Colburn v. Colburn, 173

• Decision Date: 08 March 1974
• Docket Number: No. 173,173
• Citation: 316 A.2d 283,20 Md.App. 346
• Parties: Marjorie B. S. COLBURN v. James B. COLBURN, Jr.
• Court: Court of Special Appeals of Maryland

Page 346

20 Md.App. 346

316 A.2d 283

Marjorie B. S. COLBURN v. James B. COLBURN, Jr.

No. 173.

Court of Special Appeals of Maryland.

March 8, 1974.

Theodore G. Bloom, Annapolis, with whom were Albert J. Goodman, Goodman & Bloom, Annapolis, on the brief, for appellant-cross-appellee.

Samuel Schenker, and Alan H. Legum, Annapolis, with whom was Natalie Zimmerman, Baltimore, on the brief, for appellee-cross-appellant.

Argued before ORTH, C. J., and POWERS and MOORE, JJ.

ORTH, Chief Judge.

This is the latest battle in the seemingly never ending war ¹ triggered by the 'desperate thing' ² the marriage of The decree of the Circuit Court for Anne Arundel County granting Wife a divorce a mensa et thoro, awarded her alimony in the amount of $650 a month and gave Husband custody of their mentally retarded son, with responsibility to support him, but with visitation rights in Wife. ³ It was shortly after this decree that Husband moved to Florida and established residency. He fell delinquent in the payment of alimony. Wife filed a petition requesting the court to cite Husband in contempt for failure to make the required alimony payments and subsequently requested an adjustment of her visitation rights alleging that Husband had 'unreasonably, arbitrarily and capriciously made it difficult . . . to exercise such visitation rights on many occasions and impossible on some occasions.' An order modifying Wife's visitation rights issued from the Circuit Court for Anne Arundel County on 15 December 1971 and was amended on 5 January 1972. ⁴ Upon the grant of the divorce in Florida, Husband terminated all alimony The motions were brought on for hearing on 10 December 1972 and Wife presented her testimony. The court continued the hearing to permit Husband to appear with a current accounting as demonstrative of a 'change in circumstances' sufficient to warrant a reduction in his alimony obligation. The hearing resumed on 16 January 1973. Husband presented his testimony, and the solicitors for Husband and Wife argued the matter. On 25 January 1973 the court filed its decree which:

                Marjorie B. S. Colburn (Wife) and James B. Colburn, Jr.  (Husband) proved to be.  Their present marital status is that Wife, after extended proceedings (suit commenced 20 January 1970), was granted a divorce a mensa et thoro by decree of the Circuit Court for Anne Arundel County, filed 21 April 1971, which we affirmed on appeal, Colburn v. Colburn, 15 Md.App. 503, 292 A.2d 121, and on 14 December 1971, Husband obtained a divorce a vinculo matrimonii in an ex parte proceeding before the Circuit Court of the Seventeenth Judicial Circuit of Florida, Broward County.  There were two preliminary skirmishes concerning property rights of the parties, which were bitterly fought in the lower courts and the Court of Appeals, Colburn v. Colburn, 262 Md. 333, 278 A.2d 1 and Colburn v. Colburn, 265 Md. 468, 290 A.2d 480
                payments.  On 17 January 1972 Wife petitioned the Circuit Court for Anne Arundel County for an order that Husband's assets and property located in Maryland be sequestered and that the rents and profits therefrom be applied to the satisfaction of Husband's alimony arrearage and future obligations.  An order so directing issued on 18 January 1972.  On 27 January 1972 Husband moved to quash the order because Wife was 'seeking to harass him unnecessarily', and on 4 February 1972 moved to 'modify or terminate alimony and visitation rights' on the ground that the Florida divorce decree relieved the Maryland courts of 'authority to continue alimony payments' as well as jurisdiction over the custody of the minor child.  The motion to quash was denied, and Husband, pursuant to the denial of Wife's Motion Ne Recipiatur, was permitted to refile his motion of 4 February 1972.  5  On 28 July 1972 Husband again moved to modify or terminate alimony and visitation rights and filed a motion to terminate sequestration.  On 28 September 1972 Wife petitioned for a monetary [316 A.2d 286] decree for back alimony and moved for summary judgment
                

1) denied Husband's motion to terminate sequestration;

2) reduced Husband's obligation for permanent alimony from $650 per month to $400 per month 3) adjusted the annual visitation schedule to allow the minor child to visit Wife at her residence five days during the Christmas holidays, from 26 December until 30 December.

