Stein v. Stein, 390

• Decision Date: 08 November 1968
• Docket Number: No. 390,390
• Citation: 247 A.2d 266,251 Md. 300
• Parties: Anne L. STEIN v. Irwin B. STEIN.
• Court: Maryland Court of Appeals

Page 300

251 Md. 300

247 A.2d 266

Anne L. STEIN v. Irwin B. STEIN.

No. 390.

Court of Appeals of Maryland.

Nov. 8, 1968.

Stanley B. Frosh, Bethesda, for appellant.

Charles Norman Shaffer, Rockville (Shaffer, McKeever p Fitzpatrick, Rockville, and H. Don Cummings and Davidson, Sharkey & Cummings, Washington, D. C., on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, FINAN, SINGLEY and SMITH, JJ.

SMITH, Judge.

Appellee, the husband, was granted a divorce a mensa et thoro from appellant on March 10, 1966, on the ground of desertion on August 4, 1965. Appellee filed a supplemental bill of complaint on March 2, 1967, praying for a divorce a vinculo mattrimonii. The chancellor granted the divorce on the basis of the prior desertion.

The wife complains to this Court that the trial court erred in granting a divorce on the ground of desertion, that she should be allowed alimony notwithstanding the fact that she was determined not to have grounds for divorce, that the counsel fees allowed to her attorney were inadequate, and that she should have been allowed costs of depositions and expenses incurred by way of detective fees.

The wife denies that her desertion was res judicata by reason of the granting of a divorce a mensa et thoro to her husband on the ground of her desertion. What the wife really seeks to do here is to litigate again the question of whether she had proper cause for moving out of the home of the parties. In the first action she filed suit for divorce a mensa on the ground of constructive desertion. The husband countered with an action against her for desertion. The chancellor held that she did not have good cause for leaving the home. She did not appeal.

In Ashman v. Ashman, 201 Md. 445, 94 A.2d 257 (1953) the wife had previously been granted permanent alimony on the ground of desertion, an action affirmed by this Court in Ashman v. Ashman, 194 Md. 565, 72 A.2d 250 (1950). The husband then filed in the same proceeding a petition alleging a voluntary separation as of the date of the prior determined desertion, praying a divorce a vinculo matrimonii and for termination of the alimony decree. We there said:

'* * * Here the appellant seeks, by petition in the same case, to render nugatory the action of the chancellor and the action of this Court in that case by an allegation which, if true, he was certainly aware of during the pendency of the case and did not disclose to this Court either in his brief or in the argument. Here is attempted a reargument of the former appeal. The law requires that there should be an end of litigation, and where a party has had a full and fair opportunity presented of making all the defenses at his command to an asserted right or claim, and being well aware thereof does not do so, he cannot later be heard to say that he did not avail himself of them. (citing authorities)' Id., 201 Md. at 450-451, 94 A.2d at 259.

The prior a mensa decree was binding upon the parties as to the lack of justification of the wife for leaving the home of the parties. See Besche v. Besche, 209 Md. 442, 121 A.2d 708 (1956); Zukerberg v. Zukerberg, 188 Md. 428, 53 A.2d 20 (1947); and Kruse v. Kruse, 183 Md. 369, 37 A.2d 898 (1944).

The doctrine that there can be no grant of permanent alimony unless the wife can show grounds sufficient to support a decree of divorce, either a vinculo a a mensa, is so well established it ought not be necessary to reiterate it. Golas v. Golas, 247 Md. 621, 233 A.2d 804 (1967); Levy v. Levy, 229 Md. 103, 181 A.2d 663 (1962); and Russell v. Russell, 224 Md. 329, 167 A.2d 770 (1961). Appellant urges upon us that we should relax this absolute rule. Such relaxation must come, if it is to come, from the General Assembly.

The lower court allowed a fee of $250.00 to the wife's attorney. In making the award, there was an indication that the allowance was for the wife's role in the litigation for the...