Dickey v. Dickey

• Decision Date: 04 April 1928
• Docket Number: No. 32.,32.
• Parties: DICKEY v. DICKEY.
• Court: Maryland Court of Appeals

141 A. 387

DICKEY

v. DICKEY.

No. 32.

Court of Appeals of Maryland.

April 4 and 19, 1928.

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

Action for divorce by Jessie L. Dickey against William J. C. Dickey. Decree for plaintiff. Subsequently defendant filed a petition seeking to have alimony reduced. Plaintiff demurred, and demurrer was sustained. Thereafter plaintiff filed her petition against defendant, praying that defendant be attached for contempt in not paying according to terms of decree. Matter was heard on demurrer to petition, petition dismissed, and plaintiff appeals. Order affirmed as to refusing attachment, and otherwise reversed and remanded.

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

Emory L. Stinchcomb, of Baltimore, for appellant.

Robert W. Beach, of Baltimore, for appellee.

PARKE, J. The appellant, Jessie L. Dickey, obtained an absolute divorce from her husband, William J. C. Dickey, appellee, on statutory grounds. While the proceedings for divorce were pending, the parties sold and divided the proceeds of a property which they held as tenants by the entirety, and executed a paper writing whereby they agreed:

"That, in the event of the passage of a decree therein in favor of the plaintiff, a proper allowance to the plaintiff as and for permanent alimony in the sum of $25 per week, and that the said sum shall be payable unto her until her death or remarriage, and that this agreement shall be filed in the cause."

This contract was made while testimony was being taken to ascertain the faculties of the husband in order to enable the court to decide what would be a proper allowance to the wife as permanent alimony. There is nothing in the record to indicate that there was any fraud or collusion in the divorce proceedings or in this agreement, which so far as we can judge, was executed in an honest effort to reach a fair equivalent or substitute for the permanent alimony, which the errant husband was bound to pay to an injured wife. It will be observed that the agreement to pay the stipulated sum was not limited to the life of the husband, but was to continue until the death or remarriage of the wife. There is no ground for the assumption that the parties, who were acting under advice of their counsel, did not know that the continuation of the husband's obligation to pay after his death was an extension of his duty to pay alimony, which ceases at the death of the husband, infra, and, so, this enlargement in point of time of the husband's obligation to pay alimony was doubtlessly reflected in the amount of the agreed weekly payment.

The agreement was filed and was submitted to the chancellor, who, in granting the wife an absolute divorce, incorporated the agreement of the parties in the decree, and so gave it the court's sanction. The provision in the decree is:

"And it is further ordered that said defendant shall pay said complainant as permanent alimony the sum of $25 per week, accounting from the date of this decree, until her death or remarriage, or until the further order of. this court."

Since the case of Wallingsford v. Wallingsford, 6 Har. & J. 485, it has been the settled law of Maryland that permanent alimony is a provision by the husband for the wife's support that continues only during their joint lives or so long as they live separate and apart. 2 Bishop on Marriage & Divorce, §§ 836, 858; Emerson v. Emerson, 120 Md. 584, 590, 87 A. 1033; Polley v. Polley, 128 Md. 60, 63, 97 A. 526; McCaddin v. McCaddin, 116 Md. 572, 82 A. 554; Newbold v. Newbold, 133 Md. 170, 175, 104 A. 366; Hood v. Hood, 138 Md. 355, 365, 113 A. 895, 15 A. L. R. 774; Blades v. Szatai, 151 Md. 644, 649, 135 A. 841, 50 A. L. R. 232. It is equally well established in this state that a final decree of divorce amensa et thoro or a vinculo matrimonii may be modified at any subsequent time as to alimony. Clarke v. Clarke, 149 Md. 590, 592, 593, 131 A. 821; Winchester v. Winchester, 138 Md. 95, 97, 113 A. 584, 14 A. L. R. 609; Braecklein v.Braecklein, 136 Md. 33, 38, 109 A. 546. If, however, the allowance to the wife in the decree is the result of a previous agreement between the spouses and does not fall within the accepted definition of alimony, so that it would have been impossible for the chancellor to have allowed permanent alimony as the decree provides, then, notwithstanding the parties and even the court called it "alimony," the allowance for the wife in the decree was not alimony, and a court of equity has no power to modify the decree as in the case of an award of alimony, infra. The agreement by the husband to pay the wife aweekly sum of money until her death or remarriage did not limit his payments to the joint lives of the spouses, and hence was not what the court could have decreed as alimony ; but this agreement providing the wife with a weekly stipend, without reference to whether or not the husband survived her or they lived separate and apart, was properly incorporated in the decree as was determined by Emerson v. Emerson, 120 Md. 584, 598, 599, 87 A. 1033, and Newbold v.Newbold, 133 Md. 170, 174, 175, 104 A. 366, Miller's Equity, § 269 ; 2 Bishop on Marriage and Divorce, § 885.

When tested by the rules stated, the decree in this case was not for alimony, but was an adoption by the chancellor of aprior agreement between the parties. But, at first, both the parties and the chancellor erroneously treated the agreement and decree alike as having alimony as their common subject-matter, and hence the chancellor concluded the provision of the decree for the payment of the weekly amount with not only the limitation of the duration of the husband's liability to the wife's death or remarriage, which was not within the meaning of alimony but which was pursuant to the contract; but also with the further ultimate limitation of "until the further order of this Court," which was consistent with the theory of an award of alimony but which was repugnant to the terms of the contract between the spouses.

In determining the effect of the decree, the bill, answer, and all the other proceedings, including the agreement of the parties, which was filed in the cause, should be considered; and this was done more than two years after the passage of the decree when the former husband filed a petition asking that the amount of the weekly payments be reduced on the assumption that the decree was for alimony. The wife demurred to this petition of the husband and her demurrer was sustained, the chancellor holding the nature of the decree prevented it from being for alimony, and that its provisions as to the obligations of the husband were not subject to alteration by the chancellor. This ruling was not reversed, and is the law...