresident and the court is without jurisdiction over him without personal service and that as this is not a divorce proceeding the court cannot require him to pay a counsel fee.

The jurisdictional question was not pressed in the argument and may be readily disposed of. We know of no practice which authorizes a special appearance for the purpose of filing a demurrer. And the pretense of a special appearance was abandoned when the defendant's answer was filed to the petition for counsel fee. The court had jurisdiction over the defendant in the original proceedings, and when his new counsel filed his demurrer and his answer to the counsel fee petition, he was again before the court. Having voluntarily appeared, he cannot be heard to say that the court is without jurisdiction over him.

We are not unmindful that the first appeal in this case is from an order overruling a demurrer to a petition. Under ordinary circumstances such an order is not a final one from which an appeal is allowed. Stockham v. Knollenberg, 133 Md. 337, 105 A. 305. But in this case the petition brings up facts occurring since the filing of the original bill and since the decree and raises a question not heretofore considered in the case. We think, therefore, that while it is called a petition, it is in reality in the nature of a supplementary bill of complaint. The demurrer is to the entire petition and, under a long line of decisions in this Court, an order overruling a demurrer to an entire bill of complaint is appealable. Chappell v. Funk, 57 Md. 465; Pressler v. Pressler, 134 Md. 243, 106 A. 686; Young v. Cockman,

182 Md. 246, 34 A.2d 428, 149 A.L.R. 1006. We will, therefore, consider the appeal.

There was no common law obligation to support adult, incompetent children; neither was there any to support infant children although an obligation, both moral and legal, was early recognized in this state. Addison vs. Bowie, 21 Bl. p. 626. The statute of 43rd Elizabeth, ch. 2, imposes upon fathers and others an obligation to support poor, old and impotent persons. This English statute, however, is not one of those in force in Maryland and we have no such similar statute governing the support of adult, incompetent children. We have, of course, a statute making a criminal offense the non-support of minor children, Code, Article 27, Section 89, Ch. 73, Acts of 1896 and we also have a statute making it a criminal offense for an adult child possessed of or able to earn sufficient means not to support a destitute parent. Code, Article 27, Sections 98, etc., Ch. 637, Acts of 1916. The nearest statutory approach to any requirement that a father shall be liable for the support of his incapacitated child is found in Code, Article 59, Lunatics and Insane, which provides for the commitment of insane people to state institutions and authorizes the County Commissioners of any County or Department of Welfare to investigate the financial condition of any person so committed 'and also the financial conditions of their relatives or other persons legally chargeable with their maintenance and support' in order to determine the ability of such people to pay. If such investigation results in a determination that such person shall be required to pay, then the County Commissioners are authorized to pass an order to that effect. The statute then says in Section 4, 'It is the intent of Sections 3, 4 and 5 that a husband may be liable for the support of a wife while an inmate of any such institution, a wife for a husband, a father or mother, or both for a son or daughter, and a son or daughter, or both, for a father or mother.'

In 1 Blackstone Commentaries, p. 449, it is said, 'No person is bound to provide a maintenance for his issue unless where the children are incompetent and unable to work, either through infancy, disease or accident, and then is only obliged to find them with necessaries * * *'. This statement is based upon the statute of Elizabeth above referred to. The doctrine of liability in a father to support an incapacitated adult child seems to have permeated the courts of this country, in many cases without any statutory enactment to support it. The obligation is set out in a great many cases, often in those judicial expressions known as obiter dicta. In some cases the basis of the liability is lack of emancipation. In others it is stated to be the moral duty and it is indicated that the legal duty follows the moral duty. However vague and unsatisfactory such statements are, it must be concluded, in view of the many decisions so holding, that there is now a tendency in this country, whether based upon local statutes or upon a modern judicial expansion of the common law, to recognize a duty imposed upon a parent to support his incapacitated child. Among the cases discussing the subject are Cromwell v Benjamin, Sup. 1863, 41 Barb., N.Y. 558; Alger v. Miller, 56 Barb. 227; Matter of Van Denburgh, 178 A.D. 237, 164 N.Y.S. 966; Brown v. Ramsay, Sup., 1860, 29 N.J.L. 117; Breuer v. Dowden, 207 Ky. 12, 268 S.W. 541, 42 A.L.R. 146; Crain v. Mallone, 130 Ky. 125, 113 S.W. 67, 22 L.R.A., N.S., 1165, 132 Am.St.Rep. 355; Rowell v. Town of Vershire, 62 Vt. 405, 19 A. 990, 8 L.R.A. 708; Schultz v. Western Farm Tractor Co., 111 Wash. 351, 190 P. 1007, 14 A.L.R. 514; Halsted v. Halsted, 228 A.D. 298, 239 N.Y.S. 422; Freestate v. Freestate, 244 Ill.App. 166; Rife v. Rife, 272 Ill.App. 404, 39 Am.Jur., 'Parent and Child', pars. 68 and 69, pp. 710 and 711, Plaster v. Plaster, 47 Ill....