149 A. 468 | Md. | 1930
The question for determination on this appeal presents little difficulty, because in our opinion the recent case of Dickey v.Dickey,
On September 18th, 1929, the husband filed his petition setting forth the passage of the former decree, and alleging that since its passage his former wife had remarried, that the petitioner is willing to suport his child, but feels that it is an injustice to require him to continue to contribute anything towards the support of his wife, and alleging his willingness to pay $50 per month for the support of the child, but praying the court to pass an order modifying the decree so that the petitioner will be required to support his said minor child only. The answer of the complainant in the original divorce proceeding admits the passage of the decree as set out in the petition, but alleges that the $100 per month, payable to her under its terms, was awarded by the court under and by virtue of the terms of the agreement of April 3rd, 1926, heretofore mentioned. She admits her remarriage. The chancellor passed an order or decree denying the relief prayed and dismissing the petition. The appeal is from that action.
The correct decision of the question involved depends upon whether the original decree in the divorce proceeding was a decree for alimony, or was an incorporation of the agreement between the parties. If its terms adopted by the chancellor were an award of alimony, as that is defined in the *675
settled law of the state, the remarriage of the wife would extinguish the obligation of the husband to make payment subsequent to the remarriage. Wallingsford v. Wallingsford, 6 H. J. 485; Dickey v. Dickey, supra, and cases therein cited. If, however, the terms of the decree took the award out of the category of alimony and were an incorporation of the agreement of the parties, the remarriage of the wife would have no effect upon the liability of the husband to make payments in accordance with its terms; or, as stated by Judge Parke in Dickey v. Dickey, if the allowance to the wife in the decree is the result of a previous agreement between the spouses and does not fall within the accepted definition of alimony, so that it would have been impossible for the chancellor to have allowed permanent alimony as the decree provides, then, notwithstanding the parties and even the court called it alimony, the allowance for the wife in the decree was not alimony, and a court of equity has no power to modify the decree as in the case of an award of alimony. Alimony is a provision by the husband for the wife's support that continues only during their joint lives, or so long as they live separate and apart, or until the wife remarries. Emerson v.Emerson,
Decree affirmed, with costs to the appellee. *677