Komorous v. Komorous

• Decision Date: 01 September 1983
• Docket Number: No. 46,46
• Citation: 56 Md.App. 326,467 A.2d 1039
• Parties: Linda Ann KOMOROUS v. Edward Joseph KOMOROUS. ,
• Court: Court of Special Appeals of Maryland

Page 326

56 Md.App. 326

467 A.2d 1039

Linda Ann KOMOROUS v. Edward Joseph KOMOROUS.

No. 46, Sept. Term, 1983.

Court of Special Appeals of Maryland.

Nov. 9, 1983.

James J. Fitzgibbons, with whom was Joseph C. Roesser, Wheaton on brief, for appellant.

James P. Sullivan, Rockville, for appellee.

Argued before WEANT, BISHOP and ADKINS, JJ.

BISHOP, Judge.

In this domestic relations case, Linda Ann Komorous appeals an order of the Circuit Court for Montgomery County in which the chancellor granted her a monetary award of $2,000.00 without first determining the value of the marital property. Edward Joseph Komorous cross-appeals from the chancellor's refusal on September 23, 1982, to vacate the award of alimony pendente lite granted on January 7, 1981.

Facts

On October 2, 1965, appellant and appellee were married. On March 31, 1980, the Circuit Court of Fairfax County, Virginia granted to the appellee a divorce a vinculo matrimonii. Appellant did not appear in that divorce action. In May 1980, appellee filed in the Circuit Court for Montgomery County a Bill of Complaint for Partition or Sale in Lieu of Partition of Real Property. In June 1980, the appellant filed an Answer to the Bill of Complaint along with a Cross-Bill of Complaint in which she prayed that she be awarded alimony, both pendente lite and permanent, counsel fees, court costs, and expenses of the litigation. In addition to her general prayer for relief, she prayed that the court (a) determine the value of the parties' "marital property"; (b) grant a decree stating her ownership interest in the personal and real property of the parties regardless of how titled, and order a partition or sale in lieu of partition of any jointly owned property; (c) make a monetary award to her after adjusting the parties' rights in the marital property; (d) reduce the monetary award to a judgment in her favor; and (e) grant a prayer for general relief.

On January 7, 1981, the circuit court, following the recommendation of a domestic relations master, ordered the appellee to pay to the appellant monthly alimony of $500.00 and $500.00 as an initial counsel fee. On August 5, 1981, the court sua sponte referred all of the other issues to the domestic relations master for trial. After setting out his findings of fact, the master made the following recommendations:

"1. That the appellee pay to the appellant for her support and maintenance $700.00 per month during the joint lives of the parties or until the remarriage of the defendant, in advance commencing and accounting fifteen days after the defendant vacates the use and possession of premises 1619 Woodwell Road, Silver Spring, Maryland, subject to the further order of Court.

2. That the defendant shall vacate the use and possession of premises of 1619 Woodwell Road, Silver Spring, Maryland, upon the effective date of this order.

3. That the jointly owned real property located at 1619 Woodwell Road, Silver Spring, be sold in lieu of partition, and the net proceeds be equally divided between the parties, subject to the further order of Court.

4. That the appellant be awarded an adjusted monetary judgment against the appellee in the sum of $2,000.00, exclusive of the monetary award to the defendant payable in the future from the federal civil service retirement pension benefit payable to the appellee.

5. That the appellant be awarded an adjusted monetary award of a one-third portion of the appellee's future federal civil service pension benefits.

6. That the appellee pay to the appellant's attorney fees in the sum of $5,800.00, and that appellant pay the costs of these proceedings."

On August 31, 1982, the court heard oral argument on appellee's exceptions to the master's report. No testimony was taken. On October 29, 1982, the court issued the order appealed from which (1) reduced the monthly alimony from $700.00 to $500.00; (2) awarded the appellant "an adjusted monetary judgment against" the appellee in the amount of $2,000.00 and (3) reduced the attorney's fee to be paid by appellee to appellant's attorney from $5,800.00 to $2,000.00.

I.

A Monetary Award Without a Determination of the Value of the

Marital Property

Md.Ann.Code, Courts and Judicial Proceedings Article, Section 3-6A-02, provides:

"A Maryland court may exercise the powers conferred by this subtitle after a divorce or annulment has been granted by a court of a foreign jurisdiction, if one of the parties was domiciled in this State when the foreign proceedings were commenced, and the foreign court lacked or did not exercise personal jurisdiction over the party domiciled in this State or jurisdiction over the property at issue."

Section 3-6A-05(b) provides:

"The court shall determine the value of all marital property. After making the determination, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property...."

