Johnson v. Johnson
Johnson v. Johnson
Opinion of the Court
delivered the opinion of the Court.
This appeal is from a decree of December 23, 1952 dismissing a petition filed by the appellant to obtain a release of his stock in Johnson Motor Lines, Inc. held by the Clerk of Court, under court order, to secure payment of alimony of $100 a week to his former wife and $25 a week to support his infant son. The alimony and support were awarded in a decree of the Circuit Court No. 2 of Baltimore City granting her a divorce a mensa on the ground of desertion on November 15, 1948. By this decree Johnson, nonresident, was also enjoined, subject to further order of court, from disposing of his
Meanwhile, on January 18, 1950, Johnson obtained a decree of divorce a vinculo from his wife on the ground of cruelty by a decree of the Circuit Court for Dade County, Florida. Mrs. Johnson did not ask for alimony, but on February 21,1950 the court passed a supplemental decree declaring that “nothing in this decree shall be held or construed to relieve the plaintiff in any manner from complying with the support and maintenance provisions of that certain decree rendered by the Circuit Court No. 2 of Baltimore City, State of Maryland, on the 15th day of November, 1948 * * On November 17, 1950, Johnson petitioned the Maryland court to have its decree amended to eliminate the alimony award, in view of the Florida divorce, but his petition was dismissed voluntarily at or about the time of the passage of the consent decree of January 5, 1951.
On May 14, 1951 Mrs. Johnson filed in the lower court an “amended petition for support and maintenance” reciting that the decree of the Circuit Court for Dade County, dated January 18, 1950 had been appealed by her to the Supreme Court of Florida on the ground that the issues, had been decided in the previous Maryland proceeding and were res judicata,. That court affirmed without opinion. She asked the Maryland court to increase its maintenance award to provide funds to perfect a petition for certiorari to the Supreme Court of the United States from the Florida decree. (It may be
On July 30, 1951, the Circuit Court No. 2 of Baltimore City passed a decree that its decree of November 15, 1948 “be modified to increase the maintenance provision” and that Johnson pay $2,058.70 “the costs and expenses incurred and estimated costs to be deposited with the Clerk of the Supreme Court of the United States, in order to perfect * * * plaintiff’s petition [for] certiorari ” On appeal to this court the decree was reverse'd. Johnson v. Johnson, 199 Md. 329, 86 A. 2d 520.
It was pointed out in the opinion cited that the husband’s domicile in Florida was never questioned and the wife appeared and actively contested the case. The question of “divisible divorce”, discussed in Estin v. Estin, 334 U. S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561, and foreshadowed in Esenwein v. Commonwealth, 325 U. S. 279, 65 S. Ct. 1118, 89 L. Ed. 1608, is not presented. In Lynn v. Lynn, 302 N. Y. 193, 97 N. E. 2d 748, it was held by the New York Court of Appeals that a divorce decree in Nevada, following a personal appearance, even where the court failed to grant alimony or the wife to seek it, nullified the alimony provisions of a prior judgment of separation obtained by her in New York. It was recognized that the question was one of New York law. In Rodda v. Rodda, 185 Or. 140, 200 P. 2d 616, 202 P. 2d 638, it was held that even without a personal appearance an absolute divorce obtained by publication had the same effect under Oregon law, although under the Estin case Oregon was not required to give it that effect by the full faith and credit clause of the federal constitution.
In the former appeal we discussed this question and also the validity and effect of the supplemental decree of the Florida court, and said: “If the Maryland court actually possesses any of the jurisdiction which seems to be reserved to it in the Florida decree, obviously neither the Florida decree nor the full faith and credit clause
Although the case might, perhaps, have been decided on a narrower ground, our decision was rested squarely on the proposition that the alimony provision could not, under Maryland law, survive.the dissolution of the marriage by the Florida court. The dissolution was not conditional upon the validity or effectiveness of the supplemental decree. That decree was obviously based on the erroneous assumption that the obligation to pay-alimony in Maryland would survive a dissolution of the marriage in Florida. Under the laws of some states the obligation would survive, but we have held otherwise. Johnson v.. Johnson, supra; Staub v. Staub, supra. On that question the Maryland law must control, despite the declaration of the Florida court disavowing any intention to relieve the plaintiff from his obligations under the Maryland decree. It may be noted that the supplemental decree did not purport to impose an obligation to pay alimony in Florida, where it was not asked for.
