Courson v. Courson

• Decision Date: 14 March 1957
• Docket Number: No. 119,119
• Citation: 213 Md. 183,129 A.2d 917
• Parties: Nadine Annette COURSON v. Paul Samuel COURSON, Jr.
• Court: Maryland Court of Appeals

Page 183

213 Md. 183

129 A.2d 917

Nadine Annette COURSON v. Paul Samuel COURSON, Jr.

No. 119.

Court of Appeals of Maryland.

March 14, 1957.

Dissenting Opinion March 27, 1957.

As Modified on Denial of Rehearing May 3, 1957.

Wallace Dann, Baltimore (Howard Calvert Bregel and Calvert Ross Bregel, Baltimore, on the brief), for appellant.

David D. Merrill and William J. Yarworth, Baltimore, for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

PRESCOTT, Judge.

By decree of the Circuit Court No. 2 of Baltimore City dated April 16, 1953, the appellant was divorced a mensa et thoro from the appellee and awarded permanent alimony at the rate of $25 per week. Thereafter, the appellee instituted suit against her for a divorce a vinculo matrimonii, which the Chancellor granted but which was reversed by this Court on the grounds of recrimination Courson v. Courson, 208 Md. 171, 117 A.2d 850. In his bill, the appellee charged adultery on the part of the appellant, which this Court determined as a fact to be true. Upon receipt in the lower Court of the mandate of this Court, the appellee petitioned for a modification of the alimony allowed the appellant in the a mensa decree on the ground that the adultery proved in the a vinculo case was a good and sufficient reason for modification of the decree awarding her alimony. The Chancellor considered the matter and suspended the alimony subject to the further order of the Court.

The appellant contends (and the appellee denies) that the alimony set by the Chancellor in the decree which granted her a divorce a mensa is res judicata; and, although conceding the power and authority of the Courts in Maryland to modify their a mensa decrees relative to permanent alimony, she claims the Courts may do so only when the pecuniary faculties of the husband or the needs of the wife have changed since the entry of the decree, and the Chancellor had no right to consider the fact that she had committed adultery in modifying the decree that granted her alimony.

As this seems to be the first time this question has been directly presented in this jurisdiction, it may not be inappropriate to briefly outline the history of alimony as it has been dealt with here, as shown by the legislative enactments and judicial decisions. From the time of Foliamb's case (44 Eliz.), 3 Salk. 138, (about 1602) until the divorce act of 20 and 21 Vict. ch. 85 (about 1857), no absolute divorce could be judicially granted in England. The only legal separation recognized was a divorce from bed and board upon a decree of the Ecclesiastical Court. These Courts, as an incident to the decree, granted alimony, temporary or permanent, but only as a part of the decree a mensa et thoro. Alimony, therefore, under the English law had no independent existence, and no Court, not even the Ecclesiastical, could grant alimony when it was the only relief sought. This doctrine was adopted and followed in the early decisions of many of the States in this country, but not in Maryland.

During the short existence of the Republic in England (1649-1660), after the first King Charles was beheaded, the Ecclesiastical Court was abolished; and, as a result, for at least until the restoration of the monarchy, the entire jurisdiction in all cases of alimony and of separate maintenance devolved, as a matter of necessity, upon the Court of Chancery. In Maryland, there never was an Ecclesiastical Court; therefore the High Court of Chancery (or the Court of Ordinary) always had, even under the Provincial Government, entire jurisdiction of claims for alimony, or separate maintenance, from the husband based on his misconduct. Apparently, at that time this misconduct was limited to adultery and cruelty. Galwith v. Galwith, 4 Har. and McH. 477 (a case wherein the Lord Proprietary of Maryland presided); Hewitt v. Hewitt, 1 Bl. 101; Helms v. Franciscus, 2 Bl. 544, 565. In 1777, by legislative enactment (now Sec. 14 of art. 16 of the Maryland Code) the courts of equity of this State were given specific authority to hear and determine all causes for alimony.

From the earliest times in this State, divorces were granted by, and emanated from, the legislature; but an attempt by the legislature to grant alimony was held to be a judicial function and therefore unconstitutional. Crane v. Meginnis, 1 Gill & J. 463, 474. In 1841, the legislature granted jurisdiction of all divorce actions to the courts of equity of this State. (now Secs. 31, 33 and 34 of art. 16). It was thereafter held that these enactments did not preclude the legislature from granting divorces, Wright v. Wright's Lessee, 2 Md. 429, 450, but by Sec. 33 of art. 3 of the Maryland Constitution, the legislature is now prohibited from so doing.