The Court of Appeals and this Court have held that this language means exactly what it states. Deering v. Deering, 292 Md. 115, 121, 437 A.2d 883 (1981); Grant v. Zich, 53 Md.App. 610, 614-15, 456 A.2d 75 (1983), cert. granted, 296 Md. 110 (1983); Ayars v. Ayars, 50 Md.App. 93, 97, 436 A.2d 490 (1981).

The Master found that ten-thirteenths (10-13th) of appellee's Federal Civil Service Pension is marital property. Ohm v. Ohm, 49 Md.App. 392, 431 A.2d 1371 (1981); Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981). Although appellee argues that the pension was evaluated and allocated in accordance with Grant and Deering, supra, nowhere in the record does it appear that the pension was evaluated. There is no doubt that the Master set out the formula upon which distribution of the parties' interests in the pension were to be determined; however, the value of the pension was never either judicially determined or considered before the monetary award of $2,000.00. We hold that this was reversible error. Deering, Grant and Ayars, all supra.

II.

An Alimony Pendente Lite Award after a Foreign Divorce A

Vinculo Matrimonii

After conducting a hearing, the Domestic Relations Master recommended that Mr. Komorous pay his former spouse $500.00 initial counsel fees and $500.00 per month alimony pendente lite. Mr. Komorous filed exceptions to the Master's report, arguing that the circuit court was not empowered to award alimony pendente lite where the parties were divorced prior to the prayer for alimony. On January 9, 1981, the court ordered the exceptions stricken on the basis that they were filed too late, and awarded the pendente lite alimony recommended by the Master.

On cross-appeal, Mr. Komorous contends that alimony pendente lite exists solely to enable a needy spouse to carry on a suit for divorce, and that since the parties were already divorced when Mrs. Komorous filed her cross-bill, the chancellor lacked jurisdiction to grant such an award. Restated, the question is whether, following dissolution of a marriage by a foreign ex parte divorce decree, the Maryland domiciliary spouse, over whom the foreign court lacked personal jurisdiction, may obtain temporary alimony from a Maryland court pending adjudication of her suit for permanent alimony.

Under the Supreme Court's interpretation of the Full Faith and Credit Clause of the federal constitution, Maryland is obliged to recognize a valid ex parte foreign divorce, Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), but may nonetheless protect the domiciliary's interests by granting her alimony or support. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957). Maryland case law has followed a policy trend toward exercising its power to protect the domiciliary spouse. The policies declared by the Court of Appeals justify our extending this trend to protect the right to alimony pendente lite following an ex parte foreign decree.

The evolution of the law in this area has been elaborated elsewhere and need only be summarized here. See generally Note, "Divisible Divorce in Maryland--Does it Exist?" 30 Md.L.Rev. 63 (1970); Colburn v. Colburn, 20 Md.App. 346, 316 A.2d 283 (1974); Altman v. Altman, 36 Md.App. 538, 373 A.2d 1296 (1977) aff'd. 282 Md. 483, 386 A.2d 766 (1978).

Since the colonial era, Maryland courts have exercised the inherent authority to grant alimony. Thomas v. Thomas, 294 Md. 605, 613-14, 451 A.2d 1215 (1982); Blumenthal v. Blumenthal, 258 Md. 534, 539, 266 A.2d 337 (1970). In 1777, the Legislature confirmed this power with a provision, later recodified into Cts. & Jud.Proc., section 3-603(a), which reads: "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." Acts of February 1777, ch. 12, § 14; Colburn v. Colburn, 20 Md.App. 346, 355, 316 A.2d 283 (1974).

The ecclesiastical courts, however, could only grant an a mensa divorce, which permitted separation, but did not dissolve the marriage. Alimony was consequently regarded as enforcement of the husband's duty to support his wife while the marriage subsisted. Clayton v. Clayton, 231 Md. 74, 76, 188 A.2d 550 (1963); Minner v. Minner, 19 Md.App. 154, 155, 156 n. 3, 310 A.2d 208 (1973) (citing 1 Blackstone's Commentaries on the Law, ch. 15, at 189 (Gavit ed.)).

In 1841, the Legislature authorized courts of chancery to grant divorces a vinculo matrimonii and award alimony therein. Acts of 1841, Ch. 262, codified as Art. 16, §§ 24, 25 (1981 repl. vol.). Thomas v. Thomas, 294 Md. 605, 611, 451 A.2d 1215 (1982); Wallace v. Wallace, 290 Md. 265, 272, 429 A.2d 232 (1981). Interpreting the statute, the Court of Appeals said that the Legislature intended to authorize absolute divorce, but "intended to provide alimony of the same character and limitation as the alimony the Courts had so long dealt with." Emerson v. Emerson, 120 Md. 584,...