author: Couch, J.,

text:
    SUPERVISOR OF ASSESSMENTS OF BALTIMORE COUNTY v. EDWIN R. FITZGERALD et ux.
    [No. 1647,
    September Term, 1980.]

      Decided July 16, 1981.

    The cause was argued before Thompson, Melvin and Couch, JJ.

      Peter W. Taliaferro, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

      Edwin R. Fitzgerald, with whom was Carolyn J. Fitzgerald on the brief, in proper person, appellees.
   Couch, J.,

delivered the opinion of the Court.

Edwin R. Fitzgerald and Carolyn J. Fitzgerald appealed the 1978-1979 assessment of the one acre of curtilage surrounding their Baltimore County farmhouse. Following a de novo hearing conducted before a hearing examiner, the Maryland Tax Court issued an order adopting the hearing commissioner’s recommendation and affirming the assessment.

The Fitzgeralds then appealed from the Tax Court order to the Circuit Court for Baltimore County, where, after considering memoranda and hearing oral argument, the circuit court reversed in part, and affirmed in part, the order of the Tax Court. The circuit court order also reduced the subject assessment.

From this order the Supervisor of Assessments of Baltimore County appeals, and asks:

"Where one acre of land is shown to be serving as a homesite on a farm, accessible only by easement over publicly owned land, and the Maryland Tax Court affirms its assessment on the basis of residential rather than agricultural valuation, is it an error of law for a circuit court to reverse that Tax Court' order and instead order the land to be assessed at the same rate applied to the surrounding agriculturally used land?”

For the reasons set forth in this opinion we answer the appellant’s question affirmatively, vacate the order of the circuit court, and remand the case for further proceedings.

The Facts

The appellees, Mr. and Mrs. Fitzgerald, own and operate a 118-acre farm located in Baltimore County. This real property is improved by the farmhouse in which the Fitzgeralds reside. For the 1978-1979 tax year, the appellant, Supervisor of Assessments of Baltimore County (Supervisor), assessed the various component tracts of the farm as follows:

34 acres, tillable Class B, valued at $260 per acre,

20 acres, pasture, valued at $210 per acre,

58 acres, wooded, valued at $70 per acre,

5 acres, marsh, valued at $40 per acre.

These assessments, made in accordance with Md. Ann. Code, Art. 81, § 19 (b) (1), reflect the farmland’s agricultural use, and are not contested. The additional one acre of land surrounding the appellees’ farmhouse, however, was valued at $10,000 on the basis of its residential use, and was assessed at $4,500 in accordance with homestead allowances.

The Fitzgeralds appealed the latter valuation to the Maryland Tax Court. On January 21,1980, a hearing examiner heard the appeal. At that time Mr. Fitzgerald explained why he thought that the full $4,500 assessment of the homesite was erroneous. He stated that "every part” of the farm was used for agricultural purposes. Christmas trees were planted to within twenty feet of the house, ducks were nested beside the house for their protection, and quarter horses grazed on the front yard/pasture. The house itself is used as a farm headquarters, according to the appellees.

Mr. Fitzgerald also testified concerning several "detractions, deficiencies, and defects which were not taken into account by the assessor.” The property was considered less valuable than surrounding land because the only access to the farm was by a fifteen foot wide easement over Baltimore City property. This limited means of access prevents the land’s subdivision, because the Baltimore County Code requires that subdivisions be accessible by wider fee simple access routes.

The appellee further stated that his homesite’s value was reduced by its proximity to the manure pit of a dairy farm, by the noise from a local airport, and by the land’s distance from public roads.

In response, the assessor, Gordon Scharpf, Jr., explained the basis for the valuation of the one-acre site. He stated that pursuant to statutory authority the State Department of Assessments and Taxation established criteria for determining whether lands qualified for preferential taxation as agricultural property. These criteria included the local zoning of the land and its present use. He further explained that according to Department policy homesites of farms were valued as residential property, and that such homesites were "determined to be one acre, unless said homesite is obviously of greater value.”

Mr. Scharpf explained that the Fitzgerald farm was zoned R.C. 2 which requires a minimum of one acre for homesites. He also presented assessment records of other residential property in the locality, showing that one acre lots had sold for $10,000 or more during 1977.

In a colloquy between Mr. Scharpf and Mr. Fitzgerald at the end of the hearing, both men agreed that the location of the farm homesite could have a detrimental effect on its use as a private home instead of a farm headquarters and residence. Mr. Scharpf indicated his willingness to consider sales records and information concerning the value of homesites more similar to the Fitzgerald farm than those properties examined during the assessment. Mr. Fitzgerald stated, however, that he could not find a sales record of property identical to his own because detached homesites in the middle of farms were not being sold.

The hearing examiner recommended to the Tax Court that the assessment be affirmed. This recommendation recited the assessor’s policy of assessing all farm homesites as one acre. The recommendation also referred to Mr. Fitzgerald’s contention that the homesite constituted less than one acre, but found that the petitioner failed "to meet the burden of proof required by Section 229 (h) of Article 81.”

On June 3,1980, the Maryland Tax Court issued its order in the case, stating only that the Tax Court had "reviewed, considered and adopted the Examiner’s Recommendations as the grounds for its decision.” The order does not indicate that the Tax Court reviewed the record. By that order the assessment was affirmed.

From the Tax Court order the Fitzgeralds appealed to the Circuit Court for Baltimore County. They contended that the Supervisor was wrong in assessing one acre of their farm as residential property when no evidence was presented to indicate that the homesite was used for anything but agricultural use. The Fitzgeralds did not challenge the expertise of the assessor, but asked the circuit court to reverse that portion of the assessment which was based on an assumption that all farmhouses were located on one acre of residential property.

