Johnson v. Johnson, 167
| Decision Date | 15 July 1953 |
| Docket Number | No. 167,167 |
| Parties | James N. JOHNSON v. Mary B. JOHNSON. |
| Court | Maryland Court of Appeals |
Under the reasoning and holding of Staub v. Staub, 170 Md. 202, 183 A. 605, if Mrs. Johnson had ignored the Florida divorce proceedings and the divorce had been granted ex parte, Maryland would have no jurisdiction to give or continue alimony. In these days of Nevada, Florida, Arkansas, and other prolific divorce States, this puts a separated wife in a real predicament. She is on the horns of a dilemma, having the alternative of submitting to the jurisdiction of a foreign Court, where as an out-of-State defendant, she is under a disadvantage in seeking alimony, or of ignoring the foreign divorce proceeding and losing the alimony granted by her home Court entirely. Under the mores and practices of the times, it is hardly fair for Maryland to put its lady citizens in this predicament because of a narrow, artificial and unrealistic concept and judicial interpretation of alimony.
I say narrow, artificial and unrealistic for this reason. Divorce was unknown under the common law, and is of statutory creation in Maryland. Limited divorces with alimony were granted in England by the Ecclesiastical Courts. Here the Legislature at first granted divorces but the Courts of Chancery assumed jurisdiction of alimony. By what is now Section 14 of Article 16 of the Code, passed in 1777, Courts of equity were expressly given alimony jurisdiction. The Act provided: 'The courts of equity of this State shall and may hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there.' Alimony as known to the Ecclesiastical courts was support granted where there was a divorce a mensa. In 1841, by what is now Section 15 of Article 16 of the Code, the Legislature provided that in all cases where divorces were granted, alimony may be awarded. There is no definition of alimony in the Statutes, and, since
the Act of 1841, in exercising the jurisdiction granted by that Act, the Courts have modelled the support awarded in divorces a vinculo in the image of alimony as it had been known to the Ecclesiastical Courts. It is immediately apparent that the judicial concept of alimony as authorized by the Act of 1841 was illogical because under the ecclesiastical law alimony is support of the wife by the husband as long as they are both living and are married to each other. The limited divorce granted by the Ecclesiastical Courts was nothing more than a legally authorized separation and did not destroy the status of husband and wife; therefore, it was entirely consistent and logical that the husband be required to support the wife even though they were living apart. Since the divorce a vinculo severs the matrimonial status, alimony in the traditional sense cannot rationally be compelled after an absolute divorce.
In reality, the alimony permitted by Section 15 of Article 16 of the Code is a legislative permission for the Court to require a former husband to pay support to his former wife. Indeed, under the holdings of this Court--Emerson v. Emerson, 120 Md. 584, 87 A. 1033, 1036, recognized by Johnson v. Johnson, supra--the support which the Court has required to be paid, may be increased, or decreased, or otherwise controlled long after the marriage has ended, merely because the Court had jurisdiction at the time the divorce was granted. In the present case, the Court had jurisdiction at the time the alimony was awarded to Mrs. Johnson, and it is just as logical to say here that it does not lose that jurisdiction as it is to say that a Maryland Court which grants an absolute divorce and reserves jurisdiction may, years after the couple have ceased to be husband and wife, double, or triple, the amount of alimony originally granted. What I am saying is that there is no magic in the word 'alimony' and the decisions which originally construed Section 15 of Article 16 might well have held that the Courts had jurisdiction to...
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