*1 JOHNSON v. JOHNSON Term, October [No. 1952.] *2 June Decided 1953. *3 J., argued Sobeloff,
The cause was before C. and Delaplaine, Collins, Hammond, JJ. and Henderson McQuaid appellant. T. for the
Wilfred Koch, Paul R. with whom was Karl F. Steinmann on brief, appellee. for J., opinion Henderson, delivered the of the Court. appeal 23,
This from a decree of 1952 December dismissing petition a appellant filed a to obtain of Lines, release his stock in Johnson Motor Inc. held Court, order, the Clerk pay- of under court to secure ment of of a week to his former wife and $100 a week to infant his son. $25 The support were awarded a decree of the Circuit Court City granting No. of Baltimore her a divorce a mensa ground on the of on 15, By desertion November 1948. Johnson, nonresident, enjoined, this decree was also subject court, order disposing further of of from his time enterprise. At
partnership interest a local on partnership process of dissolution amounting 15, interest, December 1950 Johnson’s paid into $51,000, was court secure about ordered stipula- support. a payments Under of January 5, passed parties, tion the court on court, decree, subject order of consent to further a releasing upon he condition that sum to Johnson assign clerk of certain stock to the court deliver him, having Lines, Inc., a owned in Johnson Motor present of this par $28,000. value The book value $225,000. stock is about
Meanwhile, January 18, on Johnson obtained ground from his wife on the decree divorce vinculo cruelty by Dade Circuit Court for a decree alimony, County, Johnson did not ask Florida. Mrs. 21,1950 February passed supplemental on the court but “nothing declaring this decree shall any plaintiff in manner held or to relieve the construed pro- complying from with the and maintenance by the rendered Circuit visions that certain decree Maryland, City, on 2 of Baltimore State of Court No. * * November, day On November 15th court petitioned Johnson alimony award, to eliminate the its decree amended divorce, petition was but in view of the Florida voluntarily passage or about the time of dismissed at January the consent decree of 1951. *4 May 14, in lower 1951 Mrs. Johnson filed On petition for and maintenance” an “amended court reciting Dade of the Circuit Court for that the decree by January 18, County, appealed 1950 had dated been ground on the Supreme Court of Florida her to the issues, Mary- previous in had decided been that judicata,. proceeding and were res That court land Maryland opinion. asked the court without She affirmed provide to to funds its maintenance award increase to Supreme petition certiorari Court perfect a (It may from the Florida decree. be States the United
551 subsequently denied noted certiorari was 941, 72 Supreme Johnson, 342 U. S. Johnson Court. v. 550, 700). 90 S. Ct. L. Ed. 30, July 1951, 2 Baltimore
On
the Circuit
No.
15,
City passed
decree
November
decree
its
provision”
1948
modified
“be
to increase the maintenance
$2,058.70
expenses
and
pay
and that
“the costs
Johnson
deposited
incurred and
with the
estimated costs to
States,
Supreme
Clerk of
Court of
United
”
* * *
perfect
plaintiff’s petition
order
certiorari
[for]
appeal to
On
this court the decree was reverse'd. Johnson
329,
Johnson,
v.
199
It was out cited the hus questioned band’s domicile in Florida was never and actively appeared the wife and contested the The case. question divorce”, v. “divisible discussed Estin Estin, 1213, 541, 1561, 334 U. S. 68 S. 92 Ed. Ct. L. Commonwealth, foreshadowed v. Esenwein 325 U. S. 279, 1118, 1608, presented. L. S. Ct. Ed. is not In Lynn Lynn, 193, Y.N. 2d it N. E. was held New York Appeals Court of that a divorce Nevada, following personal appearance, decree in even grant alimony where the court failed or the wife it, alimony provisions nullified prior seek judg of a separation ment of obtained her in New York. It recognized question was was one of New York Rodda, In law. Rodda v. 185 Or. 200 P. 2d 202 P. personal 2d that even without appearance an by publication absolute divorce obtained Oregon law, had the although same effect under under Oregon required the Estin case give was not it that effect the full faith and credit clause of the federal constitution. appeal the former question we discussed validity
also the and effect supplemental of the court, of the Florida “If said: court actually possesses any which seems to be reserved to decree, obviously it in the Florida neither the Florida decree nor full faith credit clause *5 juris exercising
prevents
Maryland
from
the
court
such
Maryland
however,
If,
Maryland law the
diction.
under
authority
permitted under the
court
no
to
has
act
decree,
obviously
has no
the Florida court
Florida
then
Maryland court,
power
upon
to
the
confer
duty,
right
Maryland
or
court
no
under
the
otherwise,
to exercise
the
faith
credit clause or
full
Assuming
jurisdiction.”
