McCabe v. McCabe

• Citation: 210 Md. 308,123 A.2d 447
• Decision Date: 15 June 1956
• Docket Number: No. 193,193
• Parties: Dorothy H. McCABE v. Harry E. McCABE.
• Court: Court of Appeals of Maryland

Page 308

210 Md. 308

123 A.2d 447

Dorothy H. McCABE v. Harry E. McCABE.

No. 193.

Court of Appeals of Maryland.

June 15, 1956.

Lewis H. Weiss, College Park, James E. Artis and Harvey H. Holland, Jr., Washington, D. C., for appellant.

No appearance for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

This appeal presents for decision a question which has not heretofore been before this Court--whether a court of equity in Maryland will enforce here by the sanctions customarily used by equity courts a decree for alimony entered by a court of another State. The chancellor sustained the demurrer of a husband to the bill of complaint of his former wife, seeking such enforcement, and transferred the case to the law side of the court, and the wife appeals from that action.

The parties lived in Maryland and were married in Montgomery County in 1927. Two children were born to them. In 1931 the husband procured an absolute divorce in a court of Nevada. The wife appeared in the proceedings by counsel. The Nevada court ordered the husband to pay the wife $60 a month as permanent alimony until her death or remarriage, as well as the sum of $40 a month for the support of the two minor children. The wife has continued to live in Maryland, as have the children. The husband worked in several states but finally returned to Montgomery County, where he has lived since 1946. The husband has paid but $270 since 1931 and the wife alleges he owes $25,890 in accrued and unpaid alimony and support installments. The bill alleges the matters that have been recited, and that the husband has had no property subject to attachment or execution since 1931 until recently, when he has become 'entitled' to a 'substantial interest' in real estate in Montgomery County (presumably from the estate of his father, recently deceased), and that unless the equity court assumes jurisdiction and '* * * recognizes and enforces the said Nevada decree either by attachment of the person of the respondent, by contempt proceedings, or by some similar action solely within the powers of equity, complainant is without remedy and, to all intents and purposes, her right is unenforceable and a nullity.' The bill further alleges that the courts of Nevada have power to modify decrees for the payment of alimony to accrue in the future, but no power to modify such decree for accrued or past due installments, and says that there is no pending appeal from the Nevada decree, that it has never been revoked and that the wife has not remarried. The prayers of the bill are that the court decree $25,890 to be now due the wife and that it adopt the Nevada decree as its own and enforce it as is customary under the laws of Maryland, and enforce by suitable decree such rights as the wife may be found to have against the husband. The demurrer to the bill was solely on the ground that there was an adequate and complete remedy at law.

It is established that where a decree is passed for alimony payable in future installments, the right to each installment becoming due is absolute and vested and protected by the Full Faith and Credit clause of the Federal Constitution, art. 4, § 1, provided the court cannot retroactively modify the decree and provided no modification of the decree has been made prior to the maturity of the installment. Rosenberg v. Rosenberg, 152 Md. 49, 135 A. 840; Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905. The Rosenberg case decided that in the absence of proof to the contrary, it would be presumed that a decree for alimony in another state is not subject to an annulment or modification as to installments which have become due so as to preclude an action at law in Maryland to recover the total of such installments and the bill alleges that Nevada has no power to modify past due installments, and has not attempted to do so.

It is clear then that the appellant would be entitled, upon proper proof, to secure a judgment at law for the amount due and unpaid under the Nevada decree. We must determine whether she has a right to have a court of equity enter a monetary decree for the sum so due and whether that decree can be enforced by the same processes it could be if it were a decree of a Maryland court. There is the further question whether a Maryland equity court can compel obedience to the directions of the Nevada decree to pay month by month the specified alimony.

