Johnson v. Johnson, 167

• Decision Date: 12 June 1953
• Docket Number: No. 167,167
• Citation: 97 A.2d 330,202 Md. 547
• Parties: JOHNSON v. JOHNSON.
• Court: Maryland Court of Appeals

Page 547

202 Md. 547

97 A.2d 330

JOHNSON v. JOHNSON.

No. 167.

Court of Appeals of Maryland.

June 12, 1953.

Wilfred T. McQuaid, Baltimore, for appellant.

Paul R. Kach, Baltimore (Karl F. Steinmann, Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a decree of December 23, 1952 dismissing a petition filed by the appellant to obtain a release of his stock in Johnson Motor Lines, Inc. held by the Clerk of Court, under court order, to secure payment of alimony of $100 a week to his former wife and $25 a week to support his infant son. The alimony and support were awarded in a decree of the Circuit Court No. 2 of Baltimore City granting her a divorce a mensa on the ground of desertion on November 15, 1948. By this decree Johnson, a noresident, was also enjoined, subject to further order of court, from disposing of his partnership interest in a local enterprise. At that time the partnership was in process of dissolution and on December 15, 1950 Johnson's interest, amounting to about $51,000, was ordered paid into court to secure the payments of the alimony and support. Under a stipulation of the parties, the court on January 5, 1951 passed a consent decree, subject to further order of court, releasing this sum to Johnson upon condition that he assign and deliver to the clerk of court certain stock in Johnson Motor Lines, Inc., owned by him, having a par value of $28,000. The present book value of this stock is about $225,000.

Meanwhile, on January 18, 1950, Johnson obtained a decree of divorce a vinculo from his wife on the ground of cruelty by a decree of the Circuit Court for Dade County, Florida. Mrs. Johnson did not ask for alimony, but on February 21, 1950 the court passed a supplemental decree declaring that 'nothing in this decree shall be held or construed to relieve the plaintiff in any manner from complying with the support and maintenance provisions of that certain decree rendered by the Circuit Court No. 2 of Baltimore City, State of Maryland, on the 15th day of November, 1948 * * *'. On November 17, 1950, Johnson petitioned the Maryland court to have its decree amended to eliminate the alimony award, in view of the Florida divorce, but his petition was dismissed voluntarily at or about the time of the passage of the consent decree of January 5, 1951.

On May 14, 1951 Mrs. Johnson filed in the lower court an 'amended petition for support and maintenance' reciting that the decree of the Circuit Court for Dade County, dated January 18, 1950 had been appealed by her to the Supreme Court of Florida on the ground that the issues had been decided in the previous Maryland proceeding and were res judicata. That court affirmed without opinion. She asked the Maryland court to increase its maintenance award to provide funds to perfect a petition for certiorari to the Supreme Court of the United States from the Florida decree. It may be noted that certiorari was subsequently denied by the Supreme Court. Johnson v. Johnson, 342 U.S. 941, 72 S.Ct. 550, 96 L.Ed. 700.

On July 30, 1951, the Circuit Court No. 2 of Baltimore City passed a decree that its decree of November 15, 1948 'be modified to increase the maintenance provision' and that Johnson pay $2,058.70 'the costs and expenses incurred and estimated costs to be deposited with the Clerk of the Supreme Court of the United States, in order to perfect * * * plaintiff's petition [for] certiorari.' On appeal to this court the decree was reversed. Johnson v. Johnson, Md., 86 A.2d 520.

It was pointed out in the opinion cited that the husband's domicile in Florida was never questioned and the wife appeared and actively contested the case. The question of 'divisible divorce', discussed in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, and foreshadowed in Esenwein v. Commonwealth, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608, is not presented. In Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748 it was held by the New York Court of Appeals that a divorce decree in Nevada, following a personal appearance, even where the court failed to grant alimony or the wife to seek it, nullified the alimony provisions of a prior judgment of separation obtained by her in New York. It was recognized that the question was one of New York law. In Rodda v. Rodda, 185 Or. 140, 200 P.2d 616, 202 P.2d 638, it was held that even without a personal appearance an absolute divorce obtained by publication had the same effect under Oregon law, although under the Estin case Oregon was not required to give it that effect by the full faith and credit clause of the federal constitution.

In the former appeal we discussed this question and also the validity and effect of the supplemental decree of the Florida court, and said : 'If the Maryland court actually possesses any of the jurisdiction which seems to be reserved to it in the Florida decree, obviously neither the Florida decree nor the full faith and credit clause prevents the Maryland court from exercising such jurisdiction. If, however, under Maryland law the Maryland court has no authority to act as permitted under the Florida decree, then obviously the Florida court has no power to confer jurisdiction upon the Maryland court, and the Maryland court has no right or duty, under the full faith and credit clause or otherwise, to exercise such jurisdiction.' Assuming that the Florida decree was broad enough to comprehend modifications of the maintenance provisions in the Maryland decree, we held that 'In Maryland the court has no authority to make, change or enforce provision for payment by a former husband to his former wife of alimony (except power reserved, expressly or by implication, to modify provision for alimony in a decree for divorce a vinculo) or 'suit money'. Tabeling v. Tabeling, 157 Md. 429, 146 A. 389; Staub v. Staub, [170 Md. 202, 183 A. 605]; Tome v. Tome, 180 Md. 31, 22 A.2d 549. It is immaterial whether the marriage relation was terminated by death, * * * by a Maryland divorce, * * * or by a divorce in another state, * * *.'

Although the case might, perhaps, have been decided on a narrower ground, our decision was rested squarely on the proposition that the alimony provision could not, under Maryland law, survive the dissolution of the marriage by the Florida court. The dissolution was not conditional upon the validity or effectiveness of the supplemental decree. That decree was obviously based on the erroneous assumption that the obligation to pay alimony in Maryland would survive a dissolution of the marriage in Florida. Under the laws of some states the obligation would survive, but we have held...