Flanagan v. Flanagan
| Decision Date | 08 March 1972 |
| Docket Number | No. 487,487 |
| Citation | 14 Md.App. 648,288 A.2d 225 |
| Parties | Bonnie J. FLANGAN v. Raymond J. FLANAGAN. |
| Court | Court of Special Appeals of Maryland |
William W. Grant, Oakland, with whom was Mary Ellen Brooke, Baltimore, on the brief, for appellant.
John F. Lillard, Jr., College Park, for appellee.
Argued before ANDERSON, ORTH and GILBERT, JJ.
Raymond J. Flanagan, (husband), sued Bonnie J. Flanagan, (wife), in the Circuit Court for Prince George's County for a divorce a vinculo matrimonii on the non-culpatory ground of five years uninterrupted separation. Article 16, § 24. The wife filed a general denial to the husband's complaint and she affirmatively, by way of a cross-bill, sought a decree for separate maintenance, alimony pendente lite and counsel fees, on the ground of the husband's desertion. The wife requested that the matter be heard on the question of alimony pendente lite. However, the matter was referred to a Master in Chancery who heard the testimony on the merits, over strenuous objection, and made his recommendations to the Chancellor. The wife filed timely exceptions to the Master's report. The husband's solicitor sought and obtained an order that the exceptions not be heard de novo, but that the matter be disposed of on the record taken before the Master. Subsequently the Chancellor overruled the exceptions and adopted the report of the Master in toto and signed a decree giving effect to those recommendations.
The Master's report recommended, inter alia, that (1) the husband's prayer for divorce be granted; (2) the cross-bill of the wife be dismissed; (3) that the wife be denied alimony. The report was silent as to counsel fees for the wife's solicitors. The aggrieved wife filed an appeal to this Court alleging:
1. That in accordance with the provisions of the Rules then in effect in the Seventh Judicial Circuit, the Master had no jurisdiction to hear a contested divorce case and a contested right to alimony.
2. That the Chancellor erred in holding, on the basis of the recommendations of the Master, that the appellant had not established a right of alimony based on desertion.
3. That it was error not to allow the wife to amend her cross-bill so as to allege adultery.
4. That the Chancellor erred in not awarding alimony pendente lite and permanent alimony.
5. That the Chancellor erred in overruling the wife's exceptions to the Master's report and in issuing a decree without any notification to the wife of the court's order overruling the exceptions, or of its decree.
6. That the court erred in not allowing counsel fees to the wife's solicitor.
The parties were married in Winchester, Virginia, on January 21, 1950. No children were born as a result of the union. The husband at the time of the marriage, and for some time thereafter, was an officer in the United States Air Force, and he and his wife lived together at various military bases. The husband and wife purchased a residence in Grantsville, Garrett County, Maryland, that had formerly belonged to the wife's family. The purpose of the purchase was to assure the parties a home at the time of the husband's retirement from the service. The husband's last duty station before retirement was at Andrews Field, Prince George's County, Maryland. The wife was working in the District of Columbia in graphic arts when the husband retired in August of 1962. At that time the husband moved to Grantsville and the wife continued to work in the Washington area and went to Grantsville on weekends.
The testimony established that the husband's net retirement pay was $447.00 per month. The wife's testimony was that this sum was not sufficient to sustain both the husband and wife, and the wife was required to work in order to support herself. Her income as of the end of 1964 was $83.00 per week, gross. In December of 1964, the wife became ill and was required to resign her employment and move to Grantsville. The husband, some time in late 1964, but before the wife moved to Grantsville, returned to Prince George's County and obtained employment with the United States Census Bureau. We are unable to determine the husband's precise income at the time of the hearing because he correlated the net retirement pay from the Air Force with gross earnings of $10,000.00 per year from the Census Bureau. It is safe to say, however, that the husband's gross income was in excess of $15,000.00 per year.
