Cruz v. Silva

Decision Date25 November 2009
Docket NumberNo. 0550, September Term, 2008.,0550, September Term, 2008.
PartiesGuzman CRUZ v. Clemencia Solis SILVA.
CourtCourt of Special Appeals of Maryland

Mazin I. Elias (Stephen E. Moss, Deckelbaum, Ogens & Raferty, on brief), Bethesda, for Appellant.

Julia H. Cohen, Washington, DC, for Appellee.

Panel: DAVIS, WOODWARD and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

MOYLAN, J.

The notion of alimony totally disconnected from a divorce, albeit a practice boasting a venerable pedigree, has become at least quaintly anachronistic, if not actually vestigial, in 21st Century Maryland. Just such a self-contained grant of alimony, however, is what we are urged to hold survived the shipwreck of a divorce proceeding in the Circuit Court for Prince George's County on January 9, 2008. Involved is an unusual 300-year-old procedure, the raison d'etre for which did not outlive the Mexican War.

The Dramatis Personae

The appellant, Guzman Cruz (Husband), and the appellee, Clemencia Solis Silva (Wife), were married on December 19, 1995. Two children were born of that union: Salvador Cruz, on February 18, 1996; and Yesenia Cruz, on January 10, 2000. On January 25, 2007, the Husband filed a Complaint for Limited Divorce on the basis of a one-year voluntary separation. On July 2, 2007, the Wife filed a Counter-Complaint For Absolute Divorce or, In the Alternative, for Limited Divorce, alleging as her grounds: 1) adultery and 2) abandonment. The divorce charges were thus double-barreled, with the Husband seeking a limited divorce and the Wife, an absolute one or, in the alternative, a limited one. The Wife also requested alimony.

A Legal Shipwreck

The primary language of both parties is Spanish, and they, at trial, utilized an interpreter. Both parties, moreover, appeared pro se, although they had earlier been represented by counsel. Proceeding in such a legally untutored fashion, of course, is an invitation to disaster, and in this case the voyage out never cleared the harbor. At the outset of the hearing, the Husband's very first response foreshadowed trouble dead ahead:

COURT: ... Let me ask another question. Did you bring a witness to corroborate your grounds for divorce?

A No.

Q Well then, you can't, then your request for divorce is going to be denied because the Court can't award a divorce without a corroborating witness. According to the law, we need to have any grant of divorce proved and corroborated.

(Emphasis supplied).

To the extent to which the divorce proceeding depended on his making a case, it teetered unsteadily. Within the minute, the Wife delivered the coup de grace:

COURT: Did you bring a witness for a limited divorce?

A No.

Q Okay. So, what's going to happen today, so everybody's clear, is we will go forward on the complaint and on the counter-complaint. Since nobody brought a corroborating witness the Court will not be able to award anybody a divorce or a limited divorce.

(Emphasis supplied).

Not only did neither party prove legally sufficient grounds for divorce, but neither even gave testimony which, if corroborated, might have established grounds for divorce. At that point, of course, there was still the possibility that corroborating witnesses might arrive in the nick of time to salvage the divorce proceeding, but no such salvage effort was ever made. The whole issue of divorce, or even the setting out of grounds for divorce, was off the table. The trial judge, nonetheless, resolved to soldier on.

So, the only issues it seems to me that are before me today are child support and alimony.

When the final curtain rang down on the January 9 performance, moreover, the run was over. There would be neither postponement nor continuance. In announcing the "Findings of the Court," the trial judge began:

THE COURT: Okay. This matter is here, complaint for limited divorce, requesting among other things a limited divorce, custody, use and possession of the home as well as a counter complaint for divorce, alimony, child support, property and use and possession. Both parties have chosen to proceed pro se although both parties were represented by counsel until this morning. And neither party brought a corroborating witness to proceed on their claim for a divorce or limited divorce.

Accordingly, the request for a divorce, limited divorce and the property request will all be denied and dismissed insofar as any matter of property award and use and possession will be contingent upon a divorce, a limited divorce as the case may be.

(Emphasis supplied).

As the trial ground to a halt, the judge denied the Husband's "Complaint for Limited Divorce and [the Wife's] Counter-complaint for Absolute Divorce." The divorce case, in both directions, had collapsed before it got started.

What, If Anything, Was Salvaged?

