Quigley v. Quigley

• Decision Date: 03 March 1983
• Docket Number: No. 903,903
• Citation: 456 A.2d 1305,54 Md.App. 45
• Parties: Catherine F. QUIGLEY v. Stephen T. QUIGLEY.
• Court: Court of Special Appeals of Maryland

Page 45

54 Md.App. 45

456 A.2d 1305

Catherine F. QUIGLEY v. Stephen T. QUIGLEY.

No. 903.

Court of Special Appeals of Maryland.

March 3, 1983.

John R. Foley, Washington, D.C., for appellant.

Hal Witt, Washington, D.C., with whom was Pamela J. Murphy, Philadelphia, Pa., on brief, for appellee.

Argued before LOWE and GARRITY, JJ., and ORTH, Jr., CHARLES E., Specially Assigned Judge.

LOWE, Judge.

The union of Stephen Quigley and Catherine Foley joined by a priest on August 19, 1944, was put asunder by a Montgomery County Circuit Court chancellor 38 years later. In truth, however, the marriage was asunder for its last 13 years.

In 1968, Stephen T. Quigley (appellee) left his wife, Catherine F. Quigley (appellant), and their six children, all of whom are now mature. Because of his desertion--and admitted adultery--he was at that time unable to obtain a divorce but was not deterred ten years later from taking up residence with a female companion.

For a time both spouses worked and both appear to have maintained their fiscal responsibilities. Mr. Quigley, a Ph.D., was retired at age 59 as a Naval Reserve Rear Admiral, and until recently had been employed by the American Chemical Society. He was, at the time of trial, however, between retirement eligibility and earned income, surviving on $96 per month and loans; but he expected to receive within a year $1,000 a month naval retirement and at age 65 an additional $700 from the American Chemical Society.

Mrs. Quigley, on the other hand, was by her expressed desires still working at age 61, and intends to continue as long as she is able. Her retirement eligibility from the National Library of Medicine was, as of April, 1982, $383 per month, notwithstanding an annual salary of $21,800. Her net worth, including her half of their jointly owned home which she occupied, was $105,957, while Mr. Quigley's was $85,200.

On October 15, 1980, Mr. Quigley filed suit for divorce on the ground of 3 years uninterrupted separation ¹ and prayed, among other things,

"[t]hat the court make a proper distribution of the real and personal property and assets of the parties, and grant a monetary award to plaintiff as an adjustment of the equities and rights of the parties concerning marital property."

Mrs. Quigley's answer admitted that ground but, by way of cross-bill, she also sought a divorce on the grounds of adultery and desertion and further prayed a distribution of marital property (including a monetary award), alimony, attorney's fees, court costs, etc. Mr. Quigley admitted the adultery, but denied that the desertion was without cause.

The chancellor granted a divorce a vinculo matrimonii to appellee, denied appellant's cross-bill and her "prayers for alimony or, in the alternative, for reservation of alimony and attorney's fees"; however, he appears to have reserved the distribution of marital property issues raised by the parties:

"[T]hat the issue of division of the personal property of the parties which is located at the former marital residence of the parties is reserved for determination following a further hearing or other proceedings in the event that such issue cannot be resolved by the parties themselves ...."

Appellant initially contends that there was error in failing to grant her the divorce on the "more heinous acts" of adultery admitted by appellee or desertion which she proved. See Flanagan v. Flanagan, 270 Md. 335, 341, 311 A.2d 407 (1973). She does not argue that a divorce was not legally merited, but that she was entitled to obtain it as a matter of preference. Apparently, she would have us establish a priority, or pecking order of conflicting grounds proportionate to a badder-is-better standard, among those seven grounds permitted by Art. 16, § 24. We find the reasoning absurd and based primarily upon the animosity that has festered over the years demanding now that the court point the finger of fault; more in vindictiveness than as vindication, considering that appellee never denied having initiated the dissolution and has admitted the adultery.

