Clarke v. Clarke

• Decision Date: 14 January 1926
• Docket Number: 82.
• Citation: 131 A. 821,149 Md. 590
• Parties: CLARKE v. CLARKE.
• Court: Maryland Court of Appeals

131 A. 821

149 Md. 590

CLARKE v. CLARKE.

No. 82.

Court of Appeals of Maryland

January 14, 1926

Appeal from Circuit Court No. 2 of Baltimore City; Walter I Dawkins, Judge.

"To be officially reported."

Petition by Mae Clarke against Thomas A. Clarke for modification of decree of divorce. From an order sustaining demurrer to the petition, plaintiff appeals. Reversed, and remanded for further proceedings.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and WALSH, JJ.

Peter Peck, of Baltimore (Armstrong Thomas and E. B. Christensen both of Baltimore, on the brief), for appellant.

Warren N. Arnold and William F. Podlich, both of Baltimore, for appellee.

ADKINS J.

On January 31, 1924, the appellant was granted a divorce a mensa et thoro from the appellee. In the decree it was further provided that--

"The said plaintiff, Mae Clarke, is not entitled to receive any alimony from the said Thomas A. Clarke; and it is further ordered that the defendant, Thomas A. Clarke, pay the costs of this suit, as well as a fee of thirty-five dollars as a fee for her counsel, Peter Peck."

That is all that the record discloses of the divorce proceeding. On May 28, 1925, appellant filed a petition in the same cause in which she recited said decree, and alleged that at the time of the passage of the decree she was earning $11 weekly and the defendant from $105 to $130 monthly as a car inspector at Hillen Station, but for nearly a year has been an automobile salesman with an average weekly income of $60; that he has an apartment, employs a housekeeper, and owns an automobile; that she has worked faithfully to support herself, but in October, 1924, developed kidney trouble, and was forced to remain at home because of her great suffering, and compelled to lose from two to three days a week and finally to quit work and become destitute; that there is still due and unpaid by defendant the fee allowed her counsel; that she is in dire need of financial assistance.

The prayer of the petition is for a modification of the decree because of the great difference between the present circumstances of the parties and those which existed when the decree was passed, and for such other and further relief as her case may require. On the petition, an order nisi was passed requiring the defendant to show cause why a modification of the decree should not be granted.

Appellee demurred to the petition on the ground that the decree had become enrolled, and the court was without jurisdiction to change, alter, or modify a final decree granting a divorce a mensa et thoro more than a year after the same is granted by reason of any changed circumstance of the parties to said decree. The demurrer was sustained. This appeal is from that order.

As early as Wallingsford v. Wallingsford, 6 Har. & J. 485, alimony was defined as a maintenance afforded to the wife, where the husband refuses to give it, or where, by his improper conduct, he compels her to separate from him. See, also, McCaddin v. McCaddin, 116 Md. 567, 82 A. 554.

And the...