45 A.2d 463 | Md. | 1946
The appellee (wife) was divorced a vinculo matrimonii from the appellant (husband) by decree of the Circuit Court for Allegany County on November 5, 1929. By that decree the appellant was ordered to pay the appellee for the support of the minor son of the parties, Reginald Borchert, $25 per month until the son reached the age of twenty-one years. The guardianship and custody of the son was given to the wife. The appellant was summoned in the divorce action by service on his attorneys, who accepted such service for him, and entered their appearance in the case as his counsel.
On January 8, 1945, the appellee, after some preliminary proceedings which have no bearing on the issues now presented, filed her petition stating that shortly after the passage of the divorce decree, the son, Reginald, became afflicted with a serious and incurable malady that has permanently and wholly incapacitated him physically and mentally and his condition has progressively become worse so that for some time now he has been a helpless invalid. The petition further shows that the said son arrived at the age of twenty-one years on September 11, 1944, but that he continues under disability; that the appellee cannot properly provide for him and that the appellant is a man of comfortable means, living in West Virginia where he owns valuable property and receives a large income. The petition prays that the decree be amended to require appellant to pay a reasonable *589 and adequate sum for the support of the son as long as he continues under disability. The court passed an order setting the petition for hearing, provided a copy of the petition and order be sent by registered mail to the appellant and his solicitors of record in the case.
Thereupon the present solicitors for appellant entered their appearance specially for him "to resist the petition," and subsequently filed a demurrer to the petition, stating that it is filed by the defendant (appellant) by his "solicitors by special appearance for the defendant." This demurrer raises four grounds of objection: first, that appellant is a resident of West Virginia and is not subject to the jurisdiction and orders of the Maryland Court unless personally served; second, that any increase in the amount allowed by the decree would be in the nature of a decree in personam which could only be had after personal service; third, that counsel fees, prayed in the petition, could not be allowed because petitioner is no longer the wife of appellant and, fourth, that the appellant is no longer liable under the decree for the support of the son since he has attained the age of twenty-one years.
The demurrer was overruled April 12, 1945, and the husband required to answer, and an appeal was taken from this action, which constitutes the first appeal in this record. Thereafter, on a subsequent petition, to which an answer was filed by the defendant through his solicitors, no longer attempting to appear specially, the court passed an order on June 28, 1945, directing the husband to pay a counsel fee of $250 to the solicitor for appellee for his services in the trial below and to be rendered on the appeal here. An appeal was taken from this order, which is the second appeal in the record.
The appellant contends here in his brief that the decree has been fully performed and has expired, that this is an attempt to engraft what ought to be an original proceeding on a decree for divorce which has no relation to the subject matter of the present proceeding, that he is a non-resident and the court is without jurisdiction *590 over him without personal service and that as this is not a divorce proceeding the court cannot require him to pay a counsel fee.
The jurisdictional question was not pressed in the argument and may be readily disposed of. We know of no practice which authorizes a special appearance for the purpose of filing a demurrer. And the pretense of a special appearance was abondoned when the defendant's answer was filed to the petition for counsel fee. The court had jurisdiction over the defendant in the original proceedings, and when his new counsel filed his demurrer and his answer to the counsel fee petition, he was again before the court. Having voluntarily appeared, he cannot be heard to say that the court is without jurisdiction over him.
We are not unmindful that the first appeal in this case is from an order overruling a demurrer to a petition. Under ordinary circumstances such an order is not a final one from which an appeal is allowed. Stockham v. Knollenberg,
There was no common law obligation to support adult, incompetent children; neither was there any to support infant children although an obligation, both moral and legal, was early recognized in this State. Addison v. Bowie, 21 Bl. p. 626. The statute of 43rd Elizabeth, Ch. 2, imposes upon fathers and others an obligation to support poor, old and impotent persons. This English *591
statute, however, is not one of those in force in Maryland and we have no such similar statute governing the support of adult, incompetent children. We have, of course, a statute making a criminal offense the non-support of minor children. Code, 1939, Art. 27, § 89, Ch.
In 1 Blackstone's Commentaries, p. 449, it is said, "No person is bound to provide a maintenance for his issue unless where the children are incompetent and unable to work, either through infancy, disease or accident, and then is only obliged to find them with necessaries * * *." This statement is based upon the statute of Elizabeth above referred to. The doctrine of liability in a father to support an incapacitated adult child seems to have permeated the courts of this country, in many cases without any statutory enactment to support it. The obligation is set out in a great many cases, often in those *592
judicial expressions known as obiter dicta. In some cases the basis of the liability is lack of emancipation. In others it is stated to be the moral duty and it is indicated that the legal duty follows the moral duty. However vague and unsatisfactory such statements are, it must be concluded, in view of the many decisions so holding, that there is now a tendency in this country, whether based upon local statutes or upon a modern judicial expansion of the common law, to recognize a duty imposed upon a parent to support his incapacitated child. Among the cases discussing the subject are Cromwell v. Benjamin, Sup. 1863, 41 Barb., N.Y. 558; Alger v. Miller, 56 Barb. 227; Matter of VanDenburg,
The appellant in his brief states, "We do not dispute the obligation of the father to care for children, no matter what age, physically or mentally unable to take care of themselves and agree with this general statement of the law." In view of this concessum it is unnecessary to go further now than to say that this is the law of this case.
The method of enforcement of such duty presents an entirely different question. There is no statute making the failure to perform it a criminal offense. The obligation to provide a minor child with necessaries has been held to be one at law although there is at least an intimation that in the proper case, such an allowance might be made in a divorce proceeding after a final decree of divorce had been entered. Carter v. Carter, *593
In none of these cases except the earlier Ill. App. case ofFreestate v. Freestate, supra, and the N.Y.S. case of Halstedv. Halsted, supra, is there any interpretation of the several divorce statutes considered similar to that asked in the present case. And in the Halsted case, there is only a suggestion to that effect.
However desirable it may be for some power to exist by which a father may be compelled to support his son, under the circumstances set out in these proceedings, *595
the Legislature has not seen fit to make the failure to do so a criminal offense although it has so designated such failure in other domestic situations heretofore mentioned. The omission by the legislative branch of the government of such a statute is an indication that the failure to support an incapacitated child is placed by it on a different footing from the failure to support a minor child. We cannot now without further legislative action hold that the divorce statute attempted to be invoked in this case is enlarged to include other than minor children. The similar statute, Article 16, § 85, has been held by this Court to apply to minor children (Barnard v. Godfrey,
The second appeal has to do with the allowance of a counsel fee. It is resisted on the ground that, as the parties are no longer husband and wife, the wife is not entitled to have any such allowance from her ex-husband. That is true as a general proposition. Winchester v. Winchester,
Orders reversed, with costs.
HENDERSON and MARKELL, JJ., concur in the result.