Thomas v. Thomas

• Citation: 426 A.2d 976,48 Md.App. 255
• Decision Date: 11 March 1981
• Docket Number: No. 895,895
• Parties: Carlos B. THOMAS v. Ida M. THOMAS.
• Court: Court of Special Appeals of Maryland

Page 255

48 Md.App. 255

426 A.2d 976

Carlos B. THOMAS v. Ida M. THOMAS.

No. 895.

Court of Special Appeals of Maryland.

March 11, 1981.

WILNER, Judge.

We are presented here, for the first time, with a most interesting aspect of the law of divorce and alimony, one that involves not only the interpretation of a century-old statute but the even more ancient and arcane tenets of English ecclesiastical law as they have filtered down to us through the Maryland common law. What is the effect of a reconciliation and subsequent parting of the ways upon an award of alimony arising from a decree of divorce a mensa et thoro ?

Appellant commenced this proceeding on February 10, 1977, with the filing of a Bill in the Circuit Court for Prince George's County seeking a divorce a mensa et thoro from appellee. That action was docketed as DR 77-463. Acknowledging himself to be a citizen of Trinidad, but a permanent resident of the United States and a legal resident of Prince George's County, he averred that appellee had, without just cause, deserted him and the marital abode on September 18, 1976. In addition to the divorce, he sought custody of the two adopted minor children of the parties who, at the time, were residing with him.

Appellee answered this Bill on June 23, 1977, denying the accusatory allegations and asserting that she then had custody of the children. It appears that, also on June 23, appellant returned to Trinidad, having accepted employment there; and at some point appellee moved back into the marital home. On July 7, 1977, appellee filed, in the same case, a cross-bill for divorce a mensa et thoro, or, in the alternative, for divorce a vinculo matrimonii, claiming desertion, cruelty, and adultery on appellant's part. The allegation as to desertion was that appellant unjustly abandoned her on February 25, 1977.

According to the certificate of service appended to it, a copy of the cross-bill was delivered to appellant's counsel, and, when no answer to it was forthcoming within the 15 days allowed by law, appellee, on July 26, 1977, moved for a decree pro confesso. On August 4, 1977, such a decree was entered, and the matter was referred to the Domestic Relations Master to take testimony in support of the cross-bill.

On September 8, 1977, the master conducted a hearing on the cross-bill. Appellant, of course, was not present, and indeed claims that he had no knowledge either of the decree pro confesso or the proceeding before the master. Based upon the evidence presented at the hearing, the master recommended, and on September 22, 1977, the court entered, a decree of divorce a mensa et thoro grounded upon appellant's desertion occurring February 25, 1977. The decree also awarded custody of the children to appellee, ordered appellant to pay to appellee the sum of $600 a month child support and $600 a month alimony, both accounting from September 8, 1977, and ordered him to contribute $1,800 toward appellee's counsel fees.

Appellant, still in Trinidad, remained blissfully unaware of all this. He returned to the United States on December 4, 1977, and, believing all prior proceedings to have been dismissed, resumed cohabitation with his legally estranged wife and his children at the marital abode. Unfortunately, this was to be but a temporary reunion. On December 30, 1977, appellee, for reasons not appearing in the record, set fire to the marital home, forcing the family to seek other quarters. ¹ They remained together, nevertheless, until March 17, 1978, when appellant left, taking the children with him.

Twelve days later on March 29 appellant, still unaware of the September decree, filed a new bill for divorce a mensa et thoro (docketed as DR 78-1149), charging appellee with cruelty and constructive desertion as of March 17, 1978. He averred general conduct on her part that was violent, humiliating, and degrading to him, and specifically mentioned her burning of the marital home and her physical abuse of the children, all of which made the marriage intolerable and forced him (and the children) to leave.

Appellee responded with an answer denying the accusatory allegations and claiming, in a plea of res judicata, that all issues in the action had already been decided by the decree rendered on her cross-bill in the earlier action. She responded also with a petition filed in the other case (DR 77-463) to hold appellant in contempt of court for failing to pay the alimony and child support ordered in the September decree. It was these pleadings that first actually apprised appellant of the subsiding divorce and his obligation for spousal and child support.