This contention was answered by this Court in Flanagan v. Flanagan, 14 Md.App. 648, 654-655, 288 A.2d 225 (1972), cert. granted on other grounds, 270 Md. 335, 311 A.2d 407 (1973), where now Chief Judge Gilbert pointed out that the seventh ground of divorce under Art. 16, § 24 was enacted by the Legislature to preclude a party from perpetually preventing his or her spouse from obtaining a decree of divorce a vinculo matrimonii. Responding to an argument identical to appellant's Judge Gilbert wrote:

"The appellant's cross-bill alleging desertion, an allegation which the record discloses she failed to sustain, or the revelation in the testimony of the appellee's adultery, are both grounds for divorce if proven, but are not in law sufficient to defeat the non-culpatory five year uninterrupted separation. Assuming that the husband had proven his cause of action, and further assuming that the wife had proven desertion or adultery, it would be incongruous to ban recrimination as a defense under the five year statute, and at the same time allow the wife to prevail. Such action would defeat the legislative purpose. The language of the seventh ground that 'res adjudicata' and recrimination 'shall not be a bar to either party obtaining a divorce on this * * * ground' precludes that possibility." Id. 14 Md.App. at 655, 288 A.2d 225.

A recent holding by this Court is based on similar logic. See McClellan v. McClellan, 52 Md.App. 525, 451 A.2d 334 (1982).

The more practical (if legally unnecessary) reason asserted below for arguing that the divorce be granted on the culpable grounds asserted in the cross-petition, was to provide a basis for determining alimony eligibility for Mrs. Quigley, notwithstanding that she acknowledges appellee's present income is substantially less than hers. ² It is that material concern which constituted appellant's second issue which asserts that the chancellor refused to "reserve" alimony as a means of insuring her an adequate retirement, if and when she does retire.

Initially, we should point out that Maryland's alimony laws were substantially changed by statute in 1980. That year, Chapter 575 of the Acts of the General Assembly codified the work product of The Governor's Commission on Domestic Relations Laws on the subject of alimony in what is now Md.Ann.Code, Art. 16, § 1, et seq. It is, therefore, now a question of legislative intent which confronts appellant rather than the pre-1980 Act case law upon which she relies.

We further note that appellant's concern that the court should have declared appellee at fault for the dissolution of the marriage to permit her to overcome the common law prerequisite to alimony, is now meaningless. After pointing out that the pre-1980 law in Maryland was that the right to alimony was forfeited by an errant spouse, guilty of a culpable ground of divorce, the Commission provided in the new statute a compromising means of overcoming so harsh a forfeiture. The statute recommended by the Commission, and adopted by the Legislature, expressly declares that "the existence of a ground for divorce against the party requesting alimony shall not be an automatic bar thereto." Art. 16, § 1(a). It then placed the "facts and circumstances leading to the estrangement of the parties and the dissolution of the marriage" as one of numerous expressed factors to be considered in determining the amount of an award of alimony. Art. 16, § 1(b)(7). The reasoning was explained by the Commission in its report on the proposed bill.

"The Commission does not believe that vice or fault should be rewarded. However, it also does not believe that the Judges of Maryland should be deprived of the opportunity and responsibility to apply their sound discretion to all parties who appear before them, and to weigh the 'fault' as against the need and any countervailing equities of a party in need of support. The Commission believes that the present situation, where the vice of the payor is winked at and only the conduct of the needy spouse is the criterion, is inequitable. Our proposal, accordingly, empowers the Court to take into account the whole situation of the parties, and on that basis to act as is most fair."

In addition to that statutory alleviation of appellant's concern, the chancellor in this case made it perfectly clear that no assessment of fault precluded appellant alimony or its reservation. He found as a fact that Mrs. Quigley simply was not presently or foreseeably in need of it.

"Well, I must make a finding of fact that there has been no demonstration of the wife's financial need, nor has there been a demonstration that that need may reasonably be anticipated in the future such as because of ill health, a tendency of losing the job, or other financial circumstances. Consequently, the Court finds, taking into consideration all the circumstances which determine, first, her eligibility, that the controlling factor is the wife's need. That not having been established that the Court, therefore, cannot grant the reservation of alimony."

Appellant argues that if and when Mrs. Quigley retires, her retirement income would be insufficient, while Mr. Quigley's would be ample. Her accrued retirement benefits equaled only $383 per month, while Mr. Quigley anticipated $1,000 per month as a navy retirement benefit in the near future and, at age 65, an additional $700 per month from the American Chemical Society pension. The chancellor, says appellant, erred in not "reserving" alimony so that if Mrs. Quigley elects to retire thereafter (which she expressly did not anticipate), or becomes infirm or unable to work, she could return to court asking to participate in Mr. Quigley's pensions. Such reservation would make appellee's anticipated pensions her own annuity or health insurance on call or in need.

Whether a chancellor can "reserve" alimony generally under the new statute is...