66 A. 16 | Md. | 1907
The bill in this case was filed by the appellee against the appellant for divorce a mensa et thoro, the only ground alleged being adultery. The bill after alleging that the defendant had been guilty of the crime of adultery with a woman specifically named, and others unknown to the plaintiff, within six months preceding the filing of the bill further alleged that the defendant is possessed of certain leasehold property on Druid Hill avenue in Baltimore City, and that he conducted a restaurant and saloon on Lee street, in Baltimore, which business yielded him over one hundred dollars a week, that she had not lived or cohabited with the defendant since Sept. 7th, 1906, when she discovered his adulteries, though she is destitute of means of support, or of prosecuting her suit for divorce; and that the defendant had informed her "that he intended to dispose of his dwelling and business place, and that she believes he will do so to the great injury of your oratrix in the premises, and that only by the writ of injunction can your oratrix's marital rights be fully protected until the final determination of this suit."
The prayer of the bill was for alimony, both pendente lite, and permanent, and for a reasonable sum of money for employment of counsel and expenses of her suit; also for an injunction restraining the defendant "from disposing of or assigning said leasehold property or his place of business, or the contentsthereof, until the final disposition of the suit." An injunction was issued immediately upon the filing of the bill, in the precise language of the prayer therefor. In a few days thereafter, the defendant filed an answer denying that he had been guilty of any act of adultery, and alleging that the plaintiff abandoned him on Sept. 7th, 1906; that they had res ded on Druid Hill avenue, though he conducted his business on Lee street, and that about the date last mentioned, he proposed for reasons of economy to rent out his dwelling and remove to the building in which he conducted his saloon and restaurant, and to gain the plaintiff's consent, offered to give her the rent of the dwelling about $25.00 a month and allow *299 her all the profit she could make by managing the restaurant, but that she declined to live with him at his place of business. He alleged that he purchased the leasehold property mentioned for $1500, paying $300 of his own money and giving a building association mortgage for $1200 on which he paid $7.97 weekly; that he had only been in business on Lee street about four months and that the expenses were equal to the receipts, and that he had no other property, but that the plaintiff had furniture worth $400 or $500. He also denied the allegations of that paragraph of the bill in which plaintiff stated he had informed her he intended to dispose of his dwelling and place of business, and that she believed he would do so to her injury, and further denied that she was entitled to a divorce a mensa et thoro or to any relief whatever under the allegations of her bill, because she does not charge either cruelty of treatment, excessively vicious conduct, or abandonment and desertion, these being the only three causes for which a divorce a mensa et thoro may be decreed as he alleges, under sec. 37 of Art. 16, which is the only statute in this State relating to divorces a mensa etthoro, and the bill praying specifically for such decree.
On the same day this answer was filed, the defendant moved for the dissolution of the injunction. Upon the filing of the bill on Sept. 8th, 1906, an order was passed the same day requiring the defendant to pay the plaintiff $25 as counsel fee for her solicitor, and $7.50 per week as alimony pendente lite, unless cause to the contrary was shown on or before Sept. 25th, 1906, provided a copy of that order was served on defendant on or before Sept. 13th, 1906, and service was made Sept. 8th, 1906. On Oct. 12th, 1906 the motion to dissolve was refused, and the order of Court as to alimony and counsel fee was made absolute, and appeal was entered from that order same day. There is nothing in the record to show whether any testimony was taken nor does it appear whether any argument or hearing was had at or before the passage of the order appealed from. The principal question in the case, and the one which goes to its root, is whether the Court has *300 power to decree a divorce a mensa et thoro, when that is the specific decree sought, and the only ground alleged is adultery.
