Hughes v. Hughes, 200

• Citation: 216 Md. 374,140 A.2d 649
• Decision Date: 25 April 1958
• Docket Number: No. 200,200
• Parties: Samuel L. HUGHES v. Mattie HUGHES.
• Court: Maryland Court of Appeals

Page 374

216 Md. 374

140 A.2d 649

Samuel L. HUGHES v. Mattie HUGHES.

No. 200.

Court of Appeals of Maryland.

April 25, 1958.

Eugene Hettleman and Joseph Hettleman, Baltimore, for appellant.

William D. Schaefer, Baltimore, for appellee.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and JAMES MACGILL, Special Judge.

HENDERSON, Judge.

This appeal is from an order passed on October 10, 1957, dismissing a petition, filed July 29, 1957, for rehearing and to revise a decree for alimony passed on July 9, 1957. The controversy was before this Court in the case of Hughes v. Hughes, 213 Md. 452, 132 A.2d 119. In that case the husband appealed from a decree passed on January 14, 1957, dismissing his bill for a divorce a vinculo on the ground of voluntary separation, and awarding permanent alimony of $15.00 a week to the wife on her amended cross-bill, which alleged adultery and desertion, but did not pray a divorce. The award of alimony was predicated upon a finding that the wife had established adultery on the part of the husband. We noted that the husband did not contest the allowance or amount of alimony, a concession that was made in this Court by his counsel. The husband had admitted in the court below that he had been guilty of adultery, and the evidence showed that he had been openly living with another woman and had had numerous children by her, after he separated from his wife thirty years ago. He offered no evidence in opposition to the wife's claim for $15 a week alimony. There was testimony that she was in bad physical condition, and, in the opinion of her doctor, unable to work.

Counsel represented to us in the previous appeal that the husband's sole motive in taking the appeal was to clear the way for the legitimization of his issue, barred by the wife's action in amending her cross-bill to strike out the prayer for divorce. We held that the testimony as to the voluntary character of the separation was sufficiently corroborated, and that he was entitled to a divorce on this ground. We affirmed the award of alimony. Upon remand, the Chancellor signed a decree granting the divorce to the husband as directed, and ordered the payment of $15.00 a week alimony. Other orders holding him in contempt for the nonpayment of past due alimony, and declining to reduce the amount of alimony at that time, are not contested here.

The petition for rehearing alleged that the decree of July 9, 1957, awarding alimony, had not become enrolled, and that he was entitled to a rehearing under Rule 690 of the Maryland Rules. We think Rule 690 has no application here. We affirmed the award of alimony passed on January 14, 1957, and the order of July 9, 1957, merely confirmed the previous award, pro forma and in accordance with the mandate. It may be regarded as surplusage.

In Matysek v. Matysek, 212 Md. 44, 54, 128 A.2d 627, 633, we said in regard to voluntary separation that the divorce statute 'manifests an intention to permit the marriage relationship to be terminated in law, as well as in fact, without regard to fault.' Thus, recrimination is not a defense in a suit based on voluntary separation. On the other hand, a wife may be entitled to alimony, even where a divorce on the ground of voluntary separation is granted to the husband. Foote v. Foote, 190 Md. 171, 180, 57 A.2d 804. Of course, the amount of alimony may be subsequently challenged on the ground of a change in the financial status of the parties. Cohn v. Cohn, 209 Md. 470, 478, 121 A.2d 704; Brown v. Brown, 204 Md. 197, 209, 103 A.2d 856. But the right to alimony cannot ordinarily be relitigated, certainly not upon a motion for rehearing filed after the decree is enrolled.

It is contended, however, that even an enrolled decree, awarding alimony, may be subsequently attacked on the ground that the wife has been guilty of adultery, as an exception to the general rule that the revisory power of the Court is limited to cases of fraud, mistake or irregularity under Rule 625 of the Maryland Rules. The petition in question sought a revision of the decree on the ground that the wife had been guilty of adultery and had lived with another man 'for many years' after the separation thirty years ago. It was not alleged that she had committed adultery since the time of the trial. The record of the previous appeal shows that, according to her...