Marshall v. Marshall

• Court: Maryland Supreme Court
• Writing for the Court: PATTISON, J.
• Citation: Marshall v. Marshall, 162 Md. 116, 159 A. 260 (Md. 1932)
• Decision Date: 02 March 1932
• Docket Number: 97.
• Parties: MARSHALL v. MARSHALL.

159 A. 260

162 Md. 116

MARSHALL v. MARSHALL.

No. 97.

Court of Appeals of Maryland

March 2, 1932

Appeal from Circuit Court of Baltimore City; Walter I. Dawkins Judge.

Action for divorce by Esther V. Marshall against Celeston A Marshall. From an order refusing to allow alimony after enrollment of a decree granting plaintiff a divorce a vinculo matrimonii, plaintiff appeals.

Affirmed.

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

W. Le Roy Ortel, of Baltimore (T. Bayard Williams of Baltimore, on the brief), for appellant.

Robert J. MacGregor and E. Paul Mason. both of Baltimore, for appellee.

PATTISON J.

In this case, Esther V. Marshall, the appellant, filed her bill in the circuit court of Baltimore city on the 13th day of December, 1929, against Celeston A. Marshall, the appellee charging him with adultery, and asking: (1) That she be divorced a vinculo matrimonii from him; (2) that she be granted both temporary and permanent alimony; (3) that the defendant be required to pay unto her "the sums of money invested by her in the properties now held in their joint name"; and (4) that a receiver be appointed to sell the aforesaid property and distribute the proceeds thereof under the jurisdiction of the court.

The defendant filed his answer denying the material allegations of the bill. Thereafter evidence was taken, and, at the conclusion thereof, the court, Judge Dawkins, on the 1st day of October, 1930, passed its decree, granting to the plaintiff an absolute divorce, decreeing the sale of the said joint property, and directing that the proceeds thereof be brought in court to be distributed under its jurisdiction. It was further decreed that the defendant pay unto plaintiff's counsel the fee of $50, and also pay the costs of the proceedings, including the stenographic report and copy of the testimony. The decree was silent as to alimony; that is, no provision was made in it for the payment of alimony.

On the 18th day of October, 1930, after the decree had been enrolled, the appellant filed a petition in court alleging: (1) The passage of said decree; (2) that she was in bad health, and not in a condition to earn a livelihood; (3) that, as a result of her physical condition "her loss of time caused her to be relieved of her duties by her employer," and she was "advised by her physician that she must undergo an operation"; (4) that in consequence of the facts alleged, she was without means "for her support and maintenance and for medical care and attention"; (5) that at such time the sale of the property had not been made; (6) that the defendant was then working at the Bethlehem Steel Company at a salary of twenty-eight to thirty dollars per week; and (7) that the decree be "modified providing for permanent alimony and finances sufficient for the plaintiff's medical attention from her husband's estate."

On the 1st day of December, 1930, a demurrer was filed to the appellant's petition, and, after a hearing thereon, the demurrer on the 23d day of December, 1930, was sustained, and the petition dismissed without prejudice by Judge O'Dunne.

An "amended petition" was filed by the appellant on the 28th of February, 1931. This petition included the allegations of the first with the additional allegations: (1) that upon its being shown by the evidence in the case that the plaintiff was making "approximately Twenty-one ($21.00) Dollars a week, and the Defendant Twenty-five ($25.00) Dollars per week at the time of the hearing," the plaintiff understood Judge Dawkins to say in announcing his conclusions upon the question of alimony "that in view of the income of the Plaintiff at that time the divorce would be granted but no alimony allowed, but that in event there was a change in the income of the Plaintiff, the Plaintiff could at that time move the Court for such alimony as she would be then entitled"; (2) that the said error (consisting of the fact that the chancellor in his decree made no reference to alimony) "was not brought to the attention of the plaintiff until hearing upon" her first petition on the 23d of December, 1930, which, as alleged, was within the term in which the decree was passed, and "that said Petition was heard by his Honor, Judge O'Dunne, who not being familiar with the facts of the case, and not sitting at the hearing, decided the question in law pertinent to the petition filed, and sustained a demurrer without prejudice * * * and suggested that counsel for the Plaintiff interview Judge Dawkins for a final ruling on the said petition in that the latter Chancellor was familiar with the facts." The petition concludes with the prayer "that the decree passed on the 1st day of December, 1930, may be reviewed and amended, and that the said decree, in so far as it is silent on the subject of alimony, be so amended to express the oral view of the Chancellor hearing said case, providing for future alimony to the Plaintiff, subject to the further order of this Honorable Court." This petition, it seems, was designated a bill of review.

