Emerson v. Emerson
| Decision Date | 25 April 1913 |
| Citation | 87 A. 1033,120 Md. 584 |
| Parties | EMERSON v. EMERSON. |
| Court | Maryland Court of Appeals |
Briscoe Thomas, and Stockbridge, JJ., dissenting in part. Appeal from Circuit Court of Baltimore City; Carroll T. Bond Judge.
Action by Emilie A. Emerson against Isaac E. Emerson for a divorce and alimony. From a decretal order dismissing defendant's petition for modification of the decree for plaintiff in respect to alimony, the defendant appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Vernon Cook and Edgar H. Gans, both of Baltimore, for appellant.
George Whitelock and William S. Bryan, Jr., both of Baltimore, for appellee.
This appeal is from a decretal order sustaining a demurrer to a petition and dismissing the petition. The appellee filed a bill praying for a divorce a vinculo matrimonii, and that she be "declared to be entitled to receive by way of alimony such an allowance from her said husband as may be proportionate to his means and station in life." The appellant failing to answer, a decree pro confesso was entered.
During the taking of testimony before the examiner, there was offered in evidence an agreement between the parties, under the following introduction: "It is agreed in the above case that no testimony need be taken bearing on the question of alimony and counsel fees; both parties hereby admitting that a proper and reasonable arrangement in reference thereto, to be incorporated in any decree of absolute divorce that may be granted the plaintiff under the bill now pending, is as follows." The arrangement is then set out in five provisions:
No. 1. That the husband shall pay the wife $28,800 per annum, in monthly installments, during her life.
No. 2. That he shall pay $5,000 to each of his wife's counsel.
No. 3. That to secure the payment of the alimony he shall deposit a certificate of 600 shares of the stock of the Emerson Drug Company with trustees who shall, upon default in the payments of installments of alimony, have the stock transferred to themselves, and then collect the dividends to apply on account of installments due or to become due. That after the wife's death the stock shall return to the husband, and that until default in payment of alimony he shall continue to vote it.
No. 4. That the furniture in the former residence of the couple shall remain the property of the wife with the exception of some books to be selected by the husband, a portrait, and a few curios.
No. 5. That an "Italian Garden" adjoining the residence shall remain appurtenant to the residence, which is the wife's property, so long as the wife shall reside there, and any purchaser of the residence from the wife shall have an option to purchase the garden from the husband at a price fixed.
Then follows (6) a specific promise on the part of the husband to pay the alimony of $28,800 annually; and (7) an agreement that, if the court should think it beyond its jurisdiction to incorporate in the decree the provisions in paragraphs 3, 4, 5, and 6, the parties should abide by them nevertheless.
A decree was passed divorcing the appellee from the appellant a vinculo matrimonii, and the above provisions of the agreement were adopted by the court, and, with the exceptions of paragraphs 6 and 7, the exact language of the agreement was incorporated in the decree.
The appellee subsequently remarried, and 15 months after the passage of the final decree the appellant filed a petition alleging the remarriage, and that the new husband was liable and able to provide for the maintenance and support of the appellee, and praying that an order be passed modifying the decree to the extent of relieving him of all further obligations for the payment of alimony to the appellee. To this petition the appellee filed a demurrer, denying that the appellant was entitled to any relief, and that the court was without jurisdiction to grant the relief prayed.
The questions raised are: Has a court of equity in Maryland the power to modify, alter, or rescind a final decree, founded upon a bill for absolute divorce, where there are no reservations, after it has became enrolled? If so, does the remarriage present such a case for its modification or rescission? And what effect, if any, does the fact that the part of the decree providing for alimony being founded upon an agreement have upon the decree?