Nor do we find any merit in the appellee’s contention that jurisdiction could only be challenged by petition to modify the original Maryland decree, and not by petition to modify the order as to security. The petition alleged a lack of jurisdiction to enforce the award. It is generally held that a final decree, without more, terminates an award, although it has been also held that installments accruing down to the time of the filing of a petition are collectable. See note 1 A. L. R. 2d 1423, 1436. No such question is presented in the instant case as payments are not in arrears. The right to retain security could not survive the termination of the alimony award. “When, therefore, the jurisdiction to pass a decree is ended, no jurisdiction can survive as to matters purely ancillary to that object.” McCurley v. McCurley, 60 Md. 185, 189. Johnson v. Johnson, supra, 199 Md. 329, 339, 86 A. 2d 520, 524.
The appellee contends that even if the award terminated upon the passage of the Florida decree, which was not stayed by the Supreme Court of Florida or the Supreme Court of the United States, the award of alimony passed on November 15, 1948 was converted into a contractual obligation by the consent decree and stipulation as to substituted security filed January 5, 1951, after the. Florida decree. It is pointed out that that order was made “subject to such further order of this Court as may from time to time be required in accordance with the original Decree of November 15, 3948, and any petitions of either party that may have been or shall be hereafter filed herein.” We do not construe this clause as an agreement, either as to the amount of the award or the type or amount of security, which matters were, in this order and in the previous
The chancellor in his opinion filed in the instant case stated, “The only question here presented is as- to the security which is now deposited in the hands of the Clerk, and as to that, it is conceded that there is still an obligation for the support of the child, which is one of the provisions of the decree, and, consequently, since there is that obligation, this court would still be justified, in view of the history of the case, in requiring security for the performance of that obligation, and since the security was selected by agreement of the parties, and was deposited as a result of an agreement and stipulation signed between them, it is like a consent decree which the court ought not to disturb in the absence of fraud or imposition, or some violent overreaching on the part of one of the parties which is wholly unjustified by the circumstances. And in view of the fact that the obligation for the support of the child, as conceded by both sides, still exists, the court feels that the petition for the discharge of the security in the hands of the Clerk ought to be denied.”
As we have indicated, we think the argument as to a contractual obligation to pay the amount fixed by the award in lieu of alimony cannot be sustained, and the petitioner is not barred by the consent decree and stipulation from challenging the court’s jurisdiction to enforce it. Nor did the stipulation foreclose a petition for further substitution or modification in amount. It is conceded
Decree reversed and case remanded for the passage of a decree in accordance with the views expressed in this opinion, costs to be paid by the appellant.
Concurring Opinion
delivered the following concurring opinion, in which Sobeloff, C. J., concurred.
I concurred in the result in this case, not that I thought it right or desirable but rather that it was indicated by a decent respect for the rule of stare decisis and compelled by obedience to the principle of res judicata. On essentially the same facts, in a prior appeal between the same parties reported in 199 Md. 329, 86 A. 2d 520, this Court held that Maryland could not
A Maryland Court had awarded Mrs. Johnson a divorce a mensa and alimony secured by the deposit in Court of property of Mr. Johnson. When this decree was passed, Maryland had unquestioned jurisdiction of the wife, the husband, and the property. It still has jurisdiction of the wife and the property. Yet the Court in this appeal cuts off support for the wife because Florida has dissolved the marriage, and the jurisdiction of Maryland to continue that support dies with that dissolution; the result, under that reásoning, is the same no matter how the marriage ends — by death, by a Maryland divorce, or by a divorce in another State. Johnson v, Johnson, supra.
In some States the Courts have refused to penalize their citizens by blind adherence to an illogical theory. In these jurisdictions, the' Courts hold that if another State has granted an ex parte divorce, the obligation' of support for the wife which has been recognized by the Court of the home State will hot be affected. The divorce is divisible in that it is valid as á dissolution of the
Under the reasoning and holding of Staub v. Staub, 170 Md. 202, 183 A. 605, if Mrs. Johnson had ignored the Florida divorce proceedings and the divorce had been granted ex parte, Maryland would have no jurisdiction to give or continue alimony. In these days of Nevada, Florida, Arkansas, and other prolific divorce States, this puts a separated wife in a real predicament. She is on the horns of a dilemma, having the alternative of submitting to the jurisdiction of a foreign Court, where as an out-of-state defendant, she is under a disadvantage in seeking alimony, or of ignoring the foreign divorce proceeding and losing the alimony granted by her home Court entirely. Under the mores and practices of the times, it is hardly fair for Maryland to put its lady citizens in this predicament because of a narrow, artificial and unrealistic concept and judicial interpretation of alimony.
