Flanagan v. Flanagan

• Decision Date: 05 February 1973
• Docket Number: No. 360,360
• Citation: 299 A.2d 520,17 Md.App. 90
• Parties: Raymond J. FLANAGAN v. Bonnie J. FLANAGAN.
• Court: Court of Special Appeals of Maryland

Page 90

17 Md.App. 90

299 A.2d 520

Raymond J. FLANAGAN v. Bonnie J. FLANAGAN.

No. 360.

Court of Special Appeals of Maryland.

Feb. 5, 1973.

John F. Lillard, Jr., College Park, for appellant.

William W. Grant, Oakland, with whom was Mary Ellen Brooke, Baltimore, on the brief, for appellee.

Argued before MORTON, CARTER and SCANLAN, JJ.

SCANLAN, Judge.

This domestic dispute comes to this Court on appeal from the Circuit Court for Prince George's County for the second time. On the first appeal, the wife, Bonnie J. Flanagan, appealed from an order of the chancellor (Mitchell, J.) overruling her exceptions to the report of the Master in Chancery and entering a decree granting Raymond J. Flanagan's suit for divorce a vinculo matrimonii on the ground of five years uninterrputed separation, denying alimony and making no provision for counsel fees for the wife's attorneys. Flanagan v. Flanagan, 14 Md.App. 648, 288 A.2d 225 (1972). We vacated the decree and remanded the case for further proceedings, holding that the Master lacked jurisdiction to hear a contested divorce case by virtue of then Rule S80 b of the Rules of the Seventh Judicial Circuit. ¹

During the course of further proceedings before the chancellor (Bowie, J.) following remand, he refused to permit counsel for the appellant to question the appellee in an attempt to demonstrate that it was her fault which destroyed the marriage, and that the circumstances which led to the separation of the parties should be considered in determining any right to alimony. The chancellor then granted a divorce a vinculo matrimonii to the appellant on the basis of five years uninterrupted separation, but awarded alimony and attorney's fees to the appellee.

On this appeal by the husband, two questions are raised. These are:

(1) Where a divorce is granted on the basis of five years uninterrupted separation of the parties without cohabitation, may the court consider the alleged fault of the wife in determining her right to alimony and in fixing the amount thereof?

(2) Did the chancellor abuse his discretion as to the amount of counsel fees awarded the appellee?

For the reasons stated below, we hold that the chancellor erred in not permitting the appellant to pursue the question of alleged fault on the part of the wife for the purpose of having the court consider it in determining her right to alimony. We further find that the chancellor did not abuse his

discretion in the amount of counsel fees awarded the

appellee. I-FAULT WHICH DESTROYED THE MARRIAGE IS

ONE OF THE FACTORS TO BE CONSIDERED IN

DETERMINING ALIMONY

The precise question was presented to and squarely decided by the Court in Renner v. Renner, 16 Md.App. 143, 157, 294 A.2d 671 (1972). In that case, Dr. Renner obtained a divorce a vinculo matrimonii on the ground that he and his wife had been separated for a period of five years. At the same time, the trial court awarded Mrs. Renner $200.00 a week in permanent alimony. Dr. Renner appealed, contending that the trial judge had erred in refusing to consider the fault which destroyed the marriage and the circumstances which led up to the separation in determining the right to and the amount of alimony awarded his wife.

The statute providing for a 'no fault' divorce after the partieshave lived separate and apart for five years without cohabitation became effective July 1, 1969. Article 16, § 24 of the Maryland Code (Cum.Supp.1971). The statute expressly provides that recrimination 'shall not be a bar to either party obtaining a divorce on this seventh ground.' However, as we noted in Renner, this fact does not 'dispose of the question as to whether or not . . . recrimination shall be considered on the question of alimony.' 16 Md.App. 158, 294 A.2d 679. In Renner, we called attention to the Maryland Court of Appeals' ruling in Foote v. Foote, 190 Md. 171, 57 A.2d 804 (1948), in which that Court held that the fault of the wife must be considered in fixing alimony where the ground for divorce was voluntary separation for eighteen consecutive months. ² See also Hughes v. Hughes, 216 Md. 374, 378, 140 A.2d 649 (1958), where the same point is quite clearly implied in the reasoning of the Court.

After reviewing the contentions of the parties in Renner, supra, 16 Md.App. at 159-160, 294 A.2d at 679, we said that:

'. . . it seems clear to us by analogy to the eighteen month voluntary separation statute, that fault of the wife should be considered in the determination of alimony in cases under the five year statute; otherwise, a wife guilty of deserting her husband, could live with an impecunious paramour, and after five years become eligible to collect alimony from her husband. Surely the legislature in providing that the fault of either of the parties should not bar the other from acquiring a divorce after a separation for a period of five years did not intend that, in the example cited, the adulterous wife should be permitted to collect alimony from her husband. This seems to be the general rule throughout the country. See 34 A.L.R.2d 313. Our view that fault should be considered is further supported by a Court of Appeals decision which held that a wife receiving alimony under an a mensa decree must lose that alimony because of her subsequent adultery. Courson v. Courson, (208 Md. 171, 117 A.2d 850) supra.' (emphasis added)

The appellee wife in Renner argued, however, that in our opinion in Flanagan v. Flanagan, supra, we implied that the fault of the wife is not to be considered on the question of alimony. The appellee makes the same argument in the case at bar. However, as we said in Renner, 'we think the wife reads too much into Flanagan.' We then went on in Renner to analyze our prior holding in Flanagan, point ing out that:

'In that case (Flanagan I) the chancellor denied the wife alimony on the basis that the husband was free of fault. We pointed out that under the five year statute the husband's lack of fault was not a factor in determining the wife's right to alimony or to a divorce. We were careful to point out, however, at page 656, 288 A.2d at page 230, as follows: 'Ergo, a trial court is empowered to grant alimony to a wife free of fault in all cases where it is claimed, needed, and where a divorce is decreed.' (Emphasis added). We also referred to Hughes v. Hughes, supra, and Foote v. Foote, supra, which recited that the fault which destroyed the home should be considered in fixing alimony where divorce was granted under the voluntary separation statute. We hold that recrimination is an available defense to the issue of alimony in a suit for divorce based on the non-fault ground of separation for five years. Accordingly, in granting and fixing the alimony in the instant case, the chancellor was in error for not giving consideration to the fault which destroyed the home.' Id., 16 Md.App. at 160, 294 A.2d at 680.

We reach the same result in this case. It is established that the question of fault which destroyed the home is not material to a determination to grant a decree of divorce on nondulpable grounds, either on the basis of the 18...