Minner v. Minner

• Decision Date: 23 October 1973
• Docket Number: No. 94,94
• Citation: 310 A.2d 208,19 Md.App. 154
• Parties: Alfred Anthony MINNER v. Julia Ann MINNER.
• Court: Court of Special Appeals of Maryland

Page 154

19 Md.App. 154

310 A.2d 208

Alfred Anthony MINNER v. Julia Ann MINNER.

No. 94.

Court of Special Appeals of Maryland.

Oct. 23, 1973.

Harvey B. Steinberg, Silver Spring, with whom were Miller, Miller & Steinberg, Silver Spring, on the brief, for appellant.

John R. Hansen, Gaithersburg, and Paul H. Mannes, Rockville, for appellee.

Before ORTH, C. J., and MORTON and MOYLAN, JJ.

ORTH, Chief Judge.

ALFRED ANTHONY MINNER (Husband) claims that the chancellor presiding in the Circuit Court for Montgomery County erred in awarding JULIA ANN MINNER (Wife) alimony and counsel fees. ¹ He argues that an award to a wife of alimony and counsel fees is unconstitutional 'as a denial of equal rights because of sex.'

Husband's contention is bottomed on the impact of new Article 46 of the Declaration of Rights, Constitution of Maryland, on the law of this State. ² Art. 46 provides: 'Equality of rights under the law shall not be abridged or denied because of sex.' He urges that the laws of Maryland concerning alimony and counsel fees in domestic causes are in contravention of this constitutional mandate in that they make no provision for award of alimony or counsel fees to a husband.

We assume for the purpose of decision, without deciding, that the law of Maryland does not permit a husband to obtain an award of alimony or counsel fees in domestic causes, and that the right thereto is afforded only to a wife or former wife. ³ We need not reach, however, the question whether Art. 46 of the Declaration of Rights renders unconstitutional the statutes of this State concerned with alimony and the award of counsel fees to a wife. ⁴

The transcript of the proceedings reflects that when the chancellor announced the award of alimony and counsel fees, Husband's solicitor requested that the record show that the award was pursuant to Art. 16, § 5 because 'I believe there is a constitutional issue.' The chancellor said:

'I will add to the opinion the fact, Mr. Steinberg, that alimony and counsel fees are being awarded to the wife in accordance with the statutory provisions of the Annotated Code of Maryland, more specifically, in this case, I believe Article 16, Section 5 of the Annotated Code of Maryland, and I would point out as part of the opinion that you have raised the question of whether as a result of the constitutional amendment, alimony and attorney's fees can any longer be awarded to the wife, whether she can be a favored suitor. You question whether it is invidious discrimination because there is no concomitant right of the husband to ask for alimony from the wife if the facts in a particular case justified it.

My answer to that, Mr. Steinberg, is simply that you may have a point, but the point will be reached when that case is presented which should justify the Court in awarding alimony to a husband, and that the remedy for any discrimination if indeed it exists, would be to award alimony to a husband if a case required it, but we are not going to throw out the baby with the bath water and throw out the right of a wife to obtain alimony merely because the legislature has not given equal right to the husband. I am not called upon in this case to decide whether the husband in this State has a right to alimony, but I think in a proper case, if the Court feels he does, the Court can award it and it is not necessary to hold this portion of the statute unconstitutional in order to achieve equality.' ⁵

We observed in Wilkins v. State, 16 Md.App. 587, 598, 300 A.2d 411, 417, that 'the best teaching of judicial experience 'admonishes us not to entertain constitutional questions in advance of the strictest necessity.' Parker v. County of Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 164, 94 L.Ed. 144 (1949); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961); Vuitch v. State, supra, 10 Md.App. at 397, 271 A.2d 371.' We see no such necessity here. We are in accord with the two rules which the Supreme Court has stated it feels bound to follow in its consideration of the constitutionality of a statute: 'one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. In United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524, the Court said that '(k)indred to these rules is the rule that one . . . will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.'