On December 22, 1980 the Circuit Court for Baltimore County ordered that the Tax Court decision of June 3, 1980 be affirmed in part and reversed in part.

Having reviewed the record, the circuit court judge determined that:

"The transcript of the testimony before the Examiner contains substantial evidence to support the decision of the Tax Court, as well as affirmative evidence to the contrary.
A review of the recommendation of the Examiner and of the decision of the Tax Court indicates that no consideration was given to the affirmative evidence produced by the property owner against the assessment.
The record .. . contains affirmative evidence against the assessment to the effect that it is unlawful for the owner of this farm to subdivide it for the purpose of selling the home and its curtilage of one acre separate from the 117 acres remaining. The only inference which can reasonably be drawn from this testimony is that the one acre homesite does not have a market value of $10,000.00. There is no market for the homesite. The only value which the homesite has is agricultural use value. Since the land surrounding the homesite was assessed at the rate of $260.00 per acre, then the homesite also should be assessed for $260.00.”

The circuit court then ordered the reduction in the homesite’s assessment for tax year 1978-79. From this order the Supervisor appeals.

The Law and the Case

In its written opinion the circuit court reviewed the decision of the Tax Court in light of the standard applicable to the Tax Court in its appellate process. This standard is set forth at Md. Ann. Code Art. 81, § 229 (h), and says:

"(h) Disposition of cause. — The Court is empowered to assess anew, classify anew, abate, modify, change or alter any valuation, assessment, classification, tax or final order appealed from, provided that in the absence of any affirmative evidence to the contrary or of any error apparent on the face of the proceedings, the assessment, classification or order appealed from shall be affirmed.”

The circuit court determined that the Fitzgeralds had presented to the Tax Court "affirmative evidence” contrary to the valuation and assessment. More importantly, the circuit court found that:

"This evidence was not discussed in the report of the Examiner to the trial court. Since the trial court [tax court] used the Examiner’s report as a basis for its opinion, it too failed to consider this evidence adverse to the substantial evidence which supported the decision of the Assessor and the County Board of Appeals.”

The circuit court, having found that the Tax Court failed to follow its own standard of review, reversed the Tax Court’s order concerning the one-acre assessment, in accordance with the standard for review set forth at Md. Ann. Code Art. 81, § 229 (o), which says:

"(o) Decision of circuit court or Baltimore City Court. — In any case, the circuit court for the county or the Baltimore City Court shall determine the matter upon the record made in the Maryland Tax Court. The circuit court or Baltimore City Court shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record. In other cases, the circuit court or Baltimore City Court may affirm, reverse, remand, or modify the order appealed from.”

Having reviewed the record, applicable statutes, and case law, we agree with the circuit court that the Tax Court erred as a matter of law in affirming the assessment without considering the Fitzgeralds’ evidence. Although substantial evidence was found in support of the assessment, the circuit court determined that "the only inference” which could be drawn from the Fitzgeralds’ evidence would serve to refute the assessment. Thus, the Tax Court’s decision could be reversed because it did not meet the Section 229 (o) two-part test of being both nonerroneous, as a matter of law, and supported by substantial evidence. Comptroller of the Treasury v. Mandel, Lee, etc., 280 Md. 575, 374 A.2d 1130 (1977); State Dept. of Assessments & Taxation v. Glick, 47 Md. App. 150, 422 A.2d 34 (1980).

In Bethlehem Steel Corp. v. Supervisor of Assessments of Baltimore County, 38 Md. App. 543, 381 A.2d 1185 (1978), we vacated a circuit court order which reversed a Tax Court order denying intervention in Tax Court proceedings. The circuit court found that the Tax Court had erred in failing to state any reasons for the decision on the petition to intervene, thus making it impossible to determine whether or not the Tax Court abused its discretion. Citing Comptrol ler v. Diebold, Inc., 279 Md. 401, 369 A.2d 77 (1977), Judge Wilner said:

"Thus, the Court in Diebold stated at 407:
'We have held that the standard by which a result reached by the Tax Court is reviewed is whether a reasoning mind reasonably could have reached the factual conclusion which that agency reached, Fairchild Hiller Corp. v. Supervisor of Assessments, 267 Md. 519, 521, 298 A.2d 148, 149 (1973). The application of this test need not and must not be either judicial fact finding or a substitution of judicial judgment for agency judgment.’
It was incumbent upon the circuit court, therefore, to look to the record in the Tax Court. The mere failure of the Tax Court to state the reasons for its decision as to intervention does not, of itself, require reversal if the record discloses substantial evidence supporting the decision; and thus, what the circuit court considered the 'most compelling reason’ for its action would not, of itself, justify that action.”

The appellant contends that in the present case no reversible error occurred by the Tax Court’s "failure to address” the evidence presented by the Fitzgeralds. We do not agree with this contention, because we do not characterize the Tax Court’s action as a failure to address the evidence, or a mere failure to state the reasons for its decision. By the language and mandate of its order, the Tax Court apparently failed even to consider the appellees’ evidence.

In the present case, the circuit court ruled that the only inference which could have been drawn from the Fitzgeralds’ evidence would have refuted the assessment. Thus the circuit court determined that a reasoning mind could not have reached the conclusion which the agency reached, and the assessment was incorrect as a matter of law. Sears, Roebuck v. State Tax Comm., 214 Md. 550, 136 A.2d 567 (1957); see Brown v. Md. Unemp. Comp. Board, 189 Md. 233, 55 A.2d 696 (1947), cited in State Dept. v. Click, supra, for the proposition that the implications of undisputed facts constitute reviewable questions of law.