On the same day, February 28th, a third petition was filed by the appellant. The allegations of this petition are, in great part, a repetition of the allegations of the former petition. In it the plaintiff, among other things, alleged: (1) That she had been to the hospital, had been operated upon, and, as a result, was left in a "weakened condition" unable to "follow her usual duties for a time in the future, thereby stripping her of her earning power and throwing her upon the charity of her friends and relatives"; (2) that the properties jointly held by her and the appellee, decreed to be sold, had been offered for sale, but no bid was received; and (3) that at the time it was unoccupied and yielded no income. The petition concluded with a prayer that the decree "be modified, providing for alimony to the Plaintiff by the Defendant," and that she be allowed alimony pending the hearing on the petition.

On the 12th day of March, 1931, a demurrer to each of the last-named petitions of February 28, 1931, was heard by Judge Dawkins, who, on the 8th day of May thereafter, sustained the demurrers and dismissed the petitions. It is from the two orders dismissing these petitions that the case comes to us on appeal.

The question presented by this appeal is: Can alimony be awarded the wife after enrollment of the decree granting her a divorce a vinculo matrimonii upon a bill in which alimony was asked for but not allowed her, the decree being silent as to alimony, and where the decree reserves no authority or power in the court to consider and pass upon the question of alimony at a time subsequent to the passage of the decree?

This exact question has never been before this court. In McCaddin v. McCaddin, 116 Md. 567, 82 A. 554, 557, it was held that where a "divorce a mensa et thoro is granted, or when there is an allowance of alimony without divorce, the decree can be modified as circumstances may require, subject, of course, to some well-established rules." This court, in rendering its decision in that case, speaking through Chief Judge Boyd and quoting from 2 Am. & Eng. Ency. of Law (2d Ed.) 135, said: "The rule is thus stated: 'The amount of alimony allowed * * * the wife as permanent alimony, upon a decree of divorce a mensa et thoro, may, when the circumstances justify it, be increased or diminished as the case demands. * * * But in the case of a decree a vinculo the award is absolute, and cannot be altered after the expiration of the term or the time in which a new trial may be had, unless in the decree the court reserves the right to do so, or unless the power to subsequently modify the decree is given expressly by statute.' See, also, 14 Cyc. 784; 1 Ency. of Pl. & Pr. 430." The rule of law as stated in 2 Am. & Eng. Ency. of Law is supported by numerous authorities: 1 R. C. L. 92; Mayer v. Mayer, 154 Mich. 386, 117 N.W. 890, 19 L. R. A. (N. S.) 245, 129 Am. St. Rep. 477; Sampson v. Sampson, 16 R.I. 456, 16 A. 711, 3 L. R. A. 349; Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L. R. A. 1917F, 721; Smith v. Smith, 45 Ala. 264; Harlan v. Harlan, 154 Cal. 341, 98 P. 32; Wilkins v. Wilkins, 146 Ga. 382, 91 S.E. 415.

In the later case of Emerson v. Emerson, 120 Md. 584, 87 A 1033, 1035, the court referred to what was said in McCaddin v. McCaddin, supra, by Judge Boyd, quoting from 2 Am. & Eng. Ency. of Law (2d Ed.) 135, and said: "The question involved in this appeal was not before the court in that case. There was no OPINION on this point, but merely a quotation stating what the rule was held to be by that authority." Whether the court, by the statement so made, intended to repudiate the law as enunciated in that authority, is not clearly shown. But if it was so intended, Judge Boyd, after quoting from the Am. & Eng. Ency. of Law, said: "It seems to be well settled that, at least when a divorce a mensa et thoro is granted, or where there is an allowance of alimony...