Bushman v. Bushman

• Decision Date: 02 April 1929
• Docket Number: 43. [a1]
• Parties: BUSHMAN v. BUSHMAN.
• Court: Maryland Court of Appeals

145 A. 488

157 Md. 166

BUSHMAN v. BUSHMAN.

No. 43. ^[a1]

Court of Appeals of Maryland

April 2, 1929

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Suit for divorce by Josephine F. Bushman against Francis X Bushman. Decree for plaintiff was rendered, and thereafter she filed her petition praying that defendant be attached for contempt for failure to make payments according to the terms of the decree. Defendant's demurrer to the petition was overruled, and he appeals. Reversed and remanded, with leave to plaintiff to amend.

Argued before BOND, C.J., and URNER, ADKINS, DIGGES, PARKE, and SLOAN, JJ.

Mason P. Morfit, of Baltimore (Sappington & Morfit, of Baltimore on the brief), for appellant.

G Everett Siebert and Robert Biggs, both of Baltimore, for appellee.

PARKE J.

On July 26, 1918, Josephine F. Bushman, plaintiff, obtained an absolute divorce from Francis X. Bushman, defendant, in the circuit court for Baltimore county, sitting as a court of equity. Before the cause was submitted for decree, the parties agreed that it should not be necessary to take testimony in reference to counsel fees, alimony, and the custody of their five infant children, but that it would be proper and reasonable for a decree for absolute divorce to provide:

(1) That the defendant pay to the plaintiff the sum of $40,000 as alimony, in four equal installments, the first upon the passage of the decree, the second, within eight months, the third within fourteen months, and the fourth within twenty months thereafter; and all of the deferred payments to bear interest at the rate of 5 per centum per annum from the date of the decree and to be secured to the satisfaction of the solicitors for the plaintiff; and that the payments when made are to be in full satisfaction and discharge for all claim for alimony and of any other claim of the plaintiff against the defendant; and that, after the signing of the decree, the plaintiff should have no further right, interest, or title in any property now, then, or thereafter belonging to the defendant.

(2) That custody of the five infant children be awarded the plaintiff, with the right of the defendant to have a special period of custody every year and to have children visit him at other times during the year, provided the aggregate length of these visits shall not exceed two weeks in any one year.

(3) That the defendant would furnish and equip for housekeeping purposes not more than eight rooms of a house to be selected and rented by the plaintiff as a home for herself and children; and that the title to this furniture and equipment should be in the plaintiff.

(4) That the defendant would pay the plaintiff the sum of $4,000 yearly for the maintenance and support of the children, and that he would also pay the tuition and expenses of the children at school, together with all bills for doctors, surgeons, medicines, or dentists, and that he should provide suitable clothing for said children during their minority or until they should respectively marry. The annual payment was payable in monthly installments, subject to an abatement of $700 whenever any of said children should attain the age of 25 years, marry, or cease to live with the plaintiff, and, when all of said children shall have become 25 years of age, or shall have married, or shall have ceased to live with the plaintiff, then the whole annual payment of $4,000 to the plaintiff shall cease, subject, however, to the provision that the court retain jurisdiction for the purpose of entertaining and acting upon any petition which might thereafter be filed by the defendant asking for a diminution of the amount of payment herein provided for in the event of a change of circumstances whereby he would no longer be reasonably able to make payments to the extent provided for the children.

(5) That the defendant pay the plaintiff's solicitors the sum of $3,000 as counsel fees upon the passage of the decree, and all the costs.

This agreement was signed by both the plaintiff and the defendant on February 15, 1918, and was filed in the cause on July 20, 1918, the day the decree awarding an absolute divorce was passed and filed. The decree incorporated all the terms of the agreement with meticulous adherence to its language, except in these particulars: (1) The decree provided that the interest should run on the $40,000 from the date of the decree, and should be paid in equal monthly installments, which would be abated, from time to time, to the extent of the payments made; (2) the decree omitted the provisions that the deferred payments were to be secured to the satisfaction of the solicitors for the plaintiff and that the defendant furnish eight rooms of a house for the benefit of the plaintiff; and (3) the decree provided that the $4,000 for the support and maintenance of the children should be paid in monthly installments at the beginning of every month. Emerson v. Emerson, 120 Md. 584, 586, 587, 87 A. 1033.

The record discloses that the defendant partly performed the decree; but, on October 16, 1928, the plaintiff filed a petition in the cause charging that the defendant had "wilfully failed, refused and neglected to pay the said alimony, and to pay the moneys necessary to support his children, and is now in arrears through the said decree in a sum of approximately $60,000.00," and asked that a writ of attachment for contempt be issued against the said Francis X. Bushman requiring him to be and appear in court to show cause why he should not be punished for contempt. The court directed the writ to issue, and, upon being attached, the defendant demurred to the petition, but the court overruled the demurrer, and this appeal was then taken.

The demurrer raised the question whether the court had jurisdiction to enforce the payment of the sums awarded by the decree by an order committing the defendant to prison for contempt of court. The answer depends upon whether the decree is for alimony, because alimony does not constitute a debt within the meaning of that term in the constitutional prohibition of imprisonment for debt. Constitution of Maryland, art. 3, § 38; Dickey v. Dickey, 154 Md. 675, 681, 141 A. 387.

The original bill of complaint was for a divorce a mensa et thoro on the ground of cruelty, and the agreement mentioned was subject to the condition precedent that the plaintiff should amend the bill to one praying for an absolute divorce. This was done on February 25, 1918, and is a suspicious circumstance; but, in the absence of any other testimony, and the length of time since the passage of the decree, and its complete acceptance by the parties, the court could not now find on this single equivocal fact that the agreement was induced by the collusion of the parties, and should regard it as having been made in an effort to secure proper provisions for the maintenance of the wife, who was the innocent party, and for the support of the children because of the inevitable and imminent dissolution of the marital relation on account of an existing statutory basis for a divorce a vinculo matrimonii.

The decree makes separate and distinct provisions for the wife and for the children. The obligation of the father to support the infant offspring may be a factor in determining the amount of alimony which should properly be awarded the wife where she has been awarded their custody, but the father's primary liability to support the children is governed by different principles; and, although provisions for the support of the children and the maintenance of the wife are commonly embraced in the same decree, those for the support of the children are not alimony. There is no confusion of the husband's two liabilities in the present decree, since the support for the children and the maintenance for the wife are specifically and separately provided for in distinct paragraphs of the decree. Code, art. 16, § 39; Hood v. Hood, 138 Md. 355, 364, 365, 113 A. 895, 15 A. L. R. 774.

The failure of the defendant to pay as decreed the plaintiff the specified annual sum for the support of the children and to discharge his other pecuniary obligations in their regard is not a declination to pay alimony but a refusal to comply with those terms of the decree which imposed upon the defendant an obligation in the nature of a debt. So that part of the decree relating to the support of the children is within the protection of the constitutional inhibition against imprisonment for debt, and obedience to this part of the decree cannot be enforced by imprisonment for contempt of court.

The remaining inquiry is whether the provisions of the decree for the benefit of the wife are alimony. Aside from the right of the plaintiff to an absolute divorce, the decree declared that it is based upon the agreement of the parties, and the assent in open court of the defendant. Accordingly, it was adjudged that the defendant pay unto the plaintiff as...