Having made our own review of the evidence we cannot say that the circuit court clearly erred in reversing the Tax Court order. The circuit court exceeded its authority, however, when it ordered that the subject land be assessed at the same rate applied to the surrounding agricultural land. As stated in Diebold, supra, the application of the "reasoning mind” test must not involve judicial fact finding or a substitution of judicial judgment for agency judgment. Comptroller v. Machiz, 42 Md. App. 218, 225, 226, 399 A.2d 946 (1979).

The case must be remanded to the Tax Court for a full consideration of all of the evidence presented to the hearing examiner, and in light of the standard for valuation set forth in Md. Ann. Code Art. 81, § 19 (b) (1). This provision states in pertinent part:

"(b) Farm or agricultural use. — (1) Lands which are actively devoted to farm or agricultural use shall be assessed on the basis of such use, and shall not be assessed as if subdivided, it being the intent of the General Assembly that the assessment of farmland shall be maintained at levels compatible with the continued use of such land for farming and shall not be adversely affected by neighboring land uses of a more intensive nature. . . . The State Department of Assessments and Taxation shall establish criteria for the purpose of determining whether lands which appear to be actively devoted to farm or agricultural use are in fact bona fide farms and qualify for assessment under this subsection. Such criteria shall be promulgated in rules and regulations which shall include, but shall not be limited to, the following:
(i) Zoning applicable to the land.
(ii) Present and past use of the land including land under the soil bank provisions of the Agricultural Stabilization Act of the United States government.
(iii) Productivity of the land including timberlands and lands used for reforestation.” (Emphasis added.)

On remand, the Tax Court must be cognizant of the Court of Appeals ruling in Fairchild Hiller, supra at 521, that land would be assessed at current market value, unless the land is of such a special nature that no market for it exists, and then its value must be ascertained by consideration of its cost, nature, utility, and other characteristics.

In the present case the Tax Court must give full consideration to the legal prohibition against the subject property’s subdivision and sale. This legal prohibition, and the provision of Section 19 (b) (1) quoted above, clearly prevents the Tax Court from arbitrarily deeming a specific block of real property, being actually used for farming, to be assessable as if it were subdivided residential property.

The Tax Court may consider the zoning requirements applicable to the land, but only as one factor in the criteria for determining the proper assessment of the subject property. The court must not use the zoning law as an irrebuttable presumption of the validity of the one-acre homesite determination.

The appellant argues that the Court of Appeals approved such a presumption in Warlick v. Supervisor, 272 Md. 540, 325 A.2d 587 (1974) wherein Judge Singley stated:

"[W]e perceive no impropriety or unfairness in the separate assessment of the home site. Had the curtilage surrounding the Warlick residence been more extensive and more pretentious, containing several acres of lawns and gardens, ornamental statuary and perhaps a pool, it would have been manifestly inappropriate to extend to it the preferential tax treatment which is accorded farm property. That Mr. Warlick chose to make other use of his home site compels no different result, because its market value remained unaffected.” Id. at 544.

The Warlick decision permitted the use of Anne Arundel County’s one acre zoning requirement as "one of the criteria ... in determining whether land qualifies for the farm use assessment,” and affirmed the assessment as residential property of a one acre homesite which contained a house, extensive lawn, and property farmed by a tenant. This decision cannot be used by the appellant as authority for allowing the Tax Court to ignore additional evidence of the farm use of most of the subject property.

Recently this Court affirmed a determination that a one-half acre homesite and tenant dwelling house on unsubdivided farm property constituted residential and not agricultural property. Brown v. Supervisor, 43 Md. App. 153, 404 A.2d 1083 (1979). In that case, a two-acre zoning requirement for residences was not used for assessment purposes; instead several different factors were considered including the characteristics of the neighborhood and activity on the property.

Therefore, on remand, full consideration must be given to the evidence presented by all parties concerning the agricultural or residential use of all parts of the subject property, and their proper assessment.

Judgment vacated.

Case remanded to the circuit court for further remand to the Tax Court.

Costs to be paid by the appellant.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    THE NEWS AMERICAN DIVISION, THE HEARST CORPORATION, intervenor v. STATE OF MARYLAND et al.
    [No. 409,
    September Term, 1981.]

      Decided July 21, 1981.

      The cause was argued before Gilbert, C. J., and Morton and Couch, JJ.

      Theodore Sherbow, with whom were William A. Agee and Sherbow, Shea & Tatelbaum, P.A. on the brief, for appellant.

      Alfred L. Scanlan, Jr., Special Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Alan Betten, Special Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Howard B. Gersh, Assistant State’s Attorney for Baltimore City, on the brief, for appellee State of Maryland.

      Gary S. Offutt, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellees George Green and Willie Green.
   Gilbert, C. J.,

delivered the opinion of the Court.

HISTORY OF THE CASE

This case appeared initially in this Court as an appeal from a so-called "gag order” passed by the Criminal Court of Baltimore (Pines, J.) dated April 29, 1981. The order was sought by George Green and Willie Green (the Greens), appellees and cross-appellants, and defendants in a criminal proceeding involving allegations of a double murder, robbery, and related offenses. The Greens were upset by what they apparently felt was the prosecution’s attempt to try its case against them in the media.