As to the jurisdictional question, the appellee contends that it is a fixed and rigid rule of the Maryland practice that an enrolled final decree is final upon the rights of the parties, and that the courts have no power whatever to change those rights, except in cases not heard upon the merits, wherein it is alleged that the decree has been entered by mistake or surprise or under such circumstances as shall satisfy the court, in the exercise of a sound discretion, that the enrollment should be discharged. Pfeltz v. Pfeltz, 1 Md. Ch. 456; Brown v. Thomas, 46 Md. 640; Herbert v. Rowles, 30 Md. 271; Rice v. Donald, 97 Md. 401, 55 A. 620.
The correctness of this contention, as a general rule, is not open to question. But it is claimed by the appellant that, this decree being one dealing with alimony, as it is understood in Maryland, the court retains a continuing jurisdiction over it and has power to modify its provisions as to the alimony at any time upon proper cause shown. The question has never been definitely settled in this state, but has been variously decided in other states, so it will be well for us to consider the jurisdiction of our courts over the question of divorce and alimony.
There has been a recent decision in this state, McCaddin v. McCaddin, 116 Md. 568, 82 A. 554, which the appellee claims controls this case. We cannot agree with this contention. The question involved in that case was not whether the provision for alimony in a decree of divorce a vinculo could be modified, but whether the provision could be modified where the decree provided for alimony alone, without a divorce of either kind. Chief Judge Boyd, in delivering the opinion of the court in that case, said: "There has been some diversity of opinion between the courts of different jurisdictions as to how far a final decree, allowing alimony, can be modified after the decree has become enrolled," and then quoted from 2 Am. & Eng. Ency. of Law (2d Ed.) 135, to the effect that the amount of alimony allowed pendente lite, or upon a decree of divorce a mensa et thoro or alimony without a divorce, could be changed as circumstances demanded it; but in cases of a decree a vinculo the award is absolute and could not be changed after enrollment, unless the decree contained a reservation of that right, or a statute gave the power to modify. Judge Boyd then said: "It seems to be well settled that, at least when a divorce a mensa et thoro is granted, or where there is an allowance of alimony without divorce, the decree can be modified as circumstances may require," etc. The question involved in this appeal was not before the court in that case. There was no OPINION on this point, but merely a quotation stating what the rule was held to be by that authority. We think the learned judge below was correct in holding that that authority did not control this question.
Divorce was entirely unknown to the common law, and in this state is of statutory creation. Limited divorces with alimony were in England for years granted by the ecclesiastical courts. In this state, there being no ecclesiastical courts, the Legislature granted divorces; but the courts of chancery assumed jurisdiction over alimony. But by the Act of 1777, c. 12 (Code 1912, art. 16, § 14), the power was given expressly to courts of equity to exercise this jurisdiction. That act provides 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 causes could be heard and determined by the laws of English in the ecclesiastical courts there." The only kind of alimony known to the ecclesiastical courts being that granted in connection with limited divorces. By the Act of 1841, c. 262 (Code 1912, art. 16, § 36), courts of equity are given jurisdiction over both kinds of divorces. By the same act (Code 1912, art. 16, § 15), it was provided that in all cases where divorces were granted alimony might be awarded. The only other provision of law in this state dealing with alimony is in Code 1912, art. 16, § 38, where it is provided that: "In all cases where a divorce is decreed, the court passing the same shall have full power to award to the wife such property or estate as she had when married, or the value of the same, or of such part thereof as may have been sold or converted by the husband, having regard to the circumstances of the husband at the time of the divorce, or such part of any such property as the court may deem reasonable."
Nowhere in our statutes is there a definition of what alimony is, and our courts, since the act of 1841, have been awarding alimony, in granting alimony in connection with a decree of divorce a vinculo, as it was understood and awarded by the ecclesiastical courts of England and our equity courts, as incidental to divorce a mensa, except, of course, in cases where the bill prays for a return of property held by the wife at the time of marriage. Our understanding of alimony and its incidents has been borrowed from the decisions of the ecclesiastical courts, and this court has on several occasions said that in divorce cases the courts of equity of this state do not sit in the exercise of their general equitable jurisdiction, but as a divorce court, and are governed by the rules and principles established in the ecclesiastical courts of England, so far...
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