Wife appealed from those portions of the decree which reduced alimony and altered the visitation periods. Husband cross-appealed.

Wife, as appellant, contends:

'I. The parties having entered into a stipulation with with respect to changing the visitation schedule previously established, the Chancellor erred in modifying Appellant's visitation rights in disregard of that stipulation.

II. It was an abuse of discretion for the Chancellor to continue, indefinitely, the hearing on Appellee's motion to modify or terminate alimony when the Appellant failed to appear at the hearing on November 10, 1972, and was unable to present sufficient evidence to support that motion.

III. The Chancellor erred in reducing alimony upon the basis of the evidence submitted and for the reasons stated.'

Husband, as appellee, answers:

'I. The possibility of a mistake in the identification of dates in the decree with regard to the wife's visitation privileges should be determined by the lower court pursuant to its revisory power under Md. Rules 625 and 681.

II. It is beyond the scope of review to consider the chancellor's ruling on continuing the hearing below since this question was never presented to the lower court.

III. It was proper for the chancellor to modify a prior award of alimony based on the gross Husband, as cross-appellant, claims:

amount of assets of the wife, her current income and the husband's financial situation.'

'I. Article 16, Sections 3 and 5 of the Annotated Code violate the Equal Protection Clause of the Fourteenth Amendment.

II. The award of alimony in Maryland pursuant to a decree of divorce a mensa et thoro obtained by the wife did not survive the subsequent Florida divorce decree granting husband divorce a vinculo matrimonii.

III. The award of alimony to the wife should be terminated and/or modified.

IV. The Maryland courts are without jurisdiction to modify the visitation rights of the wife with regard to the minor child.'

Wife, as cross-appellee, replies:

'I. The cross-appellant waived any right to assert, on this appeal, that Article 16, Sections 3 and 5 of the Annotated Code of Maryland violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, by failing to raise and assert the issue during the original trial of this divorce action, or appeal from the decree of April 21, 1971, or in his motion to quash the writ of sequestration, and by failing to appeal from the order denying his motion to quash the writ of sequestration.

II. Article 16, Sections 3 and 5 of the Annotated Code of Maryland are not unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amemdment to the United States Constitution.

III. Having asserted in a prior motion that his IV. Under the circumstances of this case, the ex parte divorce obtained by the cross-appellant in Florida did not terminate his obligations to pay alimony previously awarded the cross-appellee.

obligation to pay alimony terminated by reason of the ex parte divorce a vinculo matrimonii he obtained in Florida, and having failed to appeal from an adverse decision on that issue, the cross-appellant is precluded from raising that issue on this appeal.

V. There was insufficient evidence to support a reduction in alimony.

VI. The ex parte Florida divorce decree did not oust the Circuit Court's continuing jurisdiction over child custody and visitation.'

We group these arguments into three categories:

1) The Constitutional Question.

2) The Payment of Alimony.

3) The Visitation Rights.

(1)

THE CONSTITUTIONAL QUESTION

Code, Art. 16, § 3 provides: 'In cases where a divorce is decreed, alimony may be awarded.' Section 5(a) of the Article, however, sets out a proviso: 'In all cases where alimony or alimony pendente lite and counsel fees are claimed, the court shall not award such alimony or counsel fees unless it shall appear from the evidence that the wife's income is insufficient to care for her needs.' On 7 November 1972, Art. 46, Declaration of Rights, Constitution of Maryland, was ratified, and became effective 5 December 1972, guaranteeing: 'Equality of rights under the law shall not be abridged or denied because of sex.' Husband urges that the provisions of § 5(a) offend the constitutional guarantee, relying on Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583.

Assuming arguendo that the question is properly before us, Minner v. Minner, 19 Md.App. 154, 310 A.2d 208, is dispositive of it. The rationale of Minner is found in our '* * * accord with the two rules which the Supreme Court has stated it feels bound to follow in its consideration of the constitutionality of a statute: 'one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. In United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524, the Court said that '(k)indred to these rules is the rule that one . . . will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." At 158, 310 A.2d at 210. We held, at 159, 310 A.2d at 211: 'We do not so construe the provisions of Art. 46 of the Declaration of Rights as to abridge or deny a wife the right to be awarded alimony...