The appellant, News American Division, The Hearst Corporation (News American) intervened in the Criminal Court and opposed the passage of the "gag-order.” Following Judge Pines’ signing of the order, the News American appealed to this Court and filed a motion requesting that the exigencies of the situation suggested that the appeal be advanced so that we might hear and determine it as expeditiously as possible. The Greens appealed the Criminal Court’s having allowed the News American to intervene in the first instance.

While the appeal was pending before this Court, the State filed a suggestion of removal, and the Criminal Court (Dorf, J.) removed the matter to the Garrett County Circuit Court for trial. Thus, when the appeal was argued, we dismissed it as moot because the order of the Criminal Court was effective during the pendency of the Green case before that court only. Consequently, since it was removed to Garrett County, the "gag-order” was no longer viable.

Shortly after we dismissed the appeal as moot, the State’s Attorney for Baltimore City withdrew his request for removal. In so doing, he breathed new life into the "gag-order.” The News American, in light of the resurrection of the "gag-order,” promptly moved for a reconsideration of our dismissal. Over the objection of the Greens we decided to grant the motion of the News American and to hear the case on its merits.

ISSUES ON APPEAL —

The appellant, News American, sees the issue before us as one of constitutional magnitude. It asserts:

"The trial court’s order of April 29,1981, violates rights guaranteed by the Constitution of the United States and the Constitution of Maryland as a prior restraint on freedom of speech and of the press and as a denial of access to information concerning judicial proceedings.”

The Greens have a somewhat different view of the question before the Court. They aver that:

The News American should not have been allowed to intervene in the criminal case and that the trial judge erred in permitting the News American to intervene.

HOLDING OF THE COURT —

For the reasons stated infra, we hold that the News American should not have been allowed to intervene in the criminal case between the State of Maryland and the appellees-cross appellants, George and Willie Green. That is not to say that the newspaper was without a way to seek relief from the order of the Criminal Court of Baltimore. The remedy, however, lies, not by way of direct intervention in the criminal case, but rather through a writ of mandamus, or mandatory injunction or declaratory judgment obtained from a court of competent jurisdiction.

THE LAW —

The News American contends that although "the issue of the media’s right to intervene in a criminal case has never been expressly addressed by a Maryland appellate decision ... this court has impliedly held that the media may be permitted to intervene in a criminal case and appeal from an order adversely affecting their rights.”

To support that statement, the newspaper cites the recent case of Patuxent Publishing Corp. v. State, 48 Md. App. 689, 429 A.2d 554 (1981), but they draw a far greater conclusion from Patuxent Publishing than is warranted. In Patuxent, the trial court allowed the media to intervene so that the media might mount a challenge to the court’s entry of a "gag-order” and also an attack upon a second order that closed the "gag-order” hearing to the public. The standing of the media to intervene in the criminal case was neither raised in the trial court nor in this Court. Because it was not raised, it was not considered. We think that to deduce implicit approval of the media’s right to intervene in a criminal case from an unraised and undecided issue is akin to presuming waiver from a silent record, and that is impermissible. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

Undoubtedly, the public and the press have a right of access to criminal trials. The Supreme Court of the United States has said that that right is "implicit in the guarantees of the First Amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).

Even absent the Constitutional provision, the right existed at common law and, thus, has been part of Maryland legal history since its founding in 1634. Following the Revolutionary War, the right to a public trial continued to be vested in the people and the press. See Maryland Constitution, Declaration of Rights, Article V.

While the press, as members of the general public, are entitled to a forum to assert their First Amendment rights, they possess "no special standing” or status to challenge court orders limiting access of the public and press to criminal proceedings. "Their privilege to attend court proceedings is neither greater nor lesser than that of members of the general public, for their status derives from the rights of the general public for whom they merely act as surrogate and as witness to what the general public could itself witness were it able to be present.” Oxnard Publishing Co. v. Superior Court of Ventura County, 68 Cal. Rptr. 83, 88 (1968). The press, however, needs no special standing because as members of the general public, they have an absolute right to seek access to the criminal courts. Id.; Wrather-Alvarez Broadcasting, Inc., v. Hewicker, 147 Cal. App. 2d 509, 305 P.2d 236 (1957); Kirstowsky and Hearst Publishing Co. v. Superior Court of Sonoma County, 143 Cal. App. 2d 745, 300 P.2d 163 (1956); E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955).

The Court of Appeals of New York, in United Press Association v. Valente, 308 N.Y. 71, 123 N.E.2d 777 (1954), passed upon a matter wherein United Press had instituted an action in the nature of a writ of prohibition to restrain a judge in a criminal case from enforcing an order that excluded the general public and the press from the courtroom during the presentation of the people’s case. The trial court’s order was grounded on the theory that public decency required the exclusion. The Court of Appeals of New York, in agreeing, stated:

"The fact that petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public. Since the only rights they assert are those supposedly given 'every citizen’ to attend court sessions, ... they are in no position to claim any right or privilege not common to 'every [other] citizen.’ ” (Citation omitted.) 123 N.E.2d at 783.

On the reverse side of the coin from the public-press access to the criminal courts is the ever important right of the accused to a fair and impartial trial. It sometimes happens that the right of the public and press collide head-on with the accused’s right to a fair trial. When that occurs, the trial judge must undertake a delicate balancing of the respective rights of the public and press vis-á-vis those of the defendant, so as to resolve the matter in a way that protects the rights and privileges of both interests.

We think that is precisely what Judge Pines endeavored to do in the instant case. Neither the public nor the press has been excluded from the courtroom during the trial of the Greens. The restraint order by the judge is directed to a particular class of persons, namely the lawyers and allied court personnel. The order prevents them from making any extra-judicial announcements, pronouncements, or comments about the case to the public or the media.

