Roth v. Roth

• Decision Date: 01 September 1981
• Docket Number: No. 997,997
• Citation: 49 Md.App. 433,433 A.2d 1162
• Parties: Robert Philip ROTH v. Patricia Ann ROTH.
• Court: Court of Special Appeals of Maryland

Page 433

49 Md.App. 433

433 A.2d 1162

Robert Philip ROTH v. Patricia Ann ROTH.

No. 997.

Court of Special Appeals of Maryland.

Sept. 1, 1981.

William R. Evans, Baltimore, for appellant.

Ronald J. Miller, Baltimore, for appellee.

Argued before GILBERT, C. J., and MELVIN and COUCH, JJ.

MELVIN, Judge.

Although the parties put it somewhat differently, we think the issue to be decided in this appeal is this: Did the chancellor have the authority to award alimony to a putative wife after granting her putative husband a divorce a vinculo matrimonii on the ground that at the time of their purported marriage the putative wife was already married to a then living husband?

The putative husband, Robert Philip Roth, the appellant here, does not argue the appellee's need for support or the amount of alimony awarded. He contests only the authority of the chancellor to award any alimony at all to his putative wife, the appellee, Patricia Ann Roth, in the circumstances of the case.

On January 4, 1960, Robert and Patricia, then 29 years old and 27 years old respectively, were married by a civil ceremony in Arlington, Virginia. They both testified that the reason for marrying at that time was that Patricia was pregnant. Unfortunately, she was also still married to William Lee Hoffman. The chancellor credited her testimony that Robert was aware of this fact at the time of the Virginia marriage. She testified that she and Robert had discussed the matter at the time and "as soon as my divorce (from Hoffman) was to come through, we were to be remarried ... (W)e just both agreed with it, that we would get remarried again so that Melissa (the child with whom she was pregnant) ... would be legitimate." Her divorce from Hoffman "came through" one month later, February 3, 1960, but thereafter nothing further was said or done about "remarrying." They continued, however, to live together in Baltimore for eighteen years as if they were legally married. Two children were born to them. In the words of the chancellor, "they lived together and worked together, just as if they were legally married. They had their arguments back and forth. The only thing that was lacking was a legal marriage."

On August 8, 1978, Robert left the "marital" home never to return. He testified that he left because he "was run off, run out of my house by threats of being shot, and I knew at that time I needed a lawyer...." He said that it was only after he consulted his lawyer that he learned of the date of Patricia's divorce from Hoffman. As we have already stated, however, the chancellor accepted Patricia's testimony to the contrary, i. e., that Robert had known all along of the illegality of the Virginia marriage ceremony.

In any event, on August 16, 1978, Robert filed a Bill of Complaint in the Circuit Court for Baltimore County praying for a divorce a vinculo matrimonii from Patricia on the ground that the Virginia marriage of the parties was void ab initio, ¹ the reason being that at the time of the "marriage" Patricia was still married to Hoffman. In response, on September 7, 1978, Patricia filed an Answer and a Cross-Bill of Complaint. The Answer admitted the essential allegations of Robert's Bill of Complaint, but averred that Robert had full knowledge of Patricia's marital status at the time of the Virginia marriage ceremony and that he had promised "to enter into another marriage ceremony at a future time in the event the divorce proceedings pending between the Defendant and her former husband were not final at the time the parties hereto married"; that she entered into the Virginia marriage as a result of Robert's representations "and relied thereupon and the parties have lived together as husband and wife since the date" thereof; and that under the circumstances it would be "inequitable and unjust to allow the Plaintiff to obtain a divorce on the grounds that this Defendant was married at the time of the parties' marriage ceremony...."

Patricia's cross-bill sought a divorce a vinculo matrimonii from Robert on the ground of adultery. The cross-bill also alleged that Robert abandoned and deserted her without just cause or reason on August 8, 1978. Her prayers for relief included a request for temporary and permanent alimony.

After a hearing on the merits on May 15, 1980, the chancellor (the Honorable John E. Raine, Jr.) rendered his oral opinion from the bench followed by a formal written decree dated May 20, 1980. On the uncontroverted facts he found that the "marriage was void ab initio, so that Mr. Roth is entitled to divorce." That portion of the decree is not contested, nor could it be. See Townsend v. Morgan, 192 Md. 168, 173, 63 A.2d 743 (1949), holding that "common law marriages are not valid in Maryland and, therefore, when a party who has a spouse living marries another, cohabitation under the second marriage after the death or divorce of the first spouse does not give validity to the second marriage."

