Staub v. Staub

• Decision Date: 20 February 1936
• Docket Number: 35.
• Parties: STAUB v. STAUB.
• Court: Maryland Court of Appeals

183 A. 605

170 Md. 202

STAUB v. STAUB.

No. 35.

Court of Appeals of Maryland

February 20, 1936

Appeal from Baltimore Circuit Court; Joseph N. Ulman, Judge.

Bill by Helen K. Staub, otherwise known as Helen K. Elphinstone against William H. Staub. From an order sustaining without leave to amend defendant's demurrer to the petition complainant appeals.

Affirmed.

Argued before BOND, C.J., and URNER, PARKE, SLOAN, MITCHELL, SHEHAN and JOHNSON, JJ.

Willis R. Jones, of Baltimore, for appellant.

J. Stanislaus Cook and John Y. Offutt, both of Baltimore, for appellee.

JOHNSON Judge.

On July 1, 1933, Helen K. Elphinstone and William H. Staub were married and subsequently resided in Baltimore, Md., until November 28, of the same year, when they separated. Between that date and March 19, 1934, the wife established a residence in Crittendon county, Ark., since, on the date last mentioned, she obtained in the chancery court of that county and state, upon the ground of cruelty, an absolute divorce from her husband after the court had acquired jurisdiction to entertain the suit by virtue of an order of publication against him. In the decree divorcing her from him, she was permitted to resume her maiden name. From a consideration of the record we are not informed as to her present residence. However, on November 1, 1935, she filed in the circuit court of Baltimore city a bill of complaint against him, in which, in addition to reciting the substance of what has above been stated, she further alleged that the defendant at the time of her marriage to him was impotent and remained in that condition at all times during the period of her residence with him; that, although duly warned of her suit by publication, he failed to appear in said proceedings, in consequence of which that court was without authority to award alimony to her, although since her marriage he had been regularly employed at a good salary, and she was advised that he owned valuable real estate in the state of Maryland, while she was without adequate income to support and maintain herself and was then in an impaired state of health and unable to obtain gainful employment; and at all times since her marriage to him, she had behaved herself as a dutiful and chaste wife. In the bill of complaint were prayers (a) for permanent alimony; (b) for alimony pendente lite; and (c) for general relief. The defendant demurred to the bill, and, from an order of the chancellor sustaining the demurrer, the former wife takes this appeal. It should here be emphasized that the validity of the foreign divorce has at no time been questioned by either of the parties hereto.

The question presented is whether an allowance, either of permanent alimony or of alimony pendente lite, can be made to the former wife, who voluntarily obtained a decree of divorce from the husband in a foreign jurisdiction; such decree being silent as to alimony. We are not unmindful of a lack of uniformity in the decisions of other jurisdictions upon the question of law thus presented. For instance, in Woods v. Waddle, 44 Ohio St. 449, 8 N.E. 297, the wife moved to Tennessee and there obtained an absolute divorce upon service by publication. Later her right to maintain a suit for alimony alone in the courts of Ohio was upheld. Likewise the Supreme Court of Washington, in the case of Adams v. Abbott, 21 Wash. 29, 56 P. 931, recognized the right of the former wife to maintain an action for alimony in the state of Washington after she had obtained a decree of absolute divorce in Wyoming, and apparently the decision in Turner v. Turner, 44 Ala. 437, upholds a similar view of the law. It seems the decisions in these cases permitted a recovery by the wife upon the ground that in the foreign jurisdiction where the divorce was obtained the matter of alimony was not litigated. However, in many other jurisdictions the right of the former wife to maintain a suit for alimony against the former husband in the state of his domicile in cases where a foreign divorce had been obtained by him, as well in cases in which the divorce had been obtained by her, was denied. Thus in Eldred v. Eldred, 62 Neb. 613, 87 N.W. 340, 341, the parties were married in Iowa; the husband subsequently moving to Nebraska. His wife obtained an absolute divorce in Illinois and later returned to Nebraska and sued him for alimony. Her right to relief was denied; the court, in its opinion, saying: "The marriage relation that existed between the present plaintiff and defendant has been dissolved by a court of plaintiff's own selection. They are no longer husband and wife. The duty and obligation that once existed to support and maintain the plaintiff does not now rest upon the defendant. He is no longer her husband, and no legal obligation is imposed upon him to provide for her maintenance; hence there exists no right to alimony."

