Keerl v. Keerl, 34 Md. 21

Keerl v. Keerl

34 Md. 21 | Md. | 1871

Grasox, J.,

delivered the opinion of the Court.

The first question presented upon this appeal is, whether the Courts of Equity of this State have jurisdiction to decree alimony, if both husband and wife reside beyond the limits of the State. The Act of 1777, ch. 12, incorporated into the Code, Article 16, section 14, provides that “Courts of Equity of this State shall and may hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the Ecclesiastical Courts there.” The Ecclesiastical Courts of England only decreed alimony as an incident to divorce, and in such cases as would entitle the wife to a 'divorce a mensa et thoro: Alimony is defined to be “a maintenance afforded to the wife where her husband refuses to give it; or where from his improper conduct she is compelled to separate from him.” 2 Bishop on Mar. and Div., sec. 351, note 1; Wallingsford vs. Wallingsford, 6 H. & J., 488. It is an incident of the mar*26riage and is a right entirely depending upon the status of the parties, and each State has the right to determine the status and condition of those who are domiciled within its limits. The Courts of this State have therefore no jurisdiction to pass upon and determine the relative duties of a husband and wife, both of whom are residents of another State; and the Legislature never intended to confer such power by the passage of the Act of 1777, nor by the adoption of the Code. To give jurisdiction to our Courts, in such cases, one or other of the parties must be domiciled within the State. It was contended that the Court below had jurisdiction in this case because the. husband, Henry Keerl, had property within its jurisdiction. To adopt sucht a doctrine would result in great confusion, vexation, and, perhaps, injustice, for the wife might then institute a proceeding for alimony in every State where her husband might have property, and have it decreed to her in each State, and that too, as was very forcibly §aid by the learned Judge who decided this case below, when “the Court within whose jurisdiction the parties are domiciled, may, perhaps, have decreed a restitution of conjugal rights.” There is no controversy as to the residence of Henry Keerl, all the proof showing that he had resided in Philadelphia for some years before, and at the time this suit was instituted; and from the proof in the record we are of opinion that the appellant was not domiciled in this State at the time she instituted the proceedings in this case. She had been living in Philadelphia for years, engaged in her profession of music teacher, sometimes leaving that city for short periods to give lessons, but invariably returning there so soon as her professional engagements.were at an end. In February, 1867, her brother went to that city for her, and brought her to Baltimore with him, with the intention of procuring her a situation as music teacher at the Patapsco Instituté. She did enter upon an engagement there, but soon gave it up and returned to Philadelphia, some of the witnesses say in four or five days after she had left it, and others say in two, three or four weeks *27after. We think that the proof establishes the fact that she had no intention whatever of making her permanent home in Baltimore, or of changing her place of domicil, but that she left Philadelphia with the intention of returning there if she failed to make an arrangement with Mr. Archer to give lessons at his school, and at all events, so soon, if she did make an engagement there, as that engagement should terminate. It is true that it has been held by this Court that a temporary residence in this State was sufficient to constitute one a citizen for the purpose of suing or being sued; but this doctrine was applied to a residence for commercial purposes only, Field vs. Adreon, 7 Md., 209, and never was extended to a case like the one now before us.

(Decided 10th February, 1871.)

We find no error in the order of the Court below dismissing the bill of complaint, and it must be affirmed.

Order affirmed.