So, at the present time and for many years past in Maryland, the jurisdiction t hear and determine questions of divorces and alimony, both temporary and permanent, is, and has been, vested in the courts of equity in this State. Alimony has never been defined here by statute; but, from the beginning, it has never been considered, as in some States, as a division of property. It 'is a maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee simple * * * but a provision for her support, to continue during their joint lives, or so long as they live separate.' Wallingsford v. Wallingsford, 6 Har. & J. 485, 488. And, without exception, this Court has held that in a suit for alimony alone, the wife must allege and prove facts sufficient in themselves to support a decree for a divorce a mensa or a vinculo. In other words, in order that she be entitled to alimony, she must show she is entitled to either a partial or an absolute divorce. Among the many cases so holding, are: Staub v. Staub, 170 Md. 202, 208, 183 A. 605; Hood v. Hood, 138 Md. 355, 361, 113 A. 895, 15 A.L.R. 774; and Polley v. Polley, 128 Md. 60, 63, 97 A. 526.

We shall quote briefly from several cases holding to like effect: The Court '* * * cannot allow itself to receive any matter as a sufficient ground for granting alimony alone, which would not be a sufficient foundation * * * for granting a divorce a mensa et thoro together with its incident alimony * * *'. Outlaw v. Outlaw, 118 Md. 498, 503, 84 A. 383, 385; '* * * alimony alone can only be granted upon grounds sufficient to justify a divorce a vinculo or a mensa.' Polley v. Polley, supra [128 Md. 60, 97 A. 528]; and '* * * there can be no allowance for alimony where there is no right to a divorce * * *.' Melson v. Melson, 151 Md. 196, 205, 134 A. 136, 139.

There are a few cases that hold that illicit relations by the wife after she has obtained an absolute divorce are not a bar to future payments of alimony. Among these are Suozzo v. Suozzo, 1 A.2d 930, 931, 932, 16 N.J.Misc. 475; and Hayes v. Hayes, 220 N.Y. 596, 115 N.E. 1040; Cooley v. Cooley, 244 Ill.App. 488. The Minnesota Court in Lindbloom v. Lindbloom, 180 Minn. 33, 230 N.W. 117, points out that most of the Courts that have held in the above manner base the same upon the fact the alimony was in reality a division of property, or that the husband had received property from the wife or her industry, and it would be inequitable for him to retain the same, without making provision for her support. Some of them base their rulings on the further fact that where there is an absolute divorce, the marital ties are severed--the marriage is dissolved--and thereafter the wife owes to the husband no greater obligation than she owes to the public at large, or upon statutes. In 82 A.L.R. p. 540, it is stated: 'It is an almost universal rule that permanent alimony will be denied to a wife who has been found guilty of adultery', citing many cases.

There is a long line of decisions and authorities that hold that where there is no absolute divorce, adultery by the wife is a defense to her suit for separate maintenance and support, or it will justify a modification or revocation of a decree for alimony. Cariens v. Cariens, 50 W.Va. 113, 40 S.E. 335, 55 L.R.A. 930; Jennison v. Jennison, 136 Ga. 202, 71 S.E. 244; 6 A.L.R. at pages 34, 35, where many cases are cited. See also Bishop on Mar., Div. and Sep. (1 Ed.), Vol. 1 par. 1230, wherein is stated: 'Ordinarily if, while husband and wife are living apart under circumstances rendering him liable for her support, she commits adultery, his liability ceases, * * *.' And to like effect is Nelson, Divorce and Annulment, (2 Ed.) Vol. 3 par. 32.21 where it is said: 'Where both parties are at fault, or guilty of marital misconduct, separate maintenance will be denied the wife, since the fault or misconduct of one may not be set off against that of the other so as to leave the wife's right to maintenance unimpaired.'

And there is very respectable authority that holds that a wife's adultery is a defense to her claim for maintenance, notwithstanding the husband was likewise guilty of the same offense. Piper v. Piper, 176 A. 345, 13 N.J.Misc. 68; Hawkins v. Hawkins, 193 N.Y. 409, 86 N.E. 468, 19 L.R.A.,N.S., 468; Leib v. Leib, (Can.) 6 Terr.L.Rep. 308; Mays v. Mays, Sup., 22 N.Y.S.2d 702; Cf. Com. ex rel. Crabb v. Crabb, 119 Pa.Super. 209, 180 A. 902. And at least five States have, or had, statutes prohibiting alimony to an adulterous wife: Florida; Michigan; Minnesota; Nebraska; and Wisconsin.

In this State, a limited divorce is one from bed and board. It grants unto the injured spouse the right to live separate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds. Alimony stems from the common law duty of a man to support his wife, and, in Maryland, has always been considered as outlined above. We hold the proper rule, supported by reason and authority, is that when a wife, who is living separate and...