Stewart v. Stewart
| Decision Date | 01 March 1907 |
| Citation | 66 A. 16,105 Md. 297 |
| Parties | STEWART v. STEWART. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge.
Bill by Lottie J. Stewart against Randall Stewart. From a decree for plaintiff, defendant appeals. Reversed and remanded.
Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS JJ.
C. Dodd McFarland, for appellant.
W Purnell Hall, for appellee.
The bill in this case was filed by the appellee against the appellant for divorce a mensa et thoro; the only ground alleged being adultery. The bill, after alleging that the defendant had been guilty of the crime of adultery with a woman specifically named, and others unknown to the plaintiff, within six months preceding the filing of the bill, further alleged that the defendant is possessed of certain leasehold property on Druid Hill avenue, in Baltimore City, and that he conducted a restaurant and saloon on Lee street, in Baltimore, which business yielded him over $100 a week; that she had not lived or cohabited with the defendant since September 7, 1906, when she discovered his adulteries though she is destitute of means of support, or of prosecuting her suit for divorce; and that the defendant had informed her "that he intended to dispose of his dwelling and business place, and that she believes he will do so to the great injury of your oratrix in the premises, and that only by the writ of injunction can your oratrix's marital rights be fully protected until the final determination of this suit." The prayer of the bill was for alimony, both pendente lite and permanent, and for a reasonable sum of money for employment of counsel and expenses of her suit; also, for an injunction restraining the defendant "from disposing of or assigning said leasehold property or his place of business, or the contents thereof until the final disposition of the suit." An injunction was issued immediately upon the filing of the bill, in the precise language of the prayer therefor. In a few days thereafter the defendant filed an answer, denying that he had been guilty of any act of adultery, and alleging that the plaintiff abandoned him on September 7, 1906; that they had resided on Druid Hill avenue, though he conducted his business on Lee street; and that about the date last mentioned he proposed for reasons of economy to rent out his dwelling and remove to the building in which he conducted his saloon and restaurant, and, to gain the plaintiff's consent offered to give her the rent of the dwelling, about $25 a month, and allow her all the profit she could make by managing the restaurant, but that she declined to live with him at his place of business. He alleged that he purchased the leasehold property mentioned for $1,500, paying $300 of his own money, and giving a building association mortgage for $1,200, on which he paid $7.97 weekly; that he had only been in business on Lee street about four months, and that the expenses were equal the receipts, and that he had no other property, but that the plaintiff had furniture worth $400 or $500. He also denied the allegations of that paragraph of the bill in which plaintiff stated he had informed her he intended to dispose of his dwelling and place of business, and that she believed he would do so, to her injury, and further denied that she was entitled to a divorce a mensa et thoro or to any relief whatever under the allegations of her bill, because she does not charge either cruelty of treatment, excessively vicious conduct, or abandonment and desertion; these being the only three causes for which a divorce a mensa et thoro may be decreed as he alleges, under section 37 of article 16, Code Pub. Gen. Laws, which is the only statute in this state relating to divorces a mensa et thoro, and the bill praying specifically for such decree.
On the same day this answer was filed the defendant moved for the dissolution of the injunction. Upon the filing of the bill on September 8, 1906, an order was passed the same day requiring the defendant to pay the plaintiff $25 as counsel fee for her solicitor, and $7.50 per week as alimony pendente lite, unless cause to the contrary was shown on or before September 25, 1906, provided a copy of that order was served on defendant on or before September 13, 1906, and service was made September 8, 1906. On October 12, 1906, the motion to dissolve was refused, and the order of court as to alimony and council fee was made absolute, and appeal was entered from that order same day. There is nothing in the record to show whether any testimony was taken, nor does it appear whether any argument or hearing was had at or before the passage of the order appealed from. The principal question in the case, and the one which goes to its root, is whether the court has power to decree a divorce a mensa et thoro, when that is the specific decree sought, and the only ground alleged is adultery.
Prior to Act 1841, c. 262, all divorces emanated from the Legislature. By that act jurisdiction "of all applications for divorce" was given to the Chancellor or to the county courts of the state, and section 21 of article 3 of the Constitution of 1851 forbid the granting of any divorce by the General Assembly, and this has ever since continued to be the fundamental law in this state. The transfer of jurisdiction from the General Assembly to the courts thus became exclusive, but full discretion was not conferred upon the courts. From a period before the Revolution, however, the Court of Chancery in this state had full jurisdiction in cases of alimony, though no divorce had been decreed or was asked for, and though the case made by the bill and proof would not, according to the ecclesiastical courts in England, entitle her to a divorce a mensa et thoro. Hewitt v. Hewitt, 1 Bland, 101. Jamison v Jamison, 4 Md. Ch. 289. In 2 Nelson on Divorce & Separation, p. 979, the author says: In 14 Cyc. p. 74, it is said: "In some jurisdictions either kind of divorce may be granted in the discretion of the court." We have examined the cases referred to in this passage, and find that they all rest upon construction of the statute. Thus, in Collier v. Collier, 16 N.C. 352, the court said: "The Legislature had transferred that jurisdiction, with full discretion, to the courts." And in Sullivan v. Sullivan, 112 Mich. 674, 71 N.W. 487, where the complainant asked for a decree of separation, and not for one a vinculo, and the court decreed the latter, justifying its action by the statute, one section of which provided for a divorce...
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