Marshall v. Marshall

• Court: Maryland Supreme Court
• Writing for the Court: URNER, J.
• Citation: Marshall v. Marshall, 164 Md. 107, 163 A. 874 (Md. 1933)
• Decision Date: 19 January 1933
• Docket Number: 49.
• Parties: MARSHALL v. MARSHALL.

163 A. 874

164 Md. 107

MARSHALL v. MARSHALL.

No. 49.

Court of Appeals of Maryland

January 19, 1933

Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump Judge.

Suit by Emma A. Marshall against J. William Marshall. From a decree rescinding an order authorizing attachment of defendant's interest in an estate for payments due plaintiff under a divorce decree, she appeals.

Reversed and remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Clarence K. Bowie and Edward H. Burke, both of Baltimore, for appellant.

D. K Este Fisher, of Baltimore, for appellee.

URNER J.

This case is governed by the principle of the decisions in Spear v. Spear, 158 Md. 672, 149 A. 468; Dickey v. Dickey, 154 Md. 675, 141 A. 387, 388, 58 A. L. R 634; Newbold v. Newbold, 133 Md. 170, 104 A. 366; and Emerson v. Emerson, 120 Md. 584, 87 A. 1033. It was determined in those cases that a decree of divorce which, in accordance with an agreement of the parties, made provisions for the wife beyond the period and scope of alimony allowances, was not subject to later rescission or modification, with respect to such provisions, on the husband's petition.

The decree in the present case, after granting the wife's application for an absolute divorce, and awarding to her the custody of the two infant children, provided that the defendant pay to the plaintiff, until her "death or remarriage," the sum of $50 per month, "for the support and maintenance of herself and the care, education, maintenance and support" of the children, and that, upon her "death or remarriage," the defendant "shall pay the sum of twenty-five dollars per month to each of his said children" until their death or marriage, respectively, "at which time" such payments shall cease. It was further provided by the decree that the defendant convey his house and lot, in Baltimore, to the plaintiff and the two children "for their use and benefit for a period no longer than their respective unmarried lives, upon such terms and conditions as shall be agreed upon" by the parties to the suit. The conveyance was made in pursuance of the decree, which was passed on November 23, 1905, and payments under its terms were made for a period of several years, but were thereafter discontinued because of the defendant's removal from Maryland and his inability to continue compliance with the decree's requirements. Recently he has become entitled to an interest, valued at approximately $20,000, in a personal estate awaiting distribution in the city of Baltimore. An attachment against the defendant's interest in that estate was issued by the plaintiff, as authorized by an order of the lower court, passed at her instance, ascertaining the amount due under the original decree and directing execution. That order was subsequently rescinded, after a hearing, by a decree which also disallowed the plaintiff's claim for the payments in arrears, quashed the attachment previously permitted, and relieved the defendant from further liability to make the payments formerly decreed, but reserved jurisdiction to require their resumption in the event of a change in the circumstances of the parties. From the rescinding decree the plaintiff has appealed.

It is clear from the record that the original decree was passed in conformity with an agreement of the parties in regard to its pecuniary and property provisions. It could not properly have made those provisions without such an agreement. The report of the auditor and master stated that the parties had "agreed to the alimony as allowed in the decree," and it was passed as thus reported, with a separate endorsement of approval, by that officer of the court. The testimony in the record supports the verity of his report in that respect. In Newbold v. Newbold, supra, the solicitors for the parties orally expressed in open court the agreement as to the provisions for the wife which the decree embodied. There is consequently no reason to distinguish this case from those we have cited, on the suggested theory that an agreement as to the terms of the decree has not been sufficiently established. Nor can the fact that the report of the auditor and master referred to the provisions as alimony affect the determination of the case. Even if they had been so characterized in the decree itself, they could not be accorded that quality in opposition to its plain and specific effect. This was definitely decided in Dickey v. Dickey, and Spear v. Spear, supra.

In the first of those cases, the law governing such questions in this state was discussed in the opinion delivered by Judge Parke for this court, in part as follows: "Since the case of Wallingsford v. Wallingsford, 6 Har. & J. 485, it has been the settled law of Maryland that permanent alimony is a provision by the husband for the wife's support that continues only during their joint lives or so long as they live separate and apart. 2 Bishop on Marriage and Divorce, §§ 836, 858; Emerson v. Emerson, 120 Md. 584, 590, 87 A. 1033; Polley v. Polley, 128 Md. 60, 63, 97 A. 526; McCaddin v. McCaddin, 116 Md. 572, 82 A. 554; Newbold v. Newbold, 133 Md. 170, 175, 104 A. 366; Hood v. Hood, 138 Md. 355, 365, 113 A. 895, 15 A. L. R. 774; Blades v. Szatai, 151 Md. 644, 649, 135 A. 841, 50 A. L. R. 232. It is equally well established in this state that a final decree of divorce a mensa et thoro or a vinculo matrimonii may be modified at any subsequent time as to alimony. Clarke v. Clarke, 149 Md. 590, 592, 593, 131 A. 821; Winchester v. Winchester, 138 Md. 95, 97, 113 A. 584, 14 A. L. R. 609; Braecklein v. Braecklein, 136 Md. 33, 38, 109 A. 546. If, however, the allowance to the wife in the decree is the result of a previous agreement between the spouses and does not fall within the accepted definition of alimony, so that it would have been impossible for the chancellor to have allowed permanent alimony as the decree provides, then, notwithstanding the parties and even the court called it 'alimony,' the allowance for the wife in the decree was not alimony, and a court of equity has no power to modify the decree as in the case of an award of alimony, infra. The agreement by the husband to pay the wife a weekly sum of money until her death or remarriage did not limit his payments to the joint lives of the spouses, and hence was not what the court could have decreed as alimony; but this agreement providing the wife with a weekly stipend, without reference to whether or not the husband survived her or they lived separate and apart, was properly incorporated in the decree as was determined by Emerson v. Emerson, 120 Md. 584, 598, 599, 87 A. 1033, and Newbold v. Newbold, 133 Md. 170, 174, 175, 104 A. 366, Miller's Equity, § 269; 2 Bishop on Marriage and Divorce, § 885."

In that case the decree, based upon the agreement, provided that the defendant should pay to the plaintiff "as permanent alimony" the sum of $25 per week "until her death or remarriage." This provision was held not to be in legal effect alimony, and neither subject as such to reduction on petition of the defendant nor enforceable by attachment for contempt on the plaintiff's application.

In Spear v. Spear, supra, the decree, as agreed by the parties directed the defendant to pay the plaintiff $100 per month "as permanent alimony" and for the support and maintenance of their child, the "payments to continue for the period of said complainant's life." The plaintiff having remarried, the defendant applied for a modification of the decree to the end that he might be required to contribute only to the support of the child. The refusal of the chancellor to make such a modification was affirmed on appeal. Speaking through Judge Digges, this court said: "The correct decision of the question involved depends upon whether the original decree in the divorce proceeding was a decree for alimony or was an incorporation of the agreement between the parties. If its terms adopted by the chancellor were an award of...