49 A.2d 454 | Md. | 1946
On November 20, 1945, the appellant in this case filed his amended bill of complaint in the Circuit Court of *230 Baltimore City seeking partition by sale of the leasehold property No. 1613 Clarkson Street in Baltimore City. The respondents filed answers and, after hearing, the chancellor dismissed the bill. The facts in the case are not in dispute.
The property in question, stipulated to be worth $1,500, was acquired by Howard H. Gunter and Elizabeth H. Gunter, his wife, as tenants by the entireties, on April 12, 1921, some years after their marriage. It was occupied as their residence for many years. On February 9, 1943, by a decree of the Circuit Court of Baltimore City, Elizabeth H. Gunter was divorced a vinculomatrimonii from Howard H. Gunter on the ground of desertion and abandonment. The decree provided that Howard H. Gunter "pay unto the said Elizabeth H. Gunter the sum of eleven ($11) dollars per week as permanent alimony for her maintenance and support and he shall, in addition thereto, pay all taxes and ground rent on property no. 1613 Clarkson Street in the City of Baltimore." These payments were fixed by the court, upon consideration of the current earnings of the husband and not by agreement of the parties. There was no appeal from that decree, and thereafter the wife continued to occupy the premises.
On August 29, 1944, Elizabeth H. Gunter conveyed to a straw man an undivided one half interest in 1613 Clarkson Street, who in turned reconveyed that interest to Elizabeth H. Gunter for life, with full power to sell, mortgage, lease, will or encumber the estate conveyed, including the life estate and remainder, with remainder to her daughter, Mrs. Catherine Kelly.
At the time of the hearing on the bill for partition, the appellant was about twelve weeks in arrears in his weekly payments of alimony, and was also in arrears in the payment of taxes and ground rent on the property for the year 1945 amounting to $54.86 and $25 respectively. It was brought out in the testimony that a short time before the hearing he had petitioned the Circuit Court for reduction of his alimony payments, on the *231 ground of decreased earnings, but the court deferred action thereon pending the final determination of the partition case.
The chancellor, in his opinion filed in this case, recognized that the appellant had an interest in the property in question, but laid stress on the fact that he was in default under another order of the same court, and had not "shown any reduction in earnings sufficient to justify his stopping payment." The chancellor also expressed the view that the divorce decree "certainly implies that the defendant shall have the right to live in the house." The case comes here upon his decree dismissing the amended bill.
It is virtually conceded that the effect of the decree of divorce a vinculo was to convert the tenancy by the entireties into a tenancy in common. Reed v. Reed,
The nature and limitations of an alimony award were fully discussed by this Court in the recent case of Dougherty v.Dougherty,
It is true that in fixing an award of alimony the amount of the allowance may be influenced by the amount of rent required for the rent of the house in which the wife lives. Daiger v.Daiger,
A decree for the sale of the property would, of course, oust the wife of her possession, and this in turn would seem to call for a modification of the award of permanent alimony in the light of conditions then existing. As we said in Bart v. Bart,
The appellee contends that because the appellant was in default in the payments specified in the divorce decree, his bill for partition was properly dismissed. But it is sufficient to observe that the decree dismissing the bill was not conditioned upon compliance with the divorce decree, but undertook to deal finally with his right to partition. This court has held that where a litigant has been adjudged guilty of contempt, he cannot, so long as the judgment stands unimpeached "be permitted as a matter of right to make any motion, file any petition, or *234
assert any claim for relief in the particular suit in which the contempt has been adjudicated." Skirven v. Skirven,
Finding that the chancellor was in error in dismissing the bill, we must reverse the decree.
Decree reversed and case remanded, with costs.