199 Md.
337.
such
enough
comprehend
to
the Florida
was broad
decree
Mary
provisions
the
modifications of
maintenance
Maryland
decree,
court has
land
we
that “In
authority
make, change
provision
or enforce
no
to
wife
payment
former
a former husband
reserved, expressly
alimony
power
impli
(except
or
modify
cation,
provision
in a decree for
vinculo)
money’. Tabeling
Tabeling,
or
v.
divorce a
‘suit
389;
Staub,
;
A.
v.
Md.
157 Md.
Staub
[170
202]
Tome,
im
Nor we find do merit in the contention jurisdiction only challenged by that could petition be to modify original Maryland decree, by peti- and not modify security. tion to the order as petition to The alleged jurisdiction a lack of to enforce the It award. generally is decree, more, a final without term- award, although inates an it has been also held that accruing installments filing down to the time of of petition 1423, are collectable. See note 1 A. 2d L. R. question presented No 1436. such in the instant case payments right as are not in arrears. The to retain security not survive the could termination of the therefore, “When, award. pass to ended, no can survive as to matters purely ancillary object.” McCurley McCurley, v. 185, Johnson, supra, 60 Md. v. 189. Johnson 199 Md. 339, 329, 520, 86 A. 2d 524. appellee
The contends that even if the award term- upon passage decree, inated the Florida which stayed Supreme not was Court Florida or Supreme States, the United Court the award of alimony passed 15, on November 1948 was converted obligation by into a contractual consent decree and stipulation security as to substituted January 5, filed 1951, pointed after the. Florida decree. It is out that “subject order was made to such further order may from time required to time be in original accordance with the 15, Decree November any petitions party of either been or shall filed be hereafter herein.” We do not agreement, construe this as an clause either as to the type amount or the or award amount security, were, which matters this order previous change by upon petition subject orders, the court made voluntary action Nor do think that or we otherwise. petition dismissing pending appellant Moreover, modify waiver. amounted the award did not stipulation on which the order based any property settle- agreement contain contrary “stipulated expressly ment, on the but in lieu said agreed of said stock that the substitution rights of either prejudice to the without cash shall do in the instant case party The facts herein.” Marshall, bring Marshall the rule laid down it within there cited. 163 A. and cases 164 Md. *7 instant case opinion filed in the The in his chancellor only to the question presented is as- stated, “The here Clerk, of security deposited hands the which is now in the obliga- that, is an it conceded that there still as to is and child, of the support one of the which is tion for the decree, and, consequently, there since the provisions of justified, obligation, this court would still be is that security history case, requiring of the view of the obligation, since the performance of and for the by agreement parties, security of the was selected agreement stipula- of deposited as a result an them, signed is like a consent decree tion between ought to of disturb in the which the court absence overreaching imposition, or some violent on fraud or parties wholly unjustified part which the of one the is by circumstances. And in view of fact that the the the child, obligation support the for the as conceded sides, exists, petition the court feels that the both still security discharge of of the for the the hands the ought denied.” to be Clerk indicated, argument we think the
As we have to obligation pay amount fixed contractual sustained, cannot in lieu be award not barred consent petitioner stipu- decree and challenging from the court’s lation to enforce stipulation petition Nor did the foreclose a for it. further or modification in amount. It is substitution conceded here, below, as to as it the decree was coneeded may ap- support for the child is still in effect and peti- against propriately nonresident secured fact, only petition court tioner. averred payment of was without “insofar as the concerned, support Mary B. Johnson modify and that should now its Honorable January 5, your Decree as to release Peti- so * ** * * * being tioner stock now to secure payment alimony,”. think We the court its abused refusing modify decree, discretion in its insofar as payment it secured an award week $25 which, deposit of a child of stock according testimony, present to the has a book value of $225,000. record, say On the cannot we what would be adequate security. an The factors be considered present age child, would be present future needs education and maintenance he until maturity, reaches possibility and the those needs parties agree If increase. cannot as to amount, the Chancellor should fix an amount that will insure for the child but eliminate the element alimony.
Decree reversed and case remanded for *8 passage
the in decree accordance expressed with the views in this opinion, paid by ap- costs be the pellant.
Hammond, J., following delivered the concurring opin- ion, Sobeloff, J., in which C. concurred.
