Maryland Marriage Adulterous Relation Divorce Mensa-et-thoro Lawyers Attorneys

MARK WALLACE v

MARK WALLACE v. ELLEN WALLACE

Court of Special Appeals of Maryland

July 11, 1980

The parties were married in New York City in 1967. They moved to Maryland. Two children were born of the marriage, in 1971 and 1974. In March 1976, without appellee's (wife) consent, appellant husband left the marital home. In late April or early May he began an adulterous relationship with his present wife. Also in May 1976, appellee committed adultery with one Norman Fox. Itis clear however that there was no evidence of adultery by either party prior to their separation. On March 21, 1977, appellee filed suit in the Circuit Court for Montgomery County to obtain a divorce a mensa et thoro, custody of her children, child support and alimony. The court entered an Order on September 22, 1977, granting appellee $ 550 per month alimony, custody and $ 150 child support per month per child, pendente lite. After appellee filed her suit, appellant moved to Virginia, established residence and, on April 5, 1978, obtained a Decree of Divorce a vinculo matrimonii from the Circuit Court for Alexandria. The divorce was granted. Soon thereafter, upon advice of counsel, appellant ceased making payments of alimony pendente lite, and continued to pay for child support only. In June 1978 appellee filed an amended Bill of Complaint seeking, inter alia, pendente lite and permanent alimony, counsel fees and suit money, a determination of property rights and an award of arrearages in unpaid alimony pendente lite. The trial court found in favor of the appellee awarded her permanent alimony and a judgment of alimony in arrears, including attorney fees and court costs. Appellant husband challenged the judgment by the Circuit Court for Montgomery County.

Issues:

Did the chancellor err in awarding alimony to an adulterous spouse?

Did the chancellor improperly fix the amount of alimony payable to appellee?

Did the chancellor err in awarding counsel fees and costs to appellee, and in awarding her a judgment against him for arrearages in pendente lite alimony?

1) Did the chancellor err in awarding alimony to an adulterous spouse?

The Court states that "What is an appropriate award of alimony is governed by the principles of equity regardless of the grounds for divorce. Its resolution has always been one of weighing countervailing interests. While the parties' economic circumstances are certainly of great importance, any of their conduct which contributed to the destruction of the marriage is also relevant to a determination of what is just. As each factual situation is unique, it is obvious that the chancellor must be entrusted with wide discretion in awarding alimony. This would include those cases in which he is required to consider the culpability of the parties by taking into account the circumstances leading up to that point in time when the couple, who have been joined in marriage to become one, separate and become two once more, as well as the fault which destroyed the home. However, in those suits in which the actions of the party seeking such a pecuniaryaward constitute the sole cause for the demise of the marriage, and this wrongdoing consists of acts which are either adultery or abandonment, then, except in rare instances where there exist extremely extenuating circumstances, the award of any alimony would be an abuse of discretion. We have designated adultery and abandonment not on a whim, but because these are the only direct culpatory deeds that the Legislature has selected by name which either authorize or can ripen into grounds for an a vinculo divorce thereby indicating that it considers them the more heinous of the acts which can terminate a marriage. But, if there exists separation causing culpability other than adultery or abandonment on one side, or fault on both sides which caused the separation of the parties, the chancellor should consider the parties' degree of blame as well as their relative guilt in those cases where applicable and, in conjunction with the factors quoted earlier in this opinion, decide upon the proper award."

Under these circumstances, the fault/no fault distinction is crucial. Appellant's receipt of a divorce a vinculo matrimonii in this case, on nonculpable grounds, was a decree as much in appellee's favor as appellant's. At the time it was entered, appellee was equally entitled to receive one upon her own initiative. So, in this case since appellee's adultery did not in fact foreclose her right to obtain an a vinculo divorce, it did not foreclose her right to obtain alimony either. In this case, appellee's acts of adultery, committed after the parties' separation but prior to the grant of an absolute divorce, did not foreclose her right to receive alimony. The parties were in fact divorced upon a "no fault" ground. When the divorce was entered, both were equally entitled to receive it, and it was as much in appellee's favor as appellant. Appellee's adultery did not automatically bar her right to receive alimony.

2) Did the chancellor improperly fix the amount of alimony payable to appellee?

The Court states that in determining an award of alimony and whether, under the statute, the wife's income 'is insufficient to care for her needs,' the court should consider the husband's wealth and earning capacity, the assets and income of the wife, the station in life of the parties, their age, physical condition, and ability to work, the length of time the parties lived together, the circumstances leading up to the divorce, and the fault which destroyed the home. Upon review of the record in this case this court finds no error in the chancellor's award.

Under the circumstances of this case, appellee was not required to prove desertion, but only the facts which led up to the separation and subsequent destruction of the marriage, and this she did. At any rate, the chancellor found that appellant deserved the "lion's share" of the fault, and we think it implicitly clear from this that he did consider the parties' relative responsibility for the destruction of the marriage.

3) Did the chancellor err in awarding counsel fees and costs to appellee, and in awarding her a judgment against him for arrearages in pendente lite alimony?

This Court emphasize once again that in his view there was sufficient evidence on the record to support the chancellor's findings, notwithstanding any discrepancies in the testimony which may have existed, and which, at any rate, appellant did nothing to explain or dispel.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

Maryland Marriage Adulterous Relation Divorce Mensa-et-thoro Lawyers Attorneys

By: Atchuthan Sriskandarajah

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