The award of counsel fees and alimony to Wife was fully in accord with the laws of this State, and particularly the applicable provisions of Code, Art. 16. The court hearing and determining the cause for alimony had jurisdiction to do so, § 2; the alimony was awarded in a case where a divorce was decreed, § 3; the alimony and counsel fees were awarded upon evidence that Wife's income was insufficient to care for her needs, § 5. We do not so construe the provisions of Art. 46 of the Declaration of Rights as to abridge or deny a wife the right to be awarded alimony and counsel fees because a husband may have no right to such award. An obligation, not a right, of Husband is here involved. The obligation of Husband to pay alimony and counsel fees as decreed by the court in the exercise of its clear authority is not vitiated by the constitutional mandate. It may be that if a husband seeks and is denied sustenance and counsel fees upon proof of circumstances such as would entitle a wife to alimony and counsel fees, he would then have standing to invoke the dictates of Art. 46. But that situation is not in this case existent. The application of the statutes is constitutional as to Husband and he will not be heard to attack them on the ground that impliedly they might be taken as applying to other persons or other situations in which their application might be unconstitutional. United States v. Raines, supra, at 21, 80 S.Ct. 519, 4 L.Ed.2d 524. See Heath v. State, 198 Md. 455, 85 A.2d 43; Hughes v. State, 14 Md.App. 497, 287 A.2d 299; Lashley v. State, 10 Md.App. 136, 268 A.2d 502; Vuitch v. State, supra.

We do not believe that Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, decided 14 May 1973, compels a contrary view. The statutes there attacked provided that spouses of male members of the uniformed services are dependents for purposes of obtaining increased quarters allowances and medical and dental benefits, but that spouses of female members are not dependents unless they are in fact dependent for over one-half of their support. 37 U.S.C. §§ 401, 403 and 10 U.S.C. §§ 1072, 1076. A married Air Force officer sought increased benefits for her husband as a dependent, and her application was denied for failure to satisfy the statutory dependency standard. She and her husband brought suit in the United States District Court, contending that the statutes deprived servicewomen of due process. From that court's adverse ruling they took a direct appeal. The Government conceded that the differential treatment accorded men and women under the statutes served no purpose other than mere 'administrative convenience.' Id., at 688, 93 S.Ct. 1764. The judgment of the Supreme Court was that the challenged statutes constituted an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. Unlike the case before us, the ones denied the equal right to receive benefits attacked the statutes. Thus, the Court had the constitutional issue squarely before it and met it. A majority of the Court concurred in the judgment but not in the reasons for reaching it. Mr. Justice Brennan announced the judgment of the Court and delivered an opinion in which Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall joined. ⁶ Mr. Justice Stewart filed a statement concurring in the judgment. Mr. Justice Powell concurred in the judgment and filed an opinion in which the Chief Justice and Mr. Justice Blackmun joined. Mr. Justice Rehnquist filed a dissenting statement. Neither the Brennan opinion nor the Powell opinion represents a majority of the Court.

The opinion of Mr. Justice Brennan, at 682, 93 S.Ct. 1764, agreed with the claim that classifications based upon sex are inherently suspect and must therefore be subjected to close judicial scrutiny, finding at least implicit support in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225. The opinion of Mr. Justice Powell expressly repudiated this view and thought it 'unnecessary for the Court in this case to characterize sex as a suspect classification, with all of the far-reaching implications of such a holding.' 411 U.S. at 691-692, 93 S.Ct. at 1773. He believed the case should be decided on the authority of Reed and any expansion of its rationale be reserved for the future. He found another compelling reason for defining a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. He pointed out that if the Equal Rights Amendment to the Constitution of the United States is adopted it will resolve the substance of this precise question. Maryland, as indicated, has already added such an amendment to its constitution. We shall apply it in a case properly invoking it.

Decree of 29 January 1973 affirmed; appellant to pay costs.

1 On 3 March 1972 Husband filed a Bill of Complaint in the Circuit Court for Montgomery County against Wife for a divorce a mensa et thoro and custody of their three children. Wife filed a Cross-bill on 16 March for a divorce a mensa et thoro, custody of the children, alimony pendente lite and permanent, solicitor's fees and costs. The decree of...