The testimony of the husband and of his witness demonstrated that the husband was living with a woman named 'Ruth,' and had been so living for a period of a few years prior to the filing of the bill and cross-bill herein. When the husband moved to the Washington metropolitan area, he kept his address a secret from his wife and required her to contact him through a post office box.
The husband, prior to the decree of divorce, continued to make the payments on the mortgage of the house in Grantsville and to pay the taxes and utilities thereon. He also voluntarily provided to the wife the sum of $50.00 per month living expenses. The wife's testimony was that her expenses were $385.00 per month and that she had no income. At oral argument, we were advised that the payment of the $50.00 per month ceased upon the signing of the decree and that the wife was now receiving public assistance.
The testimony before the Master failed to establish the corroboration necessary to sustain the wife's cross-bill on the ground of desertion and the Master refused to allow the wife to amend her cross-bill so as to allege adultery.
Appellee filed a motion to dismiss the appeal on the ground that it was 'specious and without merit.' We disagree and can find no justification for invoking Rule 1035 or 1036 and shall accordingly deny the motion to dismiss.
Rule S 80.b. of the Seventh Judicial Circuit provided: 1
'The Clerk of Court shall refer to the Master for Domestic Relations Causes the following actions in which a hearing has been requested: a Bill or Petition (i) for alimony pendente lite; or for support, custody and visitation of children pendente lite, or for initial counsel fees; (ii) for modification of existing orders or decrees to increase or decrease the amount of alimony or child support, or to change the custody of minor children or provisions for child visitation; (iii) for divorce, annulment or separate maintenance in which there is a decree pro confesso or where the action is at issue as a result of an answer having been filed but in which there is no actual contest and where the parties have not specifically requested a hearing before the Court; (iv) originally seeking separate maintenance, alimony or child support wherein it is the amount thereof and not the right thereto that is actually contested.'
We think that under the factual situation here present, there was an 'actual contest' within the meaning of the Rule. We believe the words 'actual contest', as embodied in Rule S 80.b., are used to distinguish those instances where a general denial is filed pro forma from those in which a general denial is filed and the plaintiff's cause is really challenged. Here, the general denial of the appellant, coupled with her cross-bill for separate maintenance (which was contested by the appellee) was sufficient to place the Clerk of the Court, as well as the Master, on notice of such an actual contest. Counsel for the appellant advised the Master on the day of, but prior to, the taking of testimony, that '* * * we are contesting the divorce.' This statement gave the Master additional notice. We think the Rule of the Seventh Judicial Circuit was violated and that the Master was without jurisdiction to hear the controversy.
Having determined that the Master lacked jurisdiction to hear the contested divorce case, ordinarily we would stop here and remand for further proceedings. However, we deem it advisable to invoke Rule 1085 and discuss for the further guidance of the trial court the other questions involved in order 'to avoid the expense and delay of another appeal.'
Article 16, § 24 provides:
The other provisions of the seventh ground not herein quoted were held to be unconstitutional by this Court. Buckheit v. Buckheit, 10 Md.App. 526, 272 A.2d 54 (1970), cert. denied March 9, 1971. Our interpretation of the seventh ground set out in § 24 leads us to the conclusion that whether the appellee had committed the marital offense of adultery or desertion is of little, if any, consequence here. We think the legislative purpose implemented by the enactment of the seventh ground for divorce under Article 16, § 24, was to preclude a party from perpetually preventing his or her spouse from obtaining a decree of divorce a vinculo matrimonii.
The appellant's cross-bill alleging desertion, an allegation which the record discloses she failed to sustain, or the revelation in the testimony of the appellee's adultery, are both grounds for divorce if proven, but are not in law sufficient to defeat the non-culpatory five year uninterrupted separation. Assuming that the husband had proven his cause of action, and further assuming that the wife had proven desertion or adultery, it would be incongruous to ban recrimination as a defense under the five year statute, and at the same time allow the wife to prevail. Such action would defeat the legislative purpose. The language of the seventh ground that 'res adjudicata' and recrimination 'shall not be a bar to either party obtaining a divorce on...
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