Warren v. Warren, 41

• Decision Date: 18 November 1958
• Docket Number: No. 41,41
• Citation: 218 Md. 212,146 A.2d 34
• Parties: Stanley J. WARREN v. Iris May WARREN.
• Court: Maryland Court of Appeals

Page 212

218 Md. 212

146 A.2d 34

Stanley J. WARREN v. Iris May WARREN.

No. 41.

Court of Appeals of Maryland.

Nov. 18, 1958.

Joseph Loeffler (Benjamin Unger and Harry E. Goertz, Baltimore, on the brief), for appellant.

Robert J. Gerstung, Baltimore (Howard A. Sweeten, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The appellee wife was granted a decree of divorce a vinculo matrimonii on August 13, 1956, on the ground of adultery against the appellant husband. The appellant was required, by stipulation incorporated in the divorce decree and subject to the further order of the Court, to pay to the appellee the sum of $25 a week as permanent alimony and $15 a week for the support of their minor child. This is an appeal from an order passed on February 28, 1958, dismissing appellant's petition for modification of the alimony and support portions of the decree.

One month after the divorce, the appellant married the co-respondent, who was then pregnant with his child, and since that time they have had a second child. It is conceded that the appellant's income is substantially the same now as it was when the alimony and support payments were originally agreed to and incorporated in the decree. This appeal therefore raises, first, the issue of whether his remarriage and the birth of two children in and of themselves constituted such a change of circumstances as to justify a modification of the decree, and, secondly, whether the trial court abused its discretion in refusing to allow evidence to be introduced to show the various demands presently being made upon appellant's income. We will consider these questions in the order mentioned.

It is not within the province of this Court, in considering a petition for modification, to review the propriety or sufficiency of the original award. Our inquiry is limited to determining whether or not the Chancellor was clearly in error in finding that the appellant has shown no such change in the circumstances of the parties since the alimony and support decree as would warrant its reduction. Langrall v. Langrall, 145 Md. 340, 345, 125 A. 695, 37 A.L.R. 437.

The appellant admitted that his income has remained substantially the same since the divorce, and he offered no evidence to controvert the appellee's contention that a reduction in payments would work a hardship upon her and the infant child of the parties. He alleged that 'circumstances have now arisen which render it impossible without great injury to himself and to those to whom he owes a natural and legal obligation to continue payments in this sum'; but the only 'circumstances' he showed were his second marriage and the birth of two children.

In the Langrall case, supra, as in this case, there was an agreement to pay alimony which was incorporated in the decree. It was there held (145 Md. 344, 125 A. 697) that: 'The remarriage of the appellee was not such an occurrence as would entitle him to a reduction of the alimony. The obligation imposed upon him by the decree was not subject to that contingency. * * *' The opinion does not indicate whether the appellee in that case had any children by his second marriage, and does not consider what effect, if any, the birth of children as a result of the second marriage would have. There was no child of the first marriage.

In Marshall v. Marshall, 164 Md. 107, 114, 163 A. 874 it was held that the fact that the husband had assumed other marital and parental obligations was not an adequate ground for exempting him from his decreed liability. (Emphasis supplied). The Langrall case was cited in support of this holding, but it should be noted that the payments which the husband had agreed to make in the Marshall case, though incorporated in the decree, were held not to constitute alimony.

The appellant contends that the Langrall case is inapplicable because the decision therein 'rested upon an agreement between the parties while in this case the sum allowed to the wife in the decree is alimony in the legal sense and that amount and the amount allowed for the support of the child are both subject to the further control of the court.' It is true that Marshall v. Marshall, supra, and Emerson v. Emerson, 120 Md. 584, 87 A. 1033, which he also distinguishes on this ground, dealt with petitions for modification of what was held in those cases not to be alimony; but in the Langrall case it was clearly held that the portion of the decree which incorporated the agreement between the parties did constitute a decree for alimony. The Court in that case treated the agreement as having been merged in the decree and in fact spoke of 'the obligation imposed upon him by the decree.' (Emphasis supplied). Subsequently this Court said in Knabe v. Knabe, 176 Md. 606, 613, 6 A.2d 366, 369, 124 A.L.R. 1317, '* * * and in any event, whether the agreement is or is not incorporated in the decree, the provisions of the decree and not those of the agreement conclusively establish the nature of the allowance, Emerson v. Emerson, 120 Md. 584, 596, 87 A. 1033, and if the allowance in the decree falls within the definition of alimony, even though it is founded on an agreement the court has the same power to enforce it which it would have had had there been no...