Duskin v. Duskin

• Decision Date: 13 April 1982
• Docket Number: No. 1004,1004
• Citation: 51 Md.App. 451,443 A.2d 1010
• Parties: Elizabeth S. DUSKIN v. Gerald L. DUSKIN.
• Court: Court of Special Appeals of Maryland

Page 451

51 Md.App. 451

443 A.2d 1010

Elizabeth S. DUSKIN v. Gerald L. DUSKIN.

No. 1004.

Court of Special Appeals of Maryland.

April 13, 1982.

Nelson M. Oneglia, with whom were Horowitz, Oneglia, Goldstein, Foran & Parker, P.A., College Park, on the brief, for appellant.

Raymond Rabin, Washington, D.C., for appellee.

Argued before WEANT and BISHOP, JJ., and

JAMES S. GETTY, special judge.

BISHOP, Judge.

During its 1978 session the General Assembly of Maryland enacted legislation which granted equity courts authority to provide for the disposition and use of property in conjunction with a divorce or annulment. Laws of Maryland, ch. 794, § 1 (1978). This statute is now codified as Md.Cts. & Jud.Proc.Code Ann. § 3-603 and §§ 3-6A-01 to 3-6A-07 (1980 Repl. Vol., 1981 Cum.Supp.). Section 2 of chapter 794 provides that "This Act shall take effect January 1, 1979 and shall apply only to cases filed after that date."

This appeal, from a final decree of divorce a vinculo matrimonii granted by the Circuit Court for Montgomery County, requires this Court to interpret Section 2 in an unusual factual context.

The Facts

Elizabeth S. Duskin, the appellant, and Gerald L. Duskin, the appellee, were married in 1957. On or about April 26, 1978, the parties separated and on June 23, 1978 the appellant filed a bill of complaint in the Circuit Court for Montgomery County for injunctive relief and divorce a mensa et thoro alleging appellee's cruelty. This case was designated Equity No. 63525. The appellee answered the bill of complaint and on July 7, 1978 filed a counterclaim for divorce a mensa et thoro, also alleging cruelty. The appellant filed a timely answer to the appellee's counterclaim, and on December 29, 1978 filed an amendment to her bill of complaint which deleted any claim or request for divorce a mensa et thoro. On June 14, 1979 the appellee filed a supplemental cross-bill of complaint for divorce a vinculo matrimonii in Equity No. 63525. In this cross-bill the appellee reiterated the allegations of the appellant's cruelty which he had set forth in his counterclaim, and he stated that the parties continued their voluntary separation as set forth in the appellant's bill of complaint.

The appellant answered the appellee's supplemental cross-bill of complaint and on July 23, 1979 she filed a bill of complaint for divorce a vinculo matrimonii on the grounds of appellee's cruelty and the parties' voluntary separation. This bill of complaint was assigned Equity No. 67957. On October 4, 1979, the appellee filed a motion raising preliminary objection to the appellant's second bill of complaint on the grounds that his supplemental cross-bill of complaint constituted a pending action between the same parties for the same cause in Equity No. 63525. Following a hearing on the appellant's motion, the Circuit Court, by an order filed on February 6, 1980, denied the motion without prejudice to the appellee "to raise this matter at the time of the hearing on the merits." By that same order the Circuit Court also consolidated for trial Equity Nos. 67957 and 63525, All subsequent documents pertaining to the case bear the designation of "Equity No. 63525" or "Equity No. 63525, 67957 (Consolidated)."

Trial was held on February 23, 24 and 26, 1981. During the last day of trial the chancellor concluded:

"That on or about the 25th day of April, 1978, the parties did voluntarily and mutually agree to live separate and apart and have lived separate and apart since that time without any reasonable hope or expectation of a reconciliation.

That immediately brings me to the first place where I have to go and that is I have now found sufficient facts on which to award a divorce a vinculo, but I have to first meet the question of which case I can go under.

The posture of the case is this: In 63525 an original complaint was filed by Mrs. Duskin on June 23, 1978, for divorce a vinculo (sic). On June 14, 1979, the husband filed a supplemental cross-bill for a divorce a vinculo on the grounds of voluntary separation. On July 23, 1979, the new bill was filed in separate action 67957.

The problem I face is this, and that is I have to reach-since they have both filed for the same grounds; namely, on the grounds of voluntary separation, I have to reach the one which was first filed in time and, therefore, I have to reach the one, the supplemental cross-bill that was filed by Mr. Duskin, although I might not particularly wish to do that, that is the way I have to follow the law and that is what I have to do. I cannot leap over that and go directly to the other one, ....

