Outlaw v. Outlaw
| Decision Date | 10 July 1912 |
| Citation | 84 A. 383,118 Md. 498 |
| Parties | OUTLAW v. OUTLAW. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County.
Suit by Laura Frances Outlaw against Charles W. Outlaw. From an order overruling a demurrer to the complaint, and requiring defendant to answer, he appeals. Affirmed.
S. S Field and O. I. Yellott, for appellant.
Sauerwein, Brown & Cook, for appellee.
The bill in this case was filed by Mrs. Laura F. Outlaw against her husband, praying for the custody and guardianship of her infant child, and for an award of permanent alimony. It did not ask any relief by way of divorce, either a vinculo matrimonii or a mensa et thoro. The defendant, appellant here, demurred to the entire bill as not setting forth a case which would justify a court of equity in granting the relief prayed, or any relief, averring that the allegations were too general, indefinite, and uncertain, that they were conclusions of law, rather than statements of fact.
The effect of filing a demurrer to the bill was, of course, to admit all facts properly alleged in the bill as constituting a ground for the relief sought. After hearing had on the demurrer, the circuit court for Baltimore county, in equity overruled the demurrer and required the defendant to answer.
The order for the appeal names four orders as appealed from--one of December 15, 1911, enjoining the defendant from interfering with the infant child of the parties or removing him from the state pending the adjudication of his custody; one of January 3, 1912, in regard to counsel fees and alimony pendente lite; one of March 7, 1912, overruling the demurrer to the bill of complaint, and requiring the defendant to answer; and one of March 23, 1912, also in regard to alimony pendente lite and counsel fees. Of these only the third is pressed in this court, and the appeal as to the first, second, and fourth was apparently waived. But, whether waived or not, none of these three orders are reviewable by this court, not being final in their nature or decisive of any right of the parties. Hayward v. Hayward, 77 Md. xvi, unreported opinion.
It was ably urged in the argument of the case that there was error in the order appealed from of March 7, 1912, for the reason that alimony was originally an incident of divorce, and that a complaint must set out as the basis for any decree of alimony, acts upon the part of the husband which would have been sufficient to sustain, if properly supported by proof, a decree of divorce. This argument, however, overlooks one essential difference between a proceeding for divorce, with alimony as an incident, and a proceeding for alimony only.
The power of the courts to grant divorce is dependent entirely upon statute, and has no existence in the absence of statutory enactment. For a long time after the separation of this state from England, divorces were obtainable, and obtainable only, through an act of the General Assembly, and it was not until 1841 that this power was conferred upon the courts. The power of the courts to award alimony, however, was first recognized and exercised under the provincial government as early as the case of Galwith v. Galwith, 4 Har. & McH. 477, decided in 1689, and that power so recognized as inherent in equity jurisdiction has since been continuously exercised in this state. Hewitt v. Hewitt, 1 Bland, 101; Fornshill v. Murray, 1 Bland, 479, 18 Am. Dec. 344; Wallingsford v. Wallingsford, 6 Har. & J. 485; Helms v. Franciscus, 2 Bland, 565, 20 Am. Dec. 402; Dunnock v. Dunnock, 3 Md. Ch. 140; Jamison v. Jamison, 4 Md. Ch. 289; Wright v. Wright, 2 Md. 429, 56 Am. Dec. 723; Stewart v. Stewart, 105 Md. 297, 66 A. 16; Taylor v. Taylor, 108 Md. 129, 69 A. 632; McCaddin v. McCaddin, 116 Md. 567, 82 A. 554. Nor is the doctrine one which has been limited to Maryland. The authorities generally are collected in 2 Am. & Eng. Ency. 96; 1 Bishop on Marriage, Divorce and Separation, §§ 1403 and 1409; Browne on Divorce and Alimony, p. 269; Story's Equity Jurisprudence (13th Ed.) § 1423a.
There is not however entire unanimity in the decisions as to the right of courts of equity to grant relief of alimony alone, in states where by statutory enactment it is made an incident to a proceeding for divorce, with a manifest tendency not to allow alimony only, upon the ground that, the state having by law given a defined power to the courts, they will not exercise any power not expressly conferred by the statute. Nelson on Divorce and Separation, § 1000.
The real question is: Can such relief be granted the wife without a divorce when the statute has provided that relief with divorce? Mr. Bishop in his work denies the jurisdiction of equity courts to grant this relief, but the jurisdiction and power is sustained by the courts of Alabama, Arkansas, Colorado, Iowa, Kentucky, Maryland, Mississippi, North Carolina, Rhode Island, South Carolina, and Virginia, and Mr. Nelson, following these adjudications, lays down the opposite rule from Mr. Bishop.
In this state the jurisdiction of the court of equity was made a subject of statutory enactment as early as 1777, and by chapter 12 of the Acts of that year it was provided that "the courts of equity of this state shall and may hear and determine all causes for alimony in as full and as ample manner as such cases could be heard and determined by the laws of England in the ecclesiastical courts there." Code Public General Laws, 1912, art. 16, § 14. This section has been a subject-matter of construction in this state and...
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