I say narrow, artificial and unrealistic for this reason. Divorce was unknown under the common law, and is of statutory creation in Maryland. Limited divorces with alimony were granted in England by the Ecclesiastical Courts. Here the Legislature at first granted divorces but the Courts of Chancery assumed jurisdiction of alimony. By what is now Section 14 of Article 16 of the Code, passed in 1777, Courts of equity were expressly given alimony jurisdiction. The Act provided: “The 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.” Alimony as known to the Ecclesiastical Courts was support granted where there was a divorce a mensa: In 1841, by what is now Section 15 of Article 16 of the Code, the Legislature provided that in all cases where divorces were granted, alimony may be awarded. There is no definition of alimony'in the Statutes, and, since
In reality, the alimony permitted by Section 15 of Article 16 of the Code is a legislative permission for the Court to require a former husband to pay support to his former wife. Indeed, under the holdings of this Court — Emerson v. Emerson, 120 Md. 584, 87 A. 1033, recognized by Johnson v. Johnson, supra — the support which the Court has required to be paid, may be increased or decreased, or otherwise controlled long after the marriage has ended, merely because the Court has jurisdiction at the time the divorce was granted. In the present case, the Court had jurisdiction at the time the alimony was awarded to Mrs. Johnson, and it is just as logical to say here that it does not lose that jurisdiction as it is to say that a Maryland Court which grants an absolute divorce and reserves jurisdiction may, years after the couple have ceased to be husband and wife, double, or triple, the amount of alimony originally granted. What I am saying is that there is no magic in the word “alimony” and the decisions which originally construed Section 15 of Article 16 might well have held that the Courts had jurisdiction to award support to a former
The decisions show that the support awarded in an absolute divorce is not historical alimony and show the incongruous results which have flowed from the attempts to work with it as if it were. In Emerson v. Emerson, supra, it was decided that Section 15 of Article 16 was intended to provide for alimony “of the same character and limitations as the alimony the Courts had so long dealt with”; specifically, that it was a provision for support from income, not a division of property. It was held further that, “jurisdiction exists in the Courts of Equity to modify that part of the decree providing for alimony whether the decree grants divorce a vinculo or a mensa”
In Clarke v. Clarke, 149 Md. 590, 131 A. 821, the decision was that a decree of divorce a mensa which expressly provided that the wife should receive no alimony, may be modified in this respect even after enrollment, by reason of altered circumstances.
In Marshall v. Marshall, 162 Md. 116, 159 A. 260, 83 A. L. R. 1237, the Court said that unless an a vinculo decree either awards alimony, or reserves jurisdiction, the Court is powerless, after the decree has become enrolled, to award alimony. Under ■ this decision, if the Court awarded alimony of one cent a year, it could at any time, years later perhaps, require the husband if his circumstances warranted it, to pay ten thousand dollars a year. Also, by adding four words — “The Court retains jurisdiction” — alimony could be given for the first time twenty years after the decree.
Clearly, if what the Legislature authorized were .other than support for a former wife, no increase or commencement of “alimony” could be given years after a couple ceased to be man and wife merely because at the time of the divorce, some amount was awarded or four words were added to a decree.
In Tome v. Tome, 180 Md. 31, 22 A. 2d 549, it was held that although a Court may, in an absolute divorce,
The unfortunate distinctions in the results of the cases which have been produced by the restricted concept of alimony where there is an absolute divorce, are not likely to be cured by judicial decision for the reasons which prompted me to concur in this appeal. It is best, perhaps, if they are not. If a change is to be made in the established law, it would seem appropriate that the Legislature make it. The soundness and integrity of the judicial process are thus preserved.
There has been recent evidence that in both popular and legal thinking, technical distinctions between support and alimony are being eliminated. So that a Court could imprison for failure to pay support, as well as alimony, the Legislature and the people of Maryland, in 1950, amended Section 38 of Article 3 of the Constitution to provide that: “. . . a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children, or for alimony, shall not constitute a debt. . This is certainly evidence from a fundamental source that support and alimony are, in substance, identical. See also the Uniform Reciprocal Enforcement of Support Act — Article 89C of the Code, first passed by the Maryland Legislature in 1950.
If the Legislature amended the law so that a Court would have the power to require support of a former wife at any time that the interests of justice and the parties required it, regardless of whether the divorce decree had provided for alimony or had retained jurisdiction, it would add flexibility where both parties are Maryland residents, or where, as in the instant case, the wife and the property of the husband are in Maryland. The result which could have been achieved and which I would have urged in the present case, if the
Chief Judge Sobeloff has authorized me to say that he concurs in this opinion.
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