What about survivors? The judge did award the custody of the two minor children to the Wife and ordered the Husband to pay $764.00 per month in child support. The judge also ordered the Husband to pay to the Wife the sum of $1,500.00 per month as indefinite alimony. There was no mention in the Order of the Court that the alimony was merely to be pendente lite. Not only has neither party ever suggested that the indefinite alimony in this case was alimony pendente lite, but there was no such possibility. There was no litigation that remained pending. There was no "lite" to be "pendente." The Court Order directed that "this case be and hereby is closed statistically."

The Order of Court followed on January 23, 2008. Pertinent for possible survival purposes are the orders dealing with 1) indefinite alimony and 2) child support.

ORDERED, that Plaintiff be and hereby is directed to pay to Defendant the sum of $1,500.00 per month as indefinite alimony accounting and accruing from January 1, 2008. Said payments are to be made through the Office of Child Support Enforcement by wage lien; and it is further

ORDERED, that Plaintiff be and hereby is directed to pay to Defendant the sum of $764.00 per month as child support for the minor children accounting and accruing from January 1, 2008. Said payments are to be made through the Office of Child Support Enforcement by wage lien; and it is further[.]

(Emphasis supplied).

The final two orders left no doubt that both requests for divorce were absolutely denied and that the case was finally closed.

ORDERED, that all other requests in Plaintiff's Complaint for Limited Divorce and Defendant's Counter-complaint for Absolute Divorce be and hereby are DENIED; and it is further,

ORDERED, that this case be and hereby is closed statistically.

(Emphasis supplied).

The overarching question before us is: With the core issue of divorce excised from the case, what vitality, if any, remains in the extremities of 1) the grant of indefinite alimony and 2) the award of child support?

The Contentions

The Husband has taken a timely appeal and now contends

1. that the trial court erred in awarding indefinite alimony to the Wife;

2. that the trial judge should, on remand, be required to consider the recoupment by the Husband of the alimony erroneously awarded to the Wife; and

3. that the trial court erred in calculating the child support award.

Alimony Standing Alone

Contending that the trial court erred by awarding indefinite alimony to the Wife, the Husband mounts a four-pronged attack, asking:

Whether the trial court erred in making an award of indefinite alimony when it failed: (A.) to grant a divorce and no evidence was offered to prove grounds for divorce or the cause of the estrangement of the parties; (B.) to make the necessary projection of the point in time when Ms. Silva would reach maximum potential income; (C.) to properly determine whether the parties standards of living would be unconscionably disparate; and (D.) to take into account the Appellant's monthly expenses.

We are persuaded by the first prong. Because the Wife never established a proper predicate entitling her to alimony, such an award was a nullity ab initio. The latter three issues, dealing only with a determination of the type of alimony and the calculation of the amount of alimony, are self-evidently moot As Judge Deborah Eyler noted in Whittington v. Whittington, 172 Md.App. 317, 342, 914 A.2d 212 (2007), "Because we are vacating the alimony award, there is no reason for us to comment upon the amount of the now-vacated award." This case turns on the validity of the first sub-contention.

Although the very notion of alimony without divorce may strike the lay ear as an oxymoron, the concept enjoys a long and venerable history, at least in this State. It is, in a sense, an artifact from another time and it behooves us to examine its etiology.

Distant Beginnings

Although the power of the courts to grant divorce is exclusively a creature of statute, with "no existence in the absence of statutory enactment," Outlaw v. Outlaw, 118 Md. 498, 500, 84 A. 383 (1912), the inherent power of the courts to award alimony is almost as old as the Proprietary Colony of Maryland itself. In 1689, the Provincial Court held in Galwith v. Galwith, 4 H. & McH. 477, 478 (1689), that the power to grant alimony rested in the Court of Chancery. See also Crane v. Meginnis, 1 Gill and Johnson 463, 475 (1829). The legislative imprimatur was placed on that power by one of the first acts of the newly independent State of Maryland, as Chapter 12 of the Acts of 1777 officially bestowed the power over alimony on the Courts of Equity. The Act expressly provided that:

"The Courts of Equity of this State shall and may hear and determine all causes for alimony in as full and ample manner as such cases could be heard and determined by the laws of England in the Ecclesiastical Courts there."

(Emphasis supplied).

Although the Maryland courts would, after 1777, try to hear and determine alimony cases just as did the Ecclesiastical Courts of England, there was one gaping difference between the two court systems. The English cour...

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