I concurred in case, result in the this not I thought right it or desirable but rather it in- was by respect a decent dicated the rule stare decisis compelled by obedience to the principle of res judicata. essentially facts, On prior the same in appeal parties reported between the same 199 Md. Maryland
A. 2d this Court held that could not
compel any pay the husband necessaries reasons, (1) or support, wife to her for the contribute couple, (2) the the Court had divorced the Florida alimony only compelled Ecclesiastical Courts where wife, technically although couple were still husband and though Mary- (3) legally separated, and even statute “alimony” where an divorce land has authorized absolute may granted, compel to pay is the man the woman and so for an or later increased amount named years after he ceased be indefinite number has only begun husband, in the can done if her this be decree; if, this, lieu of divorce or there substituted jurisdiction” magic (if words “the Court retains begin support appear, the man have to words these twenty years payments he has ceased be a hus- after otherwise, support payments band) ; would because, “alimony” to the Ecclesiastical Courts as known strangers sought, man and woman are when eye of the law. Maryland awarded Johnson a A Court had Mrs. deposit in a mensa and secured divorce property When Court of of Mr. Johnson. this unquestioned jurisdiction Maryland passed, had husband, property. It has wife, and the still property. Yet of the wife and support for off the wife because appeal cuts Court marriage, and the dissolved the Florida has with that dies dis- to continue result, reásoning, is the same solution; under that by death, Mary- marriage by a how the matter no ends — divorce, in another Johnson a divorce State. land v, supra. Johnson, penalize the Courts refused
In some States illogical theory. to an blind adherence their citizens if another jurisdictions, the' Courts hold that these parte divorce, obligation' granted an ex State recognized by been wife which has support for the will hot be affected. The divorce State the home *9 is valid as á dissolution of the in that is divisible
557 unavailing marital bonds but to relieve husband of duty 308, support. Estin, Estin Y. v. 296 N. 73 2d N. E. aff'd. U. S. Ct. S. appears foreign
L. Ed. 1561. If the wife in the divorce jurisdiction action, the of the Courts the home State foreign having superseded. Court, is This is because the parties, power to rule on both judicata matter and its decree is res given must be full faith home and credit State. Lynn Lynn, 748, 753, v. 302 N. Y. 97 N. E. 2d A. L. R. 2d appeared 1335. Since Mrs. Johnson in the case, Florida it would at seem first blush as if she would passed there,
be bound the decree and even in a jurisdiction, ground just divisible divorce would have no However, further relief her home State. Court, decree, provided expressly Florida in its amended nothing therein should be held to relieve the husband complying Maryland from with pay decree for the support. judicata ment of Thus rule of res would if relieve the husband here awere divisible jurisdiction. Lynn Lynn, supra, divorce In the New Appeals distinguished York Court of a case where a granted foreign parte divorce is ex from one where appears, saying express wife first that an denial of, of, conclusive, or an award would be adding: long then “As as the Court in the divorce action personal parties, decree, had of both its as subsequently modified, rendered must taken obligation support, determine the husband’s and the grant alimony properly equiva is treated failure lent follows, then, denial such . It . relief.. alimony provisions prior judgment separation of a yield overriding to the effect
must of the divorce decree.” (Emphasis mine). negatived Here Florida Court that its failure to equiva idea award was the Florida, lent of a denial. an unsuccessful defendant generally except wife entitled to where she guilty adultery, which is not the case here. Cer tainly, expected Florida intended that the
558 I think Maryland payments continue. support would they should, Maryland Courts should and that power require them. Staub, reasoning holding of Staub
Under ignored if Johnson had 183 A. Mrs. Md. proceedings the divorce had the Florida divorce jurisdic- granted Maryland no parte, would have been ex Nevada, days alimony. give of these tion to or continue States, Florida, Arkansas, prolific divorce other predicament. puts separated in real She this wife dilemma, having the alternative of a is on the horns Court, foreign submitting of to the of a defendant, a dis- is under an out-of-state she where as foreign alimony, ignoring seeking advantage or of in by losing alimony granted proceeding and divorce practices entirely. the mores and her home Court Under hardly put times, for its it fair of the narrow, lady because of a predicament in citizens judicial interpreta- concept and artificial and unrealistic alimony. tion of say narrow, unrealistic this reason.
