Skirven v. Skirven

• Decision Date: 13 January 1928
• Docket Number: 82.
• Parties: SKIRVEN v. SKIRVEN.
• Court: Maryland Court of Appeals

140 A. 205

154 Md. 267

SKIRVEN v. SKIRVEN.

No. 82.

Court of Appeals of Maryland

January 13, 1928

Appeal from Circuit Court, Kent County; Lewin W. Wickes and Thomas J. Keating, Judges.

"To be officially reported."

Bill for divorce by Ella R. Skirven against Lewin U. Skirven. From an order overruling defendant's petition for further proceedings on the part of plaintiff, defendant appeals. Appeal dismissed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Thomas F. Healey, of Chestertown, for appellant.

S Scott Beck, of Chestertown, for appellee.

OFFUTT J.

The parties to this proceeding were married on January 28, 1904 in Kent county, Md., where they still reside. On June 7, 1926, Ella R. Skirven, the appellee, filed in the circuit court for that county a bill of complaint against her husband, the appellant, in which she prayed that she be divorced a mensa et thoro from him, and that he be required to pay her permanent alimony, alimony pendente lite, and a reasonable allowance for counsel fees and the expenses of the suit. As a ground for that relief she stated that the defendant had treated her with great harshness and cruelty, had done everything he could to harass her and make her life miserable, and had failed to contribute to her support, although he was in comfortable circumstances while she was wholly destitute. The defendant appeared and answered the bill, denying, in his answer, all allegations of facts which would entitle the complainant to the relief prayed.

On the bill an order nisi was passed allowing the complainant $50 a month alimony pendente lite, and $25 as a counsel fee. The defendant set up, as cause why that order should not be made absolute, "that he was an old man, being 49 years of age, and has no means of support other than what aid he receives from his father." A hearing was had, testimony was taken, and the court on July 13, 1926, ordered:

"That the defendant, Lewin U. Skirven, pay the sum of $25 as counsel fee for the solicitor of the complainant, and that he shall pay further the sum of $50 per month to the plaintiff as alimony pendente lite accounting from the 5th day of June, 1926, the first and second of said monthly payments to be made on or before July 17, 1926, and thereafter said monthly payments to be made on the 15th of each month; and a copy of this order shall be served on the said Lewin U. Skirven on or before the 15th day of July, 1926."

A copy of that order was served on the defendant on July 14, 1926, but he failed to comply with it, and on July 22, 1926, the complainant filed a petition asking that he be required to pay the overdue installments of alimony and counsel fees in accordance with the order of the court. On July 22d, an attachment for contempt issued against the defendant, he was arrested, a hearing was had, and he was committed to jail for 10 days. On August 2, 1926, he petitioned the "court for further proceedings on the part of the plaintiff," and the court ordered the complainant to show cause why she should not proceed to take testimony. By way of cause she alleged in an answer, filed August 3, 1926:

"That she has received no money from her husband, the defendant in this cause, as alimony pendente lite, nor has her counsel received the $25 counsel fee as the said defendant was ordered to pay by order of this honorable court heretofore passed.

That before the defendant is entitled to an order of further proceedings compelling the plaintiff to take the testimony in this case, he is required to have first complied with all the orders of this court against him directed, and, having failed to comply with said orders, he is not in a position to invoke the aid of this honorable court in his behalf."

Nothing further was done in the case until June 4, 1927, when the defendant again filed a petition in which he "respectfully petitioned the court for further proceedings on the part of the plaintiff." That petition was overruled by an order passed on the same day, in which the court said:

"The defendant being in flagrant default in failing to comply with a previous order of this court providing for the payment of alimony pendente lite, the above petition of the defendant is hereby refused, until compliance with said order."

From that order the defendant appealed.

The order appealed from states that at the time it was passed the defendant was in "flagrant default" in failing to comply with a previous order of the court, and, while the record does not disclose what order the court had in mind, counsel for the appellant concedes in his brief that it was an order requiring the defendant to pay alimony and counsel fees, and in effect he admits that the order of the trial court was based upon a finding that defendant was in contempt, for in stating the grounds for his appeal he says:

"The principal question in this appeal is whether defendant, who is in contempt of court, has an absolute right to demand further proceedings upon the part of the plaintiff to take testimony in support of the allegations contained in her bill of complaint, such that it is the legal duty of the court, upon the request of the defendant, to force plaintiff to go on."

Conceding so much, there is little left in the case. This court in Gilbert v. Arnold, 30 Md. 29, said:

"It is laid down as a general rule, by Lord Chief [Justice] Baron Gilbert, that a party in contempt is never to be heard, by motion or otherwise, until he has fully purged his contempt and paid the costs. Gil. Por. Rom. 102; 1 Daniel's Chan. Prac. 488. And in Lord Newman v Osbadiston, 2 Bro. P. C. 276, where a defendant was in contempt for not putting in his examination pursuant to an order of the court, afterwards in order to avoid a writ of sequestration, moved that further process of contempt be stayed, upon his undertaking to pay in a week's time, what should appear to be due the plaintiff, but the court refused to allow him to make the motion until he had cleared the contempt.

It was also held in Hewitt v. McCartney, 13 Vesey, 560, that a mortgagor, defendant to a bill of foreclosure, being in contempt, could not move under the statute of 7 Geo. II, c. 20, for a reference to the master, to take an account of the principal and

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