Thomas v. Thomas

• Decision Date: 05 November 1982
• Docket Number: No. 40,40
• Citation: 294 Md. 605,451 A.2d 1215
• Parties: , 36 A.L.R.4th 489 Ida M. THOMAS v. Carlos B. THOMAS.
• Court: Maryland Court of Appeals

Page 605

294 Md. 605

451 A.2d 1215, 36 A.L.R.4th 489

Ida M. THOMAS v. Carlos B. THOMAS.

No. 40.

Court of Appeals of Maryland.

Nov. 5, 1982.

Theodore L. Mast, Lanham (Robert S. Hoyert, Bill R. Yoho, Stephen H. Kiefert, Joseph F. Gaffigan, Richard M. Dull and Hoyert & Yoho, Lanham, on the brief), for appellant.

H. Michael Rankin, Oxon Hill, appearing as amicus curiae after permission to do so was granted by the Court.

Argued before MURPHY, C.J., and SMITH, DIGGES ^*, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

We issued a writ of certiorari in this case to decide whether a reconciliation, after a divorce a mensa et thoro, permanently terminates the right to receive alimony under an alimony award contained in the same decree as the a mensa divorce.

This case began on February 10, 1977, when Carlos B. Thomas filed a bill of complaint in the Circuit Court for Prince George's County, seeking a divorce a mensa et thoro and custody of two minor adopted children. The ground alleged was abandonment in September 1976 by his wife, Ida M. Thomas. Mrs. Thomas later filed a cross bill for a divorce a mensa et thoro or in the alternative a divorce a vinculo matrimonii. She sought alimony, child support and custody of the minor children.

Carlos Thomas, having left Maryland in June 1977 for Trinidad, West Indies, to pursue his career, failed to answer Ida Thomas's cross bill. ¹ Consequently, she moved for a decree pro confesso which was granted on September 22, 1977. It provided, inter alia, for a divorce a mensa et thoro, an award of custody of the two minor children to Ida Thomas, child support in the amount of $600 per month, and alimony also in the amount of $600 per month, both to begin from September 8, 1977. Neither the part of the decree granting an a mensa divorce nor the part awarding alimony contained any time limitations. ²

Carlos Thomas returned to Maryland from Trinidad on December 4, 1977, at which time the parties reconciled and resumed cohabitation at their prior residence. Thereafter marital difficulties arose again, and on March 17, 1978, husband and wife separated for the second time when he left home and took the two children with him.

Unaware of the September 22, 1977, decree of divorce a mensa et thoro, Carlos Thomas filed a new bill for a divorce a mensa et thoro in the Circuit Court for Prince George's County on March 29, 1978. He also sought custody of the minor children. ³ On May 3, 1978, Ida Thomas filed a petition in the first case to hold her husband in contempt, alleging that he had failed and refused to make child support and alimony payments for the period of September 8, 1977, to May 1, 1978. ⁴ The amount of alimony claimed to be in arrears was $4,800. Mrs. Thomas also answered the bill in the second case, denying the allegations and pleading res judicata. The two cases were consolidated.

On May 29, 1980, after several hearings, the circuit court ordered alimony arrearages in the total amount of $4,680.00 to be assessed against Carlos Thomas. ⁵ With respect to the period of September 8, 1977, to December 4, 1977, the court found that $1,700 in alimony arrearage was owed by Carlos Thomas; however, this amount was offset with money left in a bank account by Carlos which Ida Thomas expended, resulting in an $800 alimony overpayment. As to the period of reconciliation (December 4, 1977, to March 17, 1978), the court found that Mr. Thomas "was not obligated to pay alimony" because "it seems clear that alimony is not to continue upon cohabitation and that reconciliation causes alimony to cease during the period of reconciliation." The court alternatively held that "the parties' reconciliation constituted a substantial change in circumstances justifying modification." Finally, with respect to the period following reconciliation (March 17, 1978, to December 21, 1978, the date of the hearing), the court found that Mr. Thomas owed an alimony arrearage of $4,680 ($5,480 minus the $800 overpayment). As to this last period, it was the opinion of the circuit court that the parties' reconciliation did not terminate the right to receive alimony after the second separation because "the decree [of September 22, 1977] could not be revoked without the joint application of the parties as per Article 16, Section 25 of the Annotated Code of Maryland." The trial court also held that "the parties' reconciliation alone is not a sufficient change in circumstance to permit modification of the original decree so that no future alimony was required of the plaintiff [Mr. Thomas]."

Carlos Thomas appealed to the Court of Special Appeals, contending that the reconciliation terminated his wife's right to receive alimony subsequent to their separation on March 17, 1978, and that, therefore, the court erred in ordering that he pay alimony arrearage in the amount of $4,680. He also contended that the lower court erred in denying his petition to modify the September 22, 1977, decree regarding alimony. Ida Thomas filed no cross appeal.