I artificial and law, and is of unknown under the common Divorce was Maryland. with statutory Limited divorces in creation England by alimony granted in Ecclesiastical were granted Legislature divorces at first Here the Courts. Chancery assumed ali- but Courts mony. By of the now Section of Article 16 what is equity expressly Code, were passed in Courts jurisdiction. “The alimony provided: The Act given equity shall and hear and of this State Courts alimony, ample full and all as determine causes heard and causes could be determined manner as such England ecclesiastical Courts there.” the laws Alimony sup- to the Ecclesiastical as known Courts granted was a divorce mensa: In port where there 1841, by Section of Article 16 of the what is now Legislature provided Code, all cases where alimony may granted, were awarded. There divorces alimony'in Statutes, and, definition since is no exercising jurisdiction granted the Act of Act, Courts have modelled the award- ed in image divorces a vinculo in as had been known to the Ecclesiastical im- Courts. It is mediately apparent judicial concept illogical authorized the Act of 1841 was because under law, ecclesiastical long they
wife living husband as are both *11 and are married to each other. The limited divorce granted by nothing the Ecclesiastical Courts was more legally separation destroy than a authorized did therefore, wife; the status husband it was en- tirely logical required consistent and the husband be though they support living apart. to the wife even were status, divorce Since the a vinculo severs the matrimonial alimony rationally in the traditional sense cannot be compelled after an absolute divorce. alimony reality, permitted
In the 15 of Section legislative permission 16 a Article Code is require pay husband to support Court former Indeed, holdings wife. under of this former 1033, Emerson, 584, Court —Emerson v. 120 Md. 87 A. Johnson, supra recognized support Johnson v. —the required paid, may which the Court has to be be increased decreased, long or otherwise or controlled after the mar- ended, riage merely jurisdic- because the Court has granted. present at time the divorce was In tion case, jurisdiction alimony the Court had at the time the Johnson, just logical was to Mrs. awarded and it is say here that it does not lose that it say grants tois that a which an absolute jurisdiction may, years divorce and reserves after couple wife, double, have ceased to be husband and triple, alimony originally granted. the amount What saying magic I am is that there is no in the word “ali- mony” originally decisions which construed Sec- might tion 15 of 16 Article well have held that Courts had to award to a former justice any it felt that the interests wife at time required parties it. in an support awarded The show that decisions and show divorce is not historical absolute attempts incongruous have flowed from the results which Emerson, it In Emerson v. with it as if were. to work supra, 15 of 16 was it that Section was decided Article provide for “of the same character intended long had so as the Courts and limitations provision for with”; specifically, dealt income, property. It was not a division from that, “jurisdiction exists in the Courts further modify part providing the decree Equity grants divorce alimony whether vinculo or a mensa” Clarke, A. de Md.
In Clarke ex of divorce a mensa which was that a decree cision alimony, no the wife should receive pressly provided that enrollment, respect in this even after modified reason altered circumstances. Marshall, 162 Md. 159 A. Marshall v. *12 unless a vinculo an L. R. Court said A. alimony, jurisdiction, or reserves either awards decree en- powerless, the decree become is after has the Court n alimony. decision, rolled, this if the Under to award year, any alimony cent a it could of one at awarded Court time, require years perhaps, if his later the husband it, pay dollars circumstances warranted ten thousand year. Also, adding re- four words —“The Court given jurisdiction” alimony for first could be tains — twenty years after the decree. time Clearly, Legislature if what authorized were .other wife, for former no increase or com- than “alimony” given years could after a mencement merely couple man and wife ceased to be because at divorce, some amount was awarded four of the or time to a decree. words were added Tome, 180 Md. A. 2d Tome v. although may, in divorce, a Court an absolute wife, fee pay the counsel compel the husband any time increase alimony, at and well as in to a counsel fee yet not alimony, entitled the wife increased, alimony attempt her successful longer a wife. she is no because cases results of the in the distinctions
The unfortunate concept of restricted produced been which have divorce, are alimony is an absolute where there judicial for the reasons likely decision to be cured appeal. It in to concur prompted me which change made they is to be best, perhaps, not. If a if are law, appropriate it would seem established integrity Legislature it. make The soundness judicial process preserved. are thus popular both recent evidence There been sup- legal thinking, between technical distinctions being that a port are eliminated. So imprison pay support, well as for could failure people Maryland, alimony, Legislature and the 3 of 38 of Article the Constitu- amended Section provide “. . a decree of court of tion to valid that: . agreement approved by competent or dependent support of or chil- of said court for the a wife dren, alimony, shall not constitute a debt. . certainly This is evidence from a fundamental source that are, substance, identical. See Reciprocal Support also the Uniform Enforcement of Code, Mary- passed Act—Article first 89C Legislature land in 1950. Legislature
If the amended the law so that a Court power require support would have the of a former any justice wife at time that interests and the required it, regardless parties of whether the divorce provided juris- decree had or had retained *13 diction, flexibility it would parties add where both are Maryland residents, where, case, the instant property Mary- wife and the the husband are in The result which land. could have been achieved and urged present case, I would which if the change proposed law, had been would be far more just fair than the which to come result had under present state of thé law. Judge say Chief me to authorized Sobeloff opinion. he concurs in this
DOMESKI v. ATLANTIC COMPANY REFINING Term,
[No. October 1952.]