On the issue of alimony, Judge Raine said in his oral opinion:

"The question arises as to whether the wife is entitled to any alimony. In the Clayton case, referred to by Mr. Miller, alimony was allowed to a wife who had filed suit against the alleged husband, but there it was the husband who had committed the bigamy, and the wife was the innocent party. This is the reverse of that situation. Yet, I am inclined to think that this matter should be approached from the standpoint of a divorce on non-culpable grounds in which event a court may award alimony considering the two factors of the marital fault and the needs of the wife, Flanagan v. Flanagan, for example."

"I'm going to rule, although it's conceded that this is no case law, that Mr. Roth has got to pay reasonable alimony to the woman that he married in Virginia because, in that respect, I think that they were both in pari delicto, at least he became aware of the pre-existing marriage to Hoffman within a very short period of time after the Virginia marriage ceremony, ² and having remained silent and inactive about it for some eighteen years, he cannot now excuse his own participation in the invalid marriage."

After finding that Patricia "does have some needs that she cannot meet in its entirety" and considering the financial circumstances of the parties, the judge decreed that she be awarded $50.00 per week as alimony. Robert was also ordered to pay her an additional $15 per week to amortize the accrued arrearages in alimony pendente lite previously ordered.

In Clayton v. Clayton, 231 Md. 74, 188 A.2d 550 (1963), the case referred to by Judge Raine in his oral opinion, the chancellor below had awarded alimony to a putative wife who, after proving that her putative husband was still married to another at the time of their marriage, obtained a divorce on the ground that the marriage was void ab initio. The Court of Appeals affirmed. The Court recognized the prevailing case law that in the absence of statute alimony is generally not allowed in any case where the marriage is declared null and void ab initio, but went on to say that "by statute in many states, support for the putative wife is allowed in all cases of divorce or annulment" and that, "In other states, the same result is reached by construction of the divorce statute to permit an award of alimony, even where the ground of divorce is that the marriage is a nullity." After construing the Maryland divorce statutes, the Court said, "We take the same view." The ultimate reasoning and holding of the Court is contained in the following paragraph of the opinion, at 77-78, 188 A.2d 550:

"The key to the instant case, as we see it, is the legislative declaration that alimony is allowable whenever there is a decree for divorce. ³ We read 'alimony' not in the technical sense of the word, but as commensurate with 'support'. The inclusion of prevenient invalidity as a ground for divorce must be ascribed some meaning, and we think it shows a legislative intent to permit an award of alimony in a proper case. The writers and cases recognize that the problem is one of statutory construction. In the absence of statute, alimony is generally not allowed in any case where the marriage is declared to be null and void ab initio. See 17 Am.Jur. Divorce and Separation, § 562; Nelson, Divorce and Annulment, (2d ed.) § 31.56. The cases are collected in a note 54 A.L.R.2d 1410. But by statute in many states, support for the putative wife is allowed in all cases of divorce or annulment. In other states, the same result is reached, by construction of the divorce statutes to permit an award of alimony, even where the ground of divorce is that the marriage is a nullity. See Jones v. Jones, (48 Wash.2d 862) 296 P.2d 1010 (Wash.) and Eggleston v. Eggleston, (156 Ohio St. 422) 103 N.E.2d 395 (Ohio). We take the same view. If other questions relating to voidable marriages and annulments are left unanswered, that is a a matter for legislative consideration, as suggested by Professor Strahorn in the articles cited, supra, and by Judge Hammond in his concurring opinion in Johnson v. Johnson (202 Md. 547, 552, 558 (97 A.2d 330))." (Emphasis added).

Robert argues that because Patricia failed to establish that she was entitled to a divorce on the grounds alleged in her cross-bill, she is not entitled to alimony. It is true that the chancellor could not have granted Patricia a divorce on the grounds alleged by her in her cross-bill. It is also true, as contended by Robert, that there can be no grant of permanent alimony unless the claimant "can show grounds sufficient to support a decree of divorce, either a vinculo or a mensa." Stein v. Stein, 251 Md. 300, 302, 247 A.2d 266 (1968). It does not follow, however, that because Patricia failed to obtain a divorce on the grounds she alleged, the chancellor was precluded from considering awarding her alimony. This is so because the evidence in the case established that she, as well as Robert, had a...