Gunter v. Gunter

• Decision Date: 01 November 1946
• Docket Number: 14.
• Citation: 49 A.2d 454,187 Md. 228
• Parties: GUNTER v. GUNTER et al.
• Court: Maryland Court of Appeals

49 A.2d 454

187 Md. 228

GUNTER v. GUNTER et al.

No. 14.

Court of Appeals of Maryland

November 1, 1946

Appeal from Circuit Court of Baltimore City; Emory H. Niles, Judge.

Suit by Howard Gunter against Elizabeth H. Gunter and Catherine Kelly for partition by sale of certain realty. From a decree dismissing the bill, the complainant appeals.

Decree reversed, and case remanded.

Z Townsend Parks, Jr., of Baltimore (Howard C. Bregel, of Baltimore, on the brief), for appellant.

Avrum K. Rifman, of Baltimore (Albert H. Frankel, of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

On November 20, 1945, the appellant in this case filed his amended bill of complaint in the Circuit Court of Baltimore City seeking partition by sale of the leasehold property No. 1613 Clarkson Street in Baltimore City. The respondents filed answers and, after hearing, the chancellor dismissed the bill. The facts in the case are not in dispute.

The property in question, stipulated to be worth $1,500, was acquired by Howard H. Gunter and Elizabeth H. Gunter, his wife, as tenants by the entireties, on April 12, 1921, some years after their marriage. It was occupied as their residence for many years. On February 9, 1943, by decree of the Circuit Court of Baltimore City, Elizabeth H. Gunter was divorced a vinculo matrimonii from Howard H. Gunter on the ground of desertion and abandonment. The decree provided that Howard H. Gunter 'pay unto the said Elizabeth H. Gunter the sum of eleven ($11) dollars per week as permanent alimony for her maintenance and support and he shall, in addition thereto, pay all taxes and ground rent on property no. 1613 Clarkson Street in the City of Baltimore.' These payments were fixed by the court, upon consideration of the current earnings of the husband and not by agreement of the parties. There was no appeal from that decree, and thereafter the wife continued to occupy the premises.

On August 29, 1944, Elizabeth H. Gunter conveyed to a straw man an undivided one half interest in 1613 Clarkson Street, who in turn reconveyed that interest to Elizabeth H. Gunter for life, with full power to sell, mortgage, lease, will or encumber the estate conveyed, including the life estate and remainder, with remainder to her daughter, Mrs. Catherine Kelly.

At the time of the hearing on the bill for partition, the appellant was about twelve weeks in arrears in his weekly payments of alimony, and was also in arrears in the payment of taxes and ground rent on the property for the year 1945 amounting to $54.86 and $25 respectively. It was brought out in the testimony that a short time before the hearing he had petitioned the Circuit Court for reduction of his alimony payments, on the ground of decreased earnings, but the court deferred action thereon pending the final determination of the partition case.

The chancellor, in his opinion filed in this case, recognized that the appellant had an interest in the property in question, but laid stress on the fact that he was in default under another order of the same court, and had not 'shown any reduction in earnings sufficient to justify his stopping payment'. The chancellor also expressed the view that the divorce decree 'certainly implies that the defendant shall have the right to live in the house'. The case comes here upon his decree dismissing the amended bill.

It is virtually conceded that the effect of the decree of divorce a vinculo was to convert the tenancy by the entireties into a tenancy in common. Reed v. Reed, 109 Md. 690, 72 A. 414, 130 Am.St.Rep. 552; Meyers v. East End Loan & Savings Ass'n, 139 Md. 607, 116 A. 453. In the absence of fraud or undue influence the Courts will not inquire into the contributions of the parties prior to the joint acquisition, or attempt an apportionment. Brell v. Brell, 143 Md. 443, 122 A. 635; Reed v. Reed, supra. The general rule is also recognized that 'by express provision of our chancery statute, any tenant in common has the right to secure separate enjoyment of his interest either by partition or by sale and division of the proceeds. Code 1939, art. 16 sec. 159.' Cook v. Hollyday, Md., 45 A.2d 768, 771. See also Birckner v. Tilch, 179 Md. 314, 325, 18 A.2d 222. Unless there was something in the decree of divorce of continued to confer a vested right of continued occupancy upon the wife, it would seem that the relief sought should have been granted.

The nature and limitations of an alimony award were fully discussed by this Court in the recent case of Dougherty v. Dougherty, Md., 48 A.2d 451, 457: 'Under the law of this State no allowance to a wife is considered as alimony which does anything more than provide for the payment of money at stated periods for her support during the joint lives of the parties as long as they are separated. The equity court, which awards alimony in the manner established by the English ecclesiastical courts, Code 1939, art. 16,§ 14, has no power, unless conferred by the Legislature, to transfer the property of either spouse to the other, or otherwise dispose of it. We have no statute in Maryland authorizing the court to adjust the property rights of the parties in a suit for divorce, except to award to the wife such property or estate as she had when married. Code 1939, art. 16, § 41; Hall v. Hall, 180 Md. 353, 24 A.2d 415.' In the case of Nicodemus v. Nicodemus, Md., 48 A.2d 442, 446, 447, this court said: 'No questions are before us in these cases with respect to the Monkton Farm, which is held by the parties as tenants by the entireties. In such...