The Courts of the country have not agreed in their answers to such questions. The trend increasingly has been to hold that equity will act in respect of a decree of a sister state for alimony as it would in respect to such a decree of its own. In Barber v. Barber, 21 How. 582, 62 U.S. 582, 16 L.Ed. 226, the wife, a citizen of New York, brought suit against her husband, a citizen of Wisconsin, on the equity side of the District Court of the United States for the District of Wisconsin, asking that the Court give the same validity in Wisconsin to a judgment for alimony as that judgment had in New York, where it was rendered. The District Court entered a decree for the wife for the accrued alimony. The Supreme Court affirmed, pointing out that this was not a suit for the allowance of alimony with which the courts of the United States had nothing to do--this had been granted by a court of competent jurisdiction. It held that in England courts of equity would interfere to compel the payment of alimony which had been decreed a wife by the ecclesiastical courts and that the reason for the exercise of equity jurisdiction in such case was equally applicable to courts of equity in the United States. It said: 'The parties to a cause for divorce and for alimony are as much bound by a decree for both, which has been given by one of our state courts having jurisdiction of the subject matter and over the parties, as the same parties would be if the decree had been given in the ecclesiastical court of England. The decree in both is a judgment of record, and will be received as such by other courts. And such a judgment or decree, rendered in any State of the United States, the court having jurisdiction, will be carried into judgment in any other state, to have there the same binding force that it has in the state in which it was originally given. For such a purpose, both the equity courts of the United States and the same courts of the states have jurisdiction.'

In German v. German, 122 Conn. 155, 188 A. 429, the Supreme Court of Connecticut, speaking through Chief Justice Maltbie, held that a New York resident could bring an equitable action to enforce a New York decree for alimony against a Connecticut resident for past due payments and the Connecticut court could give any appropriate remedy applicable to an action brought to it in its capacity as a court of equity. Other cases which have reached the same result are Johnson v. Johnson, 194 S.C. 115, 8 S.E.2d 351; Thones v. Thones, 185 Tenn. 124, 203 S.W.2d 597; Glanton v. Renner, 285 Ky. 808, 149 S.W.2d 748; Shibley v. Shibley, 181 Wash. 166, 42 P.2d 446, 97 A.L.R. 1191; Ostrander v. Ostrander, 190 Minn. 547, 252 N.W. 449; McKeel v. McKeel, 185 Va. 108, 37 S.E.2d 746. The general view of these courts is that the requirements of the Full Faith and Credit clause are a minimum, not a maximum, a command to do so much and not a prohibition not to do more, and that the enforcing state may give recognition and effect to decrees of a sister state above and beyond that required by the Constitution of the United States, particularly as to the matter of remedies. Courts which have refused to give equitable enforcement to the collection of accrued and unpaid alimony reason that the amount claimed is but a debt and, as such, is entitled to be collected only in the way any other debt is collected. In some of the states that so held--New York and New Jersey for example--the Legislature has changed the result reached by their Courts. See a discussion of the earlier cases, on both sides, in the annotation in 97 A.L.R. 1197; and see also 109 A.L.R. 652; 132 A.L.R. 1272; 157 A.L.R. 170; and 18 A.L.R.2d 862. In 1948 the American Law Institute found that it should add to the Restatement, Conflict of Laws, Sec. 464, Enforcement of Foreign Decree for Alimony, the following comment found in the 1948 supplement (Comment d) 'If the law of the forum permits the use of equitable aid to enforce a decree for alimony, the forum will permit the use of equitable aid to enforce a judgment which it grants on the basis of a foreign decree for alimony.' The Institute adds: 'This Comment has been added because of the growing authority supporting the position that equitable help will be given to the holder of an alimony judgment when enforcement is sought in a second state.'

This Court has held that alimony represents a duty and not a debt. It was so noted in Safe Deposit & Trust Co. of Baltimore v. Robertson, 192 Md. 653, 65 A.2d 292, wherein the Court permitted the invasion of a spendthrift trust to satisfy claims for alimony. In Oles Envelope Corp. v. Oles, 193 Md. 79, 65 A.2d 899, 905, the Court said that the obligation to pay alimony is not a debt but a duty resting upon sound public policy, and added: 'Hence this obligation may be enforced by attachment of the person for contempt, and the defendant may be imprisoned unless he can purge himself of the contempt by paying or by showing that he has neither the estate nor the ability to pay.' Since the 1950 amendment of art. III, § 38, Constitution of Maryland, and the decision in Zouck v. Zouck, 204 Md. 285, 104 A.2d 573, 105 A.2d 214, obligation of support of minor children under a decree would, like alimony, be considered a duty, not a debt. The public policy of Maryland would seem clearly to permit the relief sought by the wife in this case. In 1951, the Legislature enacted the Uniform Reciprocal Enforcement of Support Act, now codified as art. 89C of the Code. The duty...