Appellee's contempt petition in DR 77-463 came before the master on July 7, 1978. At that hearing, appellant filed a written petition to modify the September, 1977, decree, asserting therein (1) that he was unaware that the decree had been passed, (2) that subsequent to the decree the parties had reconciled, and (3) that he adopted "the statements of fact contained in his Bill of Complaint filed in Equity No. DR 78-1149," which he prayed be incorporated by reference. He asked in his petition for custody of the children and a striking of all sums "previously awarded for child support, alimony, and attorney fees...."

We are told that, because appellee had no opportunity to answer this petition, it was not considered at that time by the master. Upon the evidence presented, however, the master concluded that (1) by stipulation of the parties, appellant should have custody of the children, (2) appellant not be adjudicated in contempt of court, and (3) "the arrears in child support and alimony be assessed at zero" as of July 7, 1978. This last recommendation arose from the master's finding (1) that when appellant went to Trinidad, he left $10,000 in a joint bank account, one-half of which was his, and that appellee spent the full amount for the support of herself and the children, and (2) that "by reconciling, (appellant's) obligation to pay child support and alimony to (appellee) terminated."

Appellee excepted to the recommendation as to arrearage, asserting that the master erred in concluding that "the parties' temporary reconciliation rendered this Courts' (sic ) decree a nullity ..." and in recommending that no arrearage in alimony be assessed. She asked that the court enforce the provision in the decree for alimony and remand the matter back to the master to assess alimony arrearages based upon the validity of the subsisting decree.

On December 7, 1978, the court filed an opinion and order agreeing in part and disagreeing in part with what the master had done. It agreed that the obligation for alimony had terminated, or been suspended, during the period of the reconciliation, but not before and not after. There was little dispute as to the accrual of alimony during the three-month period prior to the reconciliation; appellant's only defense as to that was that the $3,600 accrual for that period was offset by his share of the bank account expended by appellee. As to the reconciliation period itself, the court seemed to draw upon two theories: first, that, as a matter of law, alimony actually ceases during such a period; and, second, that a reconciliation constitutes "a substantial change in circumstances justifying modification." Neither theory, however, was applied to the period following the second break-up in March, 1978. As to that, the court concluded that a "reconciliation alone is not a sufficient change in circumstance to permit modification of the original decree so that no future alimony was required of (appellant)."

Upon this analysis, the court found an arrearage of alimony and child support for the pre-reconciliation period of $3,600, no arrearage for the period of reconciliation, and an alimony arrearage of $2,200 for the nearly four-month period between the second separation and the master's hearing. This total of $5,800 exceeded appellant's $5,000 share of the bank account. The court thereupon remanded the case to the master "for further hearing and assessment of alimony arrearages, in accordance with this opinion."

On remand, the master held another evidentiary hearing and considered the matters at issue as of then (December 21, 1978). In his second report, he first noted his disagreement with the court's conclusion that alimony did not terminate by reason of the reconciliation; but he proceeded nevertheless in accordance with that determination. As to the period preceding the reconciliation, he found a gross arrearage of $3,400 ($1,700 alimony and $1,700 child support). ² Against that he applied appellant's $5,000 share of the bank account, $2,500 of which he allocated to alimony and $2,500 to child support. That left an $800 credit, as to each, in appellant's favor.

"Assuming, without finding, that (appellee) is entitled to alimony after the 17th day of March, 1978," the master found an accrual of alimony in the amount of $5,480 for that period ($600 a month for the nine months, four days to the date of the second hearing). Deducting the $800 credit left over from the bank account, he found a net accrual of $4,680. Finding, however, that appellant was fully justified in leaving the home in March by reason of appellee's conduct (which he concluded amounted to a constructive desertion), the master recommended that no arrearage be assessed and that the decree be amended to terminate alimony payments from and after March 17, 1978.

Once again appellee filed exceptions, contending, among other things, that the master erred in finding a constructive desertion by appellee and that he erred as well in recommending that no arrearage be assessed. Once again, the court agreed. It concluded that, as the case had been remanded to the master solely to calculate an arrearage, the master exceeded the scope of his authority in concluding that appellee was guilty of a constructive desertion and that he therefore erred in considering such...