Kapneck v. Kapneck

• Decision Date: 06 May 1976
• Docket Number: No. 836,836
• Citation: 356 A.2d 572,31 Md.App. 410
• Parties: Rosa Maria KAPNECK v. Philip R. KAPNECK.
• Court: Court of Special Appeals of Maryland

Page 410

31 Md.App. 410

356 A.2d 572

Rosa Maria KAPNECK v. Philip R. KAPNECK.

No. 836.

Court of Special Appeals of Maryland.

May 6, 1976.

Certiorari Denied July 15, 1976.

Ferdinand J. Mack, Rockville, with whom were Shadoan & Mack, Rockville, on the brief, for appellant.

James J. Cromwell, Rockville, with whom were Clark & Cromwell, P. A., Silver Spring, on the brief, for appellee.

Argued before ORTH, C. J., and MENCHINE and MASON, JJ.

ORTH, Chief Judge.

This appeal calls for us to examine the authority of a court of equity to grant injunctive relief with respect to its jurisdiction as to divorce and alimony ¹ and custody and support of a child. ² The examination is to be made in the light of Maryland Rule BB71, § c and a mandate of Courts Art. § 3-603(a). Rule BB71, § c reads: 'An injunction in an action for divorce, alimony, support of wife ³ or child, custody of child or annulment of marriage shall not be governed by this Subtitle.' ⁴ The statutory mandate referred to declares: 'The court shall hear and determine a case of alimony in as full and ample manner as such case could be heard and determined by the Ecclesiastical Courts of England.'

On 11 June 1975 the Circuit Court for Montgomery County, sitting as a court of equity, issued an ex parte pendente lite injunction in an action pending before it whereby Rosa Maria Kapneck (Wife) sought a decree of divorce from Philip R. Kapneck (Husband), alimony, custody and support of minor children, counsel fees and money. ⁵

On 11 June 1975 Wife filed a verified motion for an order enjoining Husband 'from harassing (Wife) and the minor children of the parties. . . .' See Rule 370, § a 4. The motion set out in detail grounds for the requested order. It was asserted that the house in which the parties lived, and all personal property therein except Husband's clothing and personal effects were the property of Wife. ⁶ The same day the chancellor 'upon consideration of the verified motion of (Wife), Exhibits 1-6 ⁷ and the points and authorities in support thereof, and the record herein,' issued an ex parte pendente lite injunction. Husband was enjoined from entering the home without written permission of Wife, from conversing with her by telephone, from threatening her, from touching or assaulting her, and from communicating with her concerning the divorce action except through his attorney. Husband could move for a modification of the order on 10 days notice. On 24 June, Husband moved to vacate and dissolve the injunction and Wife promptly opposed that motion. The chancellor granted Husband's motion:

'Upon consideration of the Motion of (Husband) to Vacate and Dissolve Ex Parte Pendente Lite Injunction issued by this Court on June 11, 1975, and the Points and Authorities in support thereof, it is by the Circuit Court for Montgomery County, Maryland, Sitting as a Court of Equity, this 11th day of July, 1975,

ORDERED, that the operation of the Ex Parte Pendente Lite Injunction dated June 11, 1975, be and the same is hereby dissolved and vacated.'

On 6 August 1975 Wife noted an appeal from the order of 11 July 1975. Courts Art. § 12-303(c)(1). ⁸

Although 'the Inhabitants of Maryland are entitled to the Common Law of England,' ⁹ the law of divorce did not come here by that means, because it had no common law foundation. W. T. Nelson, in his historical research for the original edition of his work on divorce and annulment, found that 'save for the reign of Henry VIII, the church, in England, from a very remote period extending perhaps even before the reign of Edward the Confessor, kept a close watch upon matrimonial affairs upon the theory that marriage was a sacrament and that it had general control of all things pertaining to the good of the soul. To such extent as the ecclesiastical courts would grant any relief, they followed their conscience and religious tenets rather than precedents. They kept records only as they saw fit, and their decisions were rarely reported.' 1 W. T. Nelson, Divorce and Annulment (2nd ed., 1945) § 1.01, n. 1, hereinafter cited as Nelson. The courts of common law and chancery saw fit to permit this situation to continue. 'Not until 1809 was anything resembling a modern 'divorce court,' with decisions fairly consistently reported, set up in England; and that was still not a court of law or chancery, but one of the ecclesiastical courts specially designated for the purpose.' In England '(j) urisdiction of matrimonial affairs continued to be ecclesiastical until the establishment, in 1870, of the 'probate, admiralty and divorce court,' since which time the subject has been one of lay jurisdiction and handled in a manner similar to that with which we are familiar in most states of the Union.' The church did not recognize and absolute dissolution of an originally valid marriage. Thus it was that in England, and in the American colonies and early states, absolute divorces were obtainable only by act of parliament or of the legislature or equivalent legislative assembly. Church policy precluded the ecclesiastical courts from granting absolute divorces; they granted legal separations (divorces a mensa et thoro) and under certain circumstances declared marriages wholly void. Some of the American colonies and states, including Maryland, followed this lead. ¹⁰ 'From the earliest times in this State, divorces were granted by, and emanated from, the legislature . . ..' Courson v. Courson, 213 Md. 183, 186, 129 A.2d 917, 919 (1957). By Acts 1841, ch. 262, ¹¹ the legislature granted jurisdiction of all divorce actions to the courts of equity of this State. 'It was thereafter held that these enactments did not preclude the legislature from granting divorces, Wright v. Wright, 2 Md. 429, 450, but by Sec. 33 of Art. 3 of the Maryland Constitution, the legislature is now prohibited from so doing.' ¹² Id.

