Leberstein v. Leberstein

• Decision Date: 08 February 1946
• Docket Number: 77.
• Parties: LEBERSTEIN v. LEBERSTEIN.
• Court: Maryland Court of Appeals

45 A.2d 753

186 Md. 25

LEBERSTEIN v. LEBERSTEIN.

No. 77.

Court of Appeals of Maryland

February 8, 1946

Appeal from Circuit Court No. 2 of Baltimore City; Eugene O'Dunne, Judge.

Suit for divorce by Marian J. Leberstein against Martin J Leberstein. Decree for complainant, and from an order overruling defendant's demurrer to complainant's petition for recovery of a balance due for the support of the parties' minor child under the decree, defendant appeals.

Appeal dismissed.

Isidor Roman, of Baltimore, for appellant.

Z Townsend Parks, Jr., of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

Marian J. Leberstein filed a bill for divorce against her husband Martin J. Leberstein, on November 17, 1925, on the ground of adultery. Answer was filed, testimony taken before an examiner, the case was submitted for decree and referred to a Master, and finally on October 7, 1926, the Court entered a decree divorcing the complainant a vinculo from the defendant. In that decree custody of the minor child of the parties (who was then four years old) was awarded to the complainant; the defendant was charged with the maintenance and support of said child, and ordered to 'pay therefor, to said complainant, through the Prisoners' Aid Association, the sum of eight dollars per week, all subject to the further orders of this Court'.

On April 25, 1945, Marian J. Leberstein filed a petition in the case, reciting the decree and alleging that 712 weeks had elapsed since the decree of October 7, 1926, up to the time that the minor child became self-supporting, and that the defendant paid on account of said decree only the sum of $125, leaving a balance of $5,571 unpaid. The petition prayed a 'judgment' in that sum, and for other and further relief. A show cause order was signed on this petition, and the defendant appeared and filed a demurrer to the petition. After hearing, the Court overruled the demurrer, with leave to answer within ten days. From that order, the defendant has appealed to this Court.

We think that the order appealed from was interlocutory, and that the appeal is premature and should be dismissed. This was not a new bill, or supplemental bill based upon new matter. Compare Borchert v. Borchert, Md., 45 A.2d 463. The defendant's liability to support was adjudicated in the original decree. The proceedin was simply for the purpose of converting overdue installments under the original decree into a lump sum so as to become a lien upon the property of the defendant and to facilitate execution or other action under Section 211, Art. 16 of the Code. As was said in Marshall v. Marshall, 164 Md. 107, 116, 163 A. 874, 877: 'Until the passage of an order determining the amount due and authorizing execution, the decree would not become a lien on the defendant's property, but would only have the effect of an adjudication of liabilities thereafter maturing at stated periods.' See also Bushman v. Bushman, 157 Md. 166, 174, 145 A 488 and Dickey v. Dickey, 154 Md. 675, 680, 141 A. 387, 58 A.L.R. 634. The cases of Kriedo v. Kriedo, 159 Md. 229, 150 A. 720, and Carter v. Carter, 156 Md. 500, 144 A. 490, are obviously not in point, since they did not involve this type of proceeding.

The order overruling...