I have carefully read the Mollar case looking for some sort of help that might allow me to go along with the Mollar case, but I could not find it. ¹

In that case there were two totally distinct cases in the form of what the grounds were. In other words, his was for constructive desertion and hers was for desertion and, therefore, in that case they said, no, he didn't prove his claim and, therefore, he was-his case was out, and therefore they could go to the other one and find it.

We don't have that here. I just have the same grounds, and so I have to reach that one first.

At any rate, so, I found I really was not able to use that as an authority to do it, so therefore I have to give the divorce to Mr. Duskin on the non-culpatory ground of voluntary separation for one year."

On March 20, 1981, the chancellor filed her final decree that the appellee be divorced a vinculo matrimonii from the appellant "in Equity No. 63525." It was further ordered that the appellant be awarded custody of the parties' minor child and that appellee pay appellant $650.00 per month child support and $5,000.00 towards appellant's attorney's fees.

Application of the Marital Property Act

1. A Case with Supplemental Pleadings

On appeal the appellant contends that the chancellor abused her discretion by not applying the Marital Property Act, Md.Cts. & Jud.Proc.Code Ann. §§ 3-6A-01 to 3-6A-07 to the present case. In her brief the appellant supports this contention, without reference to case law, by asserting that the Act "Should be interpreted liberally in close cases to advance the remedy and obviate the mischief at which (the Act is) directed." At oral argument the appellant renewed this assertion in a modified form, citing Wallace v. Wallace, 46 Md.App. 213, 416 A.2d 1317 (1980) for the proposition that the chancellor "could have granted" a divorce to the appellee while awarding alimony and property to the benefit of the appellant.

The appellee replies by contending that the chancellor's final decree, which was not based on the Marital Property Act, is sustainable in light of this Court's recent interpretation of the effective date clause of the Marital Property Act-Laws of Maryland, ch. 794, § 2 (1978).

In Athanason v. Athanason, 48 Md.App. 231, 232, 426 A.2d 16 (1981), this Court held that Section 2 precluded the application of the Marital Property Act to a case in which a wife filed a bill of complaint for divorce a mensa et thoro in 1978, and then in 1979 filed a supplemental bill of complaint for divorce a vinculo matrimonii. Unlike the present case, in Athanason, supra, the same party filed both the original bill of complaint prior to 1979 and filed the supplemental bill under which the divorce a vinculo matrimonii was granted. Moreover, in Athanason neither party filed in 1979 a second bill of complaint which was designated with a second equity number. Because of these factual distinctions between Athanason and the present case we cannot find Athanason completely dispositive of the present question concerning application of the Marital Property Act.

The introduction into the present case of a second bill of complaint creates a significant distinction between this case and Athanason. As the Hon. Benjamin L. Cardin, Speaker of the House of Delegates, noted in his discussion of the effective date clause of the Marital Property Act, distinct issues exist as to whether the Act applies 1) if a cross-bill was filed after January 1, 1979, although the original papers were filed prior to January 1, 1979, and 2) if a separate bill of complaint was filed after January 1, 1979, but another bill of complaint is pending and was filed prior to January 1, 1979. B. Cardin, "Property Disposition in Divorce and Annulment," in Maryland Divorce and Separation Law 61-62 (J. W. Ester, ed. 1979). See also, "Property Distribution Upon Divorce in Maryland" 8 Balt.L.Rev. 377, 379-380, n.23 (1979), in which the student writer identifies "several interim problems" with the Marital Property Act, including 1) "whether an action filed prior to January 1, 1979 can be amended or supplemented and thereby qualify as a new action within the Statutory provisions;" and 2) "it is not clear which law would apply if one spouse filed a bill of divorce prior to January 1, 1979 and the other (or same spouse) filed after that date.... If the second bill for divorce withstands a preliminary objection, it is not clear what law would apply if the cases were consolidated."

The decision in Athanason, supra, that a supplemental bill of complaint for divorce filed in 1979 would "relate back" to the 1978 filing date of the original bill of complaint, effectively solves the first hypothetical problem posed by Speaker Cardin and the law review author. It remains for this Court now to determine whether the Marital Property Act applied in a more complicated circumstance.

Clearly, when the present case began with the filing on June 23, 1978 of the appellant's bill of complaint for divorce a mensa et thoro, the Marital Property Act could not have been applied in an adjudication on that bill. Likewise the Act could not have been applied to the appellee's counterclaim filed on June 7, 1978. Bender v. Bender, 282 Md. 525, 535, 386 A.2d 772, n.7 (1978).

If the present case had been jointly tried on the appellant's original bill of...