Prior to the Act of 1841, chapter 262, all divorces emanated from the Legislature. By that Act, jurisdiction "of all applications for divorce" was given to the Chancellor or to the County Courts of the State, and section 21 of Art. 3 of the Constitution of 1851 forbid the granting of any divorce by the General Assembly, and this has ever since continued to be the fundamental law in this State. The transfer of jurisdiction from the General Assembly to the Courts thus became exclusive, but full discretion was not conferred upon the Courts. From a period before the Revolution, however, the Court of Chancery in this State had full jurisdiction in cases of alimony though no divorce had been decreed or was asked for, and though the case made by the bill and proof, would not, according to the Ecclesiastical Courts in England, entitle her to a divorce a mensa et thoro.Hewitt v. Hewitt, 1 Bland 93; Jamison v. Jamison, 4 Md. Ch. 217. In 2 Nelson on Divorce and Separation, p. 979, the author says, "The power to grant a decree from bed and board must be conferred by a statute stating the causes for which it may begranted. If the power is not so conferred the Court will not grant a separation for the common law causes of divorce."
In 14 Cyc., p. 711, it is said: "In some jurisdictions either kind of divorce may be granted in the discretion of the Court." We have examined the cases referred to in this passage, and find that they all rest upon construction of the statute. Thus inCollier v. Collier,
Apart from the technical rules of construction generally which lead to this conclusion and the apparent absence of authority to sustain the contention of the appellee, an examination of our own statute seems to strengthen this conclusion.
Sec. 36 of Art. 16, relates exclusively to the granting of decrees for divorce a vinculo, and enumerates the grounds upon which the statutory jurisdiction conferred may be exercised, but intimates no authority to grant such decree for any cause not enumerated in that section.
Sec. 37 of Art. 16, relates exclusively to the granting of decrees a mensa et thoro and enumerates the grounds upon which that jurisdiction (which is also purely statutory) may be exercised, none of which causes would warrant a decree of divorcea vinculo; but it then proceeds to provide that "the Court may decree a divorce a mensa et thoro in cases where a divorce avinculo is prayed, if the causes proved be sufficient to entitle the party to the same," that is to say if the causes or some of them, proved though not necessarily alleged are such as warrant a decree a mensa et thoro, though the causes alleged as ground for a decree a vinculo, may not be established by proof. A reference to the Act of 1841, ch. 262, shows that as originally enacted, the clause last quoted above, was followed by the words "under the provisions of this Act," these words being omitted when that Act was originally codified. This provision only dispenses with formal allegation in a bill for a decree, avinculo, of ground for a divorce that would warrant a decree amensa et thoro, but permits the offer of proof of the latter ground, upon failure of proof of the former, and bases the decree upon the actual proof, thus confining the exercise of jurisdiction to the special statutory ground named in the statute. *302
In Schwab v. Schwab,
In Barclay v. Barclay,
But the appellee contended that if the bill did not contain such allegations as warranted the decree sought, the proper remedy was to demur to the bill, citing in support of this contention Miller v. Balto. County Marble Co.,
It is settled law in this State that a husband may alienate his property at will, even though in the exercise of this right he strips himself of all means of supporting or maintaining his wife, provided he does so bona fide and with no design of defrauding her of her just claims upon him and his estate.Ricketts v. Ricketts, 4 Gill, 105; Feigley v. Feigley,
In Rose v. Rose, 11 Paige, 167, an injunction which prohibited the husband not only from parting with his property, but from carrying on his ordinary business, was declared too broad, and properly, as we think. This objection is especially apparent in this case, since the order which continued the injunction also made absolute the order for weekly alimony of $7.50, and the only evidence in the case of his ability to pay that sum is the alleged weekly profits from carrying on his ordinary *304 business. It follows from what we have said that the order appealed from must be reversed and the injunction be dissolved, but as the plaintiff would have a right to proceed for permanent alimony, without asking for any decree of divorce, and may desire to apply for leave to amend her bill accordingly, the case will be remanded to enable her to do so if she desires.
Decree reversed, injunction dissolved, and cause remanded forsuch further proceeding as may be in conformity with thisopinion. Costs to be paid by appellant.