The Court of Special Appeals reversed, holding that Carlos Thomas was not obligated to pay alimony for the period subsequent to the second separation. Thomas v. Thomas, 48 Md.App. 255, 426 A.2d 976 (1981). While stating that a divorce a mensa is revoked only by subsequent judicial action, the Court of Special Appeals nevertheless held that alimony awarded as part of the same decree is not "inextricably" tied to the a mensa divorce, that the alimony obligation ceases upon a bona fide reconciliation, and that it is not automatically revived by a subsequent separation of the parties. In light of this holding, the Court of Special Appeals found it unnecessary to consider the contention by Carlos Thomas that the circuit court erred in denying his petition to modify the September 22, 1977, decree.

Contending "that the effect of a reconciliation upon an award of alimony arising from a decree of divorce a mensa et thoro" is not to "permanently terminate the right to receive that alimony," Ida Thomas filed a petition for a writ of certiorari which we subsequently granted. 290 Md. 723. We shall affirm.

I

Before addressing the petitioner's specific argument, a review of part of the history of divorce and alimony in Maryland would be useful.

(a)

In England, during the seventeenth and eighteenth centuries, courts did not grant absolute divorces (divorce a vinculo matrimonii ), but the ecclesiastical courts would grant divorces from bed and board (divorce a mensa et thoro ). Incidental to the a mensa divorce, the ecclesiastical courts could award alimony to the wife. Nevertheless, for most of this period, alimony had no independent existence under English law; it could be awarded only by an ecclesiastical court and only as part of a divorce decree. ⁶ This English "doctrine was adopted and followed in ... many of the States in this country, but not in Maryland." Courson v. Courson, 213 Md. 183, 185, 129 A.2d 917 (1957). ⁷

There were in fact never any ecclesiastical courts in Maryland, ⁸ and prior to the first general divorce statute in 1841, divorce in specific cases was deemed exclusively a legislative function. Crane v. Meginnis, 1 G. & J. 463, 474, 19 Am.Dec. 237 (1829). Consequently, it has been consistently held that a court of equity has no inherent power to grant either an a mensa or an a vinculo divorce, and that an equity court's jurisdiction to grant a divorce stems entirely from and is circumscribed by statutory authority. Fisher v. De Marr, 226 Md. 509, 515, 174 A.2d 345 (1961); Courson v. Courson, supra, 213 Md. at 186, 129 A.2d 917; Foote v. Foote, 190 Md. 171, 176, 57 A.2d 804 (1948); Woodcock v. Woodcock, 169 Md. 40, 46, 179 A. 826 (1935); Emerson v. Emerson, 120 Md. 584, 589, 87 A. 1033 (1913); Etheridge v. Etheridge, 120 Md. 11, 12, 87 A. 497 (1913); Outlaw v. Outlaw, 118 Md. 498, 500-501, 84 A. 383 (1912); Stewart v. Stewart, 105 Md. 297, 300, 66 A. 16 (1907); Wright v. Wright's Lessee, 2 Md. 429, 448, 56 Am.Dec. 723 (1852); Helms v. Franciscus, supra, 2 Bland at 568; Fornshill v. Murray, 1 Bland 479, 482-483, 18 Am.Dec. 344 (1828). ⁹

The first statute in Maryland authorizing equity courts to grant divorces, both a mensa and a vinculo, was Ch. 262 of the Acts of 1841 which, as amended and expanded in subsequent years, is found in Code (1957, 1981 Repl. Vol.), Art. 16, §§ 24 and 25. Notwithstanding the 1841 authorization for judicial divorces, this Court held that the General Assembly could by statute grant divorces in individual cases. Wright v. Wright's Lessee, supra, 2 Md. at 447-451. ¹⁰

Following the 1841 statute, this Court took the position that divorce proceedings should be governed by the principles of the English ecclesiastical courts insofar as those principles were consistent with Maryland statutes. Thus in J.G. v. H.G., 33 Md. 401, 406-407, 3 Am.Rep. 183 (1870), the Court summarized:

"In respect to the mode in which Courts of Equity shall exercise jurisdiction in divorce cases, and the principles by which they are to be governed, the Code is silent. But from the nature of the jurisdiction itself, it has always been considered that the decisions of the English Ecclesiastical Courts, in similar cases, may properly be referred to as precedents; and they have uniformly been cited and relied on as safe and authoritative guides for the Courts of this State in disposing of cases of this kind." ¹¹

One of the principles of the ecclesiastical courts was that an a mensa divorce decree was extinguished upon the reconciliation of the parties. See the discussion by Chancellor Kent in Barrere v. Barrere, 4 Johns Ch. 187, 191-192 (N.Y.1819) (suggesting that this was due to the form of decree used by the courts). See also T. Poynter, A Concise View of the Doctrine And Practice Of The Ecclesiastical Courts In Doctor's Commons On Various Points Relative to the Subject of Marriage and Divorce, p. 182 (2d ed. 1836). Some of the divorce statutes in this...