In Doeksen v. Doeksen, 202 Iowa, 489, 210 N.W. 545, 546, the court in sustaining this view carried the doctrine farther than in any other case observed by us, in that the foreign decree of divorce contained a provision that the case was "continued on the question of alimony." This was subsequently allowed in the state of the domicile of the former husband; the latter appealing and the decision being reversed. The court said: "The appellee was not obliged to take a decree in the divorce action on service in a foreign state; but she saw fit to take a decree of divorce in an action where the court had no jurisdiction to make an award of alimony. By so doing she accepted a final decree of divorce without alimony, and cannot now maintain this action."

McCoy v. McCoy, 191 Iowa, 973, 183 N.W. 377, 378, is a case in some respects strikingly analogous to the one here under consideration. The parties were married in Iowa and later moved to Arkansas, where the wife secured an absolute divorce from the husband for desertion; service being by publication only, and the decree being silent as to alimony. Later in Iowa she sued her former husband for permanent alimony. The demurrer to her bill was sustained. It was contended that the suit was maintainable in Iowa, because the wife could not obtain alimony in Arkansas, since the court of that state never acquired jurisdiction in personam over her husband, and the question of alimony was therefore never adjudicated, and she was therefore entitled to have it decided wherever she could obtain jurisdiction over him. This view was rejected by the appellate court, and the action of the chancellor in sustaining the demurrer was upheld. From that decision we quote:

"The general ground upon which these holdings are based was that alimony is an incident of the marriage relation; that it can only be allowed where the marriage relation exists; that it may be allowed as a part of the decree of divorce; that the severance of the marriage relation by absolute decree without alimony terminates the right to alimony. * * *

As already indicated, it is urged for the plaintiff that the Arkansas court was without jurisdiction to award alimony, and that for that reason the question of alimony should be deemed as not adjudicated. But the plaintiff voluntarily asked for and obtained from such court a final adjudication which of necessity adjudicated the full relief to which she was entitled and thereby terminated her right to further adjudication or relief. The decree became binding upon the defendant. It was equally binding upon the plaintiff."

Similar views upon the law have been announced in many other jurisdictions. Darby v. Darby (1925) 152 Tenn. 287, 277 S.W. 894, 42 A.L.R. 1379; Hazard v. Hazard (1916) 197 Ill.App. 612; Hall v. Hall (1914) 141 Ga. 361, 80 S.E. 992; Joyner v. Joyner,

131 Ga. 217, 62 S.E. 182, 18 L.R.A. (N.S.) 647, 127 Am.St.Rep. 220; Kutchai v. Kutchai, 233 Mich. 569, 207 N.W. 818; McFarlane v. McFarlane, 43 Or. 477, 73 P. 203, 75 P. 139; Howell v. Howell, 104 Cal. 45, 37 P. 770, 43 Am.St.Rep. 70; Herbert v. Herbert, 221 Mo.App. 201, 299 S.W. 840; Watson v. Watson, 168 Ga. 573, 148 S.E. 386; Long v. Long, 39 Ariz. 271, 5 P.2d 1047; Frohoch v. Frohoch, 117 Fla. 603, 158 So. 106; 42 A.L.R., Annotation, beginning on page 1385.

In Browne on Divorce, page 287, title "Alimony," it is stated: "In England, the usual rule was to apply for permanent alimony after the finding in the divorce suit, at which later date the sentences for divorce and alimony would be consolidated into one. The tendency in America is to hold an application too late where alimony is applied for after the Court has decided the divorce action."

In support of that proposition, the author cites Johnson v. Johnson, 65 How.Prac. (N.Y.) 517 (1883). In that case, plaintiff made a motion to amend the decree of divorce, asserting as a reason for same her husband's promise to pay her money from time to time, should she make no claim therefor in the divorce action. The court denied the motion, saying: "The plaintiff refrained from taking a decree providing for her support, on the promise of the defendant to pay her money from time to time. If she were content to take such a promise instead of a decree of the court, she must be content now. No charge of fraud can be based on a mere promise, and the judgment cannot be disturbed on that ground. With the entry of judgment in an action of divorce dissolving the marriage contract the jurisdiction of the Court over the parties is terminated, except to enforce the judgment or correct mistakes (Kamp v. Kamp, 59 N.Y. 212)."

See also, Schouler, vol. 2, Marriage, Divorce and Separation, p. 2012, where it is stated: "A decree of a foreign court giving the husband a divorce is usually a bar to an action by the wife for alimony, and the omission of alimony in a foreign decree for divorce is usually a...