Spear v. Spear

• Decision Date: 13 March 1930
• Docket Number: 13.
• Parties: SPEAR v. SPEAR.
• Court: Maryland Court of Appeals

149 A. 468

158 Md. 672

SPEAR v. SPEAR.

No. 13.

Court of Appeals of Maryland

March 13, 1930

Appeal from Circuit Court of Baltimore City; Duke Bond, Judge.

Suit by Helene M. Spear against Tyler W. Spear. Decree for complainant, and, from an order denying defendant's petition to modify the decree, he appeals.

Affirmed.

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

Howard A. Sweeten, of Baltimore (Weinberg & Sweeten, of Baltimore on the brief), for appellant.

Richard E. Preece, of Baltimore, for appellee.

DIGGES J.

The question for determination on this appeal presents little difficulty, because in our opinion the recent case of Dickey v. Dickey, 154 Md. 675, 141 A. 387, 389, 58 A. L. R. 634, is decisive. The facts are that in March, 1926 the appellee filed a bill for absolute divorce from the appellant on the ground of abandonment and desertion. The prayers were for a divorce a vinculo matrimonii, care and custody of the minor child, and permanent alimony for the support of herself and said child. Prior to the answer of the defendant in that case (appellant here) the parties filed an agreement in court wherein it was stipulated that its terms and conditions should be embodied in and become part of a decree, with the permission of the court; the terms being first, that the husband shall pay to the wife "as permanent alimony, the sum of $1200 per annum, to be paid in equal monthly instalments, the first instalment to be paid on the day of the signing of the decree in this cause, and the said payments are to continue on the same day of each succeeding calendar month for the period of the plaintiff's life"; second, that the wife should have the care and custody of the minor child until he attained his majority. The husband subsequently filed an answer, and thereafter the chancellor passed the following decree: "It is thereupon this 22nd day of April, A. D. 1926, by the Circuit Court of Baltimore City, adjudged, ordered and decreed, that the said Helene M. Spear, the above named complainant, be and she is hereby divorced a vinculo matrimonii from the defendant, the said Tyler W. Spear. And it is further ordered that said complainant shall have the guardianship and custody of Robert W. Spear, the minor child of the parties in the proceedings mentioned; and that said defendant shall pay said complainant the sum of One ($100.00) hundred dollars per month, accounting from the date of this decree, as permanent alimony and for the support and maintenance of said child, said payments to continue for the period of said complainant's life."

Under the terms of this decree, the first payment to the wife for the support of herself and child was April 22, 1926. Since that time the payments have been made and accepted in accordance therewith. On September 18, 1929, the husband filed his petition setting forth the passage of the former decree and alleging that since its passage his former wife had remarried, that the petitioner is willing to support his child, but feels that it is an injustice to require him to continue to contribute anything towards the support of his wife, and alleging his willingness to pay $50 per month for the support of the child, but praying the court to pass an order modifying the decree so that the petitioner will be required to support his said minor child only. The answer of the complainant in the original divorce proceeding admits the passage of the decree as set out in the petition, but alleges that the $100 per month payable to her under its terms was awarded by the court under and by virtue of the terms of the agreement of April 3, 1926, heretofore mentioned. She admits her remarriage. The chancellor passed an order or decree denying the relief prayed and dismissing the petition. The appeal is from that action.

The correct decision of the question involved depends upon whether the original decree in the divorce proceeding was a decree for alimony...