Unlike the granting of an absolute divorce, power to grant alimony has always been regarded as judicial, not legislative. '(A)n attempt by the legislature to grant alimony was held to be a judicial function and therefore unconstitutional. Crane v. Meginnis, 1 Gill & J. 463, 474 (1829).' Courson v. Courson, supra, 213 Md. at 186, 129 A.2d at 918. 'Hence, though determination of such matters (as compulsory support and the settlement of property rights between husband and wife) is now commonly incident to divorce proceedings, adjudications with respect thereto are ordinary functioning of the courts for which there is no difficulty in fiding a proper historical and common-law background.' Nelson, § 1.01. 'So, at the present time and for many years past in Maryland, the jurisdiction to hear and determine questions of divorces and alimony, both temporary and permanent, is, and has been, vested in the courts of equity in this State.' Courson v. Courson, supra, 213 Md. at 186, 129 A.2d at 919. ¹³

As we have seen, the General Assembly declared in 1841 that jurisdiction of an action for divorce, alimony, or annulment of marriage was in a court of equity and the statute has survived as Courts Art. § 3-603(a). 603(a). The Court of Appeals said in Murray v. Murray, 134 Md. 653, 657, 107 A. 550, 551 (1919): 'It is by statute that the jurisdiction exercised by the courts of equity in this state, in divorce cases, is conferred upon them, which statute likewise limits and prescribes the jurisdiction so conferred.' Nelson elaborates on this as a general proposition. 'The power of the courts over divorce suits is derived entirely from the statutes, and is wholly dependent thereon. For example, only such judgments may be entered as are authorized by statute, and all the legislative requirements must be fulfilled to give the court jurisdiction. Not only must the statutes be strictly complied with, but they are also, usually, rather strictly construed.' Nelson, § 1.02. Ordinarily, therefore, to the extent that the proceedings are governed by statutes particularly relating thereto, such statutes are controlling and whether the action is to be regarded as at law or in equity becomes immaterial. 'In some states, statutes expressly classify divorce proceedings as equitable, or provide that they are to be governed by equity practice; in which event, of course, the statute is controlling, as the legislature unquestionably has power to place its own classification upon the proceedings.' Nelson, § 1.03. Statutes in most states usually refer practice in divorce cases to equity practice or that in civil actions generally, ¹⁴ so that the extent to which practices of the English ecclesiastical courts might be resorted to by way or precedent is now rarely of practical interest. Nelson, § 1.05. Not so in Maryland, however. Courts Art. § 3-603(a), after providing that a court of equity has jurisdiction in domestic matters, declares: 'The court shall hear and determine a case of alimony in as full and ample manner as such case could be heard and determined by the Ecclesiastical Courts of England.' ¹⁵ Read literally, this may be construed as applying only to alimony. The Court of Appeals, however, over a century ago, used this reference to the 'Ecclesiastical Courts of England' to state that in Maryland divorce practice is founded on the practice of the ecclesiastical courts of England. 'The court in such case sits, not in the exercise of its general and ordinary equitable jurisdiction, but as a Divorce Court; and must be governed by the rules and principles established in the Ecclesiastical Courts in England, wherein a similar jurisdiction has been exercised, so far as they are consistent with the provisions of the Code. * * * In respect to the mode in which Courts of Equity shall exercise jurisdiction in divorce cases, and the principles by which they are to be governed, the Code is silent. But from the nature of the jurisdiction itself, it has always been considered that the decisions of the English Ecclesiastical Courts, in similar cases, may properly be referred to as...