Although some "news sources” have been muffled, there is nothing in the order that prevents the media from publishing what they may learn about the case. Cf. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975), rev’d on other grounds sub nom. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).

THIRD PARTY INTERVENTION IN CRIMINAL PROCEEDINGS

Thus far, we have discussed the right vel non of the media to challenge a court order excluding the public and the press from a trial.

We now turn our attention to consideration of the dispositive issue in this appeal, the right vel non of any third party to intervene directly in a criminal prosecution.

In Central South Carolina Chapter, Society of Professional Journalist, Sigma Delta Chi v. U.S. District Court for the District of South Carolina, 551 F.2d 559 (4th Cir. 1977), cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 771 (1978), the district court judge entered a pretrial order that regulated the conduct of participants in a trial, and also restricted the conduct and seating of the press in the courtroom. The United States Court of Appeals for the Fourth Circuit dismissed an appeal of the order by a professional society of journalists. Judge Widener wrote for the court:

"It is clear that the Society should not participate in a case to which it is not a party. Even in civil cases, intervention requires an interest in the transaction or property before the court. FRCP 24. But the Society has no interest in the determination of the defendant’s guilt or innocence to justify its intervention. Moreover, there is no counterpart to intervention in the criminal law or rules.
Since we find nothing in the criminal law or rules permitting the Society to intervene in this case, to introduce collateral issues, and to disrupt the pending criminal trial, we dismiss the appeal.” Id. at 563, 565.

A similar result was reached by the Washington State Supreme Court in State v. Bianchi, 92 Wash. 2d 91, 593 P.2d 1330 (1979). There, the prosecution and the defense appealed from an order of the trial court that permitted a newspaper to intervene for the sole purpose of contesting an order limiting access of the public and the press to the "Affidavit of Probable Cause Determination,” which, we infer, set out some of the details of the case. Upon the motion of both the prosecution and the defense, the trial court had granted a protective order sealing the "Affidavit of Probable Cause Determination.” The high court for the State of Washington held:

"There is no rule, statute, or precedent in this state that would allow a third party to intervene in a criminal proceeding. The Washington Rules of Criminal Procedure make no provision for such intervention. Intervention of right is provided for in civil cases only if the intervening party claims 'an interest relating to the property or transaction which is the subject of the action.’ Washington Superior Court Civil Rule 24. The only purpose of a criminal trial is the legal determination of the defendant’s guilt or innocence. The Herald has no direct interest in this determination to justify its intervention and the disruption of the pending criminal proceedings inherent in the intervention process. The Herald’s remedy must therefore lie in a separate action for declaratory judgment, mandamus, or prohibitions.”

Earlier, our most western state, Hawaii, held that representatives of the press could not intervene in the pretrial stages of a criminal proceeding for the purpose of preventing closure of a preliminary hearing. The Hawaiian Supreme Court said in Gannett Pacific Corp. v. Richardson, 59 Haw. 224, 580 P.2d 49 (1978), that:

"The Hawaii Rules of Penal Procedure make no provision for nonparty intervention in criminal proceedings, and the adjudicated cases hold that a third party is not entitled to intervene in a criminal prosecution on the ground that he has no direct interest in the determination of the guilt or innocence of the accused to justify his intervention. ... To permit a third party to intervene would 'unnecessarily encumber pending litigation and invite the entry of "nonparty-parties” when the right or interest sought to be enforced is not directly involved in the subject matter of the pending proceeding.’ .. . His remedy must ordinarily lie in an original action in prohibition ... or in mandamus. ...” (Footnote omitted.) (Citations omitted.) 580 P.2d at 58.

See also State v. Simants, supra.

Just as in Central South Carolina Chapter, Society of Professional Journalist, Sigma Delta Chi, Bianchi, Gannet Pacifíc, and Simants, Maryland has no statute or rule of court addressing the intervention by third parties in criminal cases. Md. Rule 208, the only rule of Procedure concerned with intervention, provides in pertinent part:

"a. Of Right.
Upon timely application a person shall be permitted to intervene in an action: (a) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.
b. Permissive.
1. Person.
Upon timely application a person may be permitted to intervene in an action when his claim or defense has a question of law or fact in common with the action.”

A comment to Rule 208 declares that "[t]he language of these provisions, while taken substantially from Federal Rule 24 and New Jersey Rule 4:37, is practically declaratory of the existing Maryland common law.”

There is no counterpart to Rule 208 in the criminal rules of procedure. We think the omission of a rule sanctioning intervention in criminal cases was by way of purposeful design rather than mere omission. To allow third party intervention in a criminal prosecution would be to permit the introduction of collateral issues, disrupt the orderly process, and create confusion, where, in order to protect the rights of the accused, clarity is a manifest necessity. Aside from that distinct possibility, delay in the trial of the criminal case may be occasioned, as in the instant matter, by appeal of collateral issues.

We adopt the views and disposition of the United States Court of Appeals for the Fourth Circuit as expressed in the Central South Carolina Chapter case.

Accordingly, we dismiss the appeal.

Original appeal dismissed.

Order of the Criminal Court of Baltimore, permitting intervention by appellant, reversed.

Costs to be paid by appellant-cross appellee.

      . The order provided:
      "(1) No party covered by this Order shall make or issue any extrajudicial statement, written or oral, for dissemination by means of public communication, relating to the above-captioned cases concerning:
      (a) The prior criminal record, or the character or reputation of the Defendant, except a factual statement of the Defendant’s name, age, residence, occupation, and family status;
      (b) The existence of contents of any confession, admission, or statement given by the Defendant, or the refusal or failure of the accused to make any statement;
      (c) The performance of any examinations or tests or the accused’s refusal or failure to submit to an examination or test;
      (d) The identity, testimony, or credibility of prospective witnesses, except that the identity of the victim may be announced if the announcement is not prohibited by law;
      (e) The possibility of a plea of guilty to the offense charged or a lesser offense;
      (f) Any opinion as to the Defendant’s guilt or innocence or as to the merits of the case or the evidence in the case.
      (2) The foregoing shall not be construed to preclude a party covered by this Order, in the proper discharge of his official or professional obligations, from announcing the fact and circumstances of arrest, the identity of the investigating and arresting officer or agency, and the length of the investigation; from making an announcement, at the time of seizure of any physical evidence other than a confession, admission or statement, which is limited to a description of the evidence seized; from disclosing the nature, substance, or text of the charge, including a brief description of the offense charged; from quoting or referring without comment to public records of the court in the case; from announcing the scheduling or result of any stage in the judicial process from requesting assistance in obtaining evidence; or from announcing without further comment that the accused denies the charges made against him.
      (3) This Order does not apply to statements made, evidence given, or pleadings filed in this action. Of course, all proceedings in the action are and will continue to be public and matters of public record.
      (4) No person covered by this Order shall avoid the effect of it by actions which deliberately bring about a violation of this Order. Á copy of this Order shall be served on each party named herein, immediately upon its entry, and as each witness is summoned, a copy of this Order shall be served on him with the service of a summons.
      (5) This Order is binding on all Court personnel, all attorneys, representing the State and defense, including both the assistants involved in the trials of the instant cases and the Deputy State’s Attorney and State’s Attorney for Baltimore City and the State Public Defender, District Public Defender, or the Defendant and Co-defendants (and their attorneys), and on each witness for both sides. It shall remain in force during the pending of any or all of the above-captioned cases before this Court.”

      . We are not to be understood as approving or disapproving the order passed in the instant case. Our comments on the order are intended solely to indicate its scope, not its validity.

      . Md. Rule 1 specifically states that "[t]he Rules in Chapters.100-600 do not apply to the proceedings dealt with in Chapter 700 [criminal causes].”


author:
Melvin, J.,
      Gilbert, C.J.,

text:
    ROBERT PHILIP ROTH v. PATRICIA ANN ROTH
    [No. 997,
    September Term, 1980.]

      Decided September 1, 1981.

    The cause was argued before Gilbert, C. J., and Melvin and Couch, JJ.

      William R. Evans for appellant.

      Ronald J. Miller for appellee.
   Melvin, J.,

delivered the opinion of the Court. Gilbert, C. J., dissents and files a dissenting opinion at page 445 infra.

Although the parties put it somewhat differently, we think the issue to be decided in this appeal is this: Did the chancellor have the authority to award alimony to a putative wife after granting her putative husband a divorce a vinculo matrimonii on the ground that at the time of their purported marriage the putative wife was already married to a then living husband?

The putative husband, Robert Philip Roth, the appellant here, does not argue the appellee’s need for support or the amount of alimony awarded. He contests only the authority of the chancellor to award any alimony at all to his putative wife, the appellee, Patricia Ann Roth, in the circumstances of the case.

On January 4,1960, Robert and Patricia, then 29 years old and 27 years old respectively, were married by a civil ceremony in Arlington, Virginia. They both testified that the reason for marrying at that time was that Patricia was pregnant. Unfortunately, she was also still married to William Lee Hoffman. The chancellor credited her testimony that Robert was aware of this fact at the time of the Virginia marriage. She testified that she and Robert had discussed the matter at the time and "as soon as my divorce [from Hoffman] was to come through, we were to be remarried ... [W]e just both agreed with it, that we would get remarried again so that Melissa [the child with whom she was pregnant] ... would be legitimate.” Her divorce from Hoffman "came through” one month later, February 3, 1960, but thereafter nothing further was said or done about "remarrying.” They continued, however, to live together in Baltimore for eighteen years as if they were legally married. Two children were born to them. In the words of the chancellor, "they lived together and worked together, just as if they were legally married. They had their arguments back and forth. The only thing that was lacking was a legal marriage.”

On August 8, 1978, Robert left the "marital” home never to return. He testified that he left because he "was run off, run out of my house by threats of being shot, and I knew at that time I needed a lawyer. .. ,” He said that it was only after he consulted his lawyer that he learned of the date of Patricia’s divorce from Hoffman. As we have already stated, however, the chancellor accepted Patricia’s testimony to the contrary, i.e., that Robert had known all along of the illegality of the Virginia marriage ceremony.

In any event, on August 16, 1978, Robert filed a Bill of Complaint in the Circuit Court for Baltimore County praying for a divorce a vinculo matrimonii from Patricia on the ground that the Virginia marriage of the parties was void ab initio, the reason being that at the time of the "marriage” Patricia was still married to Hoffman. In response, on September 7, 1978, Patricia filed an Answer and a Cross-Bill of Complaint. The Answer admitted the essential allegations of Robert’s Bill of Complaint, but averred that Robert had full knowledge of Patricia’s marital status at the time of the Virginia marriage ceremony and that he had promised "to enter into another marriage ceremony at a future time in the event the divorce proceedings pending between the Defendant and her former husband were not final at the time the parties hereto married”; that she entered into the Virginia marriage as a result of Robert’s representations "and relied thereupon and the parties have lived together as husband and wife since the date” thereof; and that under the circumstances it would be "inequitable and unjust to allow the Plaintiff to obtain a divorce on the grounds that this Defendant was married at the time of the parties’ marriage ceremony. .. .”

Patricia’s cross-bill sought a divorce a vinculo matrimonii from Robert on the ground of adultery. The cross-bill also alleged that Robert abandoned and deserted her without just cause or reason on August 8, 1978. Her prayers for relief included a request for temporary and permanent alimony.

After a hearing on the merits on May 15, 1980, the chancellor (therHonorable John E. Raine, Jr.) rendered his oral opinion from the bench followed by a formal written decree dated May 20, 1980. On the uncontroverted facts he found that the "marriage was void ab initio, so that Mr. Roth is entitled to divorce.” That portion of the decree is not contested, nor could it be. See Townsend v. Morgan, 192 Md. 168, 173 (1949), holding that "common law marriages are not valid in Maryland and, therefore, when a party who has a spouse living marries another, cohabitation under the second marriage after the death or divorce of the first spouse does not give validity to the second marriage.”

On the issue of alimony, Judge Raine said in his oral opinion:

"The question arises as to whether the wife is entitled to any alimony. In the Clayton case, referred to by Mr. Miller, alimony was allowed to a wife who had filed suit against the alleged husband, but there it was the husband who had committed the bigamy, and the wife was the innocent party. This is the reverse of that situation. Yet, I am inclined to think that this matter should be approached from the standpoint of a divorce on non-culpable grounds in which event a court may award alimony considering the two factors of the marital fault and the needs of the wife, Flanagan v. Flanagan, for example.”
"I’m going to rule, although it’s conceded that this is no case law, that Mr. Roth has got to pay reasonable alimony to the woman that he married in Virginia because, in that respect, I think that they were both in pari delicto, at least he became aware of the pre-existing marriage to Hoffman within a very short period of time after the Virginia marriage ceremony, and having remained silent and inactive about it for some eighteen years, he cannot now excuse his own participation in the invalid marriage.”

After finding that Patricia "does have some needs that she cannot meet in its entirety” and considering the financial circumstances of the parties, the judge decreed that she be awarded $50.00 per week as alimony. Robert was also ordered to pay her an additional $15 per week to amortize the accrued arrearages in alimony pendente lite previously ordered.

In Clayton v. Clayton, 231 Md. 74, 188 A.2d 550 (1963), the case referred to by Judge Raine in his oral opinion, the chancellor below had awarded alimony to a putative wife who, after proving that her putative husband was still married to another at the time of their marriage, obtained a divorce on the ground that the marriage was void ab initio. The Court of Appeals affirmed. The Court recognized the prevailing case law that in the absence of statute alimony is generally not allowed in any case where the marriage is declared null and void ab initio, but went on to say that "by statute in many states, support for the putative wife is allowed in all cases of divorce or annulment” and that, "In other states, the same result is reached, by construction of the divorce statute to permit an award of alimony, even where the ground of divorce is that the marriage is a nullity.” After construing the Maryland divorce statutes, the Court said, "We take the same view.” The ultimate reasoning and holding of the Court is contained in the following paragraph of the opinion, at 77-78:

"The key to the instant case, as we see it, is the legislative declaration that alimony is allowable whenever there is a decree for divorce. We read 'alimony’ not in the technical sense of the word, but as commensurate with 'support’. The inclusion of prevenient invalidity as a ground for divorce must be ascribed some meaning, and we think it shows a legislative intent to permit an award of alimony in a proper case. The writers and cases recognize that the problem is one of statutory construction. In the absence of statute, alimony is generally not allowed in any case where the marriage is declared to be null and void ab initio. See 17 Am. Jur. Divorce and Separation, § 562; Nelson, Divorce and Annulment, (2d ed.) § 31.56. The cases are collected in a note 54 A.L.R. 2d 1410. But by statute in many states, support for the putative wife is allowed in all cases of divorce or annulment. In other states, the same result is reached, by construction of the divorce statutes to permit an award of alimony, even where the ground of divorce is that the marriage is a nullity. See Jones v. Jones, 296 P. 2d 1010 (Wash.) and Eggleston v. Eggleston, 103 N. E. 2d 395 (Ohio). We take the same view. If other questions relating to voidable marriages and annulments are left unanswered, that is a matter for legislative consideration, as suggested by Professor Strahorn in the articles cited, supra, and by Judge Hammond in his concurring opinion in Johnson v. Johnson [202 Md. 547, 552, 558].” (Emphasis added).

Robert argues that because Patricia failed to establish that she was entitled to a divorce on the grounds alleged in her cross-bill, she is not entitled to alimony. It is true that the chancellor could not have granted Patricia a divorce on the grounds alleged by her in her cross-bill. It is also true, as contended by Robert, that there can be no grant of permanent alimony unless the claimant "can show grounds sufficient to support a decree of divorce, either a vinculo or a mensa.” Stein v. Stein, 251 Md. 300, 302 (1968). It does not follow, however, that because Patricia failed to obtain a divorce on the grounds she alleged, the chancellor was precluded from considering awarding her alimony. This is so because the evidence in the case established that she, as well as Robert, had a statutory ground for divorce, i.e., that their marriage was void ab initio. The fact that it was Patricia and not Robert, albeit with his knowledge and encouragement, who committed bigamy, would not have prevented Patricia from obtaining the divorce on the same ground alleged by Robert. See Townsend v. Morgan, supra, holding that, "the marriage status being on a different footing from contracts generally, a party may be relieved from a void marriage, although fully aware of its invalidity when contracted.” Id. at 175.

It thus seems clear that under the Maryland statute either party may obtain a divorce where there has been a void marriage, without regard to the conduct, fault, condition or consent of the other party. In this respect, a divorce on void ab initio grounds is similar to a divorce granted on so-called "no fault” grounds (e.g., three years separation), in that when a divorce is granted to a party on such grounds "it can hardly be contended that this grant was not so much a decree in favor of one as the other.” Flanagan v. Flanagan, 270 Md. 335, 338 (1973); Wallace v. Wallace, 290 Md. 265, 281 (1981). We agree with Judge Raine that, in the sense that what would otherwise be considered "marital fault” does not bar either party to a void marriage from obtaining a divorce, a divorce obtained on void ab initio grounds may be analogized to one obtained on nonculpatory grounds, and what was said in Flanagan concerning alimony in such cases is fully applicable to the present case:

"We have consistently construed this section [former § 3 of Art. 16, providing: 'In cases where a divorce is decreed, alimony may be awarded’] when applied in connection with divorces on nonculpatory grounds to permit an allowance of alimony to the wife regardless of who originally initiated the action. Hughes v. Hughes, 216 Md. at 377; Foote v. Foote, 190 Md. 171, 57 A.2d 804 (1948). This is so because when a divorce a vinculo is given to one spouse on the grounds of a five year [now three year] separation of the parties, it can hardly be contended that this grant was not as much a decree in favor of one as the other. Therefore, in any suit for divorce on nonculpatory grounds, dissolution of the marriage permits the court to consider the granting of alimony so long as that question is put in issue by either the original bill or a cross-bill, or by requesting such affirmative relief in an answer. See Munich Co. v. United Surety Co., 113 Md. 200, 77 A. 579 (1910); Young v. Twigg, 27 Md. 620 (1867). Once the issue is raised the opposing party may respond in any appropriate manner to this request.” (Emphasis added) Id. 338-339.
"Throughout the years, our cases have said that when a wife’s fault precludes her from procuring a divorce she is prevented from obtaining alimony. Stein v. Stein, 251 Md. 300, 302, 247 A.2d 266 (1968); Keys v. Keys, 251 Md. 247, 247 A.2d 282 (1968) and the cases cited in each. This result was axiomatic as a spouse’s right to obtain a divorce, either a vinculo or a mensa, is a requirement for the obtention of alimony — ergo, no right to divorce, no right to alimony. But those cases are inapplicable here because 'no fault divorce’ changes the predicament in which she would otherwise find herself, as either party regardless of fault can secure a divorce if he or she can meet the requirements of one of the authorized nonculpatory grounds. On the other hand, the previous opinions of this Court mentioned earlier, which establish the standards for fixing alimony in suits based on culpability, are applicable and make facile our determination that fault is one of the several factors to be considered in properly awarding alimony in a nonculpatory divorce as well. This is logically so and there is nothing in the public policy of Maryland as expressed in the statute to the contrary.” Id. 339-340.

In the present case, we think Patricia’s cross-bill seeking alimony and her prayer for general relief properly put in issue the question of alimony. Furthermore, as we have already stated, the evidence established that Patricia had the same void ab initio ground for divorce as did Robert, and alimony is, as established by the Clayton decision, allowable on that ground in a proper case. We, therefore, conclude that the chancellor was fully authorized to consider awarding Patricia alimony. Under all the circumstances revealed by the record, we further conclude that this was a "proper case” for the award of alimony, such that the chancellor did not abuse his discretion in making an award.

We think the result we reach in this case is buttressed by the recent Maryland Court of Appeals case of Wallace v. Wallace, supra, as well as by a number of decisions in other jurisdictions that have considered the issue of awarding alimony to a bigamous wife whose marriage has been declared invalid at suit of the putative husband.

In Wallace, the estranged wife brought suit in the Circuit Court for Montgomery County seeking a divorce a mensa et thoro on the grounds of her husband’s desertion, custody of the couple’s minor children, child support and alimony. While the suit was pending, the husband established residence in Virginia and obtained a valid divorce a vinculo matrimonii in an appropriate Virginia court based on that state’s statutory non-culpable ground that the parties had lived separate and apart, without interruption or cohabitation, for a period exceeding one year. The wife then filed an amended bill of complaint, abandoning her prior claim for a Maryland divorce. By the amended bill she did seek, however, permanent alimony. The basis of her alimony claim, alleged in her amended bill of complaint, was that she "could also have instituted” suit for divorce in Virginia "and would have been entitled to a divorce on the same identical ground, to wit, the no fault ground of having lived separate and apart, without interruption and without any cohabitation for a period in excess of one year.” The husband contended that his former wife was not entitled to alimony because, in his view, she could not demonstrate the existence of grounds for divorce against him. The Court of Appeals affirmed an alimony award to Mrs. Wallace granted by the chancellor, thus affirming this Court’s decision in Wallace v. Wallace, 46 Md. App. 213 (1980).

Speaking through Judge Digges, the Court of Appeals held that "there are two theories upon which Mrs. Wallace may rely to establish the necessary predicates, grounds for a divorce either a mensa or a vinculo, for the obtention by her of alimony from her former husband.” Id., p. 274. Noting that Mrs. Wallace did not challenge the validity of her husband’s Virginia divorce, the Court stated:

"... Curiously as a result of this, respondent is placed in the awkward position of having to establish grounds for a divorce notwithstanding the fact that she has already been validly divorced from her husband on a non-culpatory ground, and even though, because of that adjudication, she is not in actuality able to obtain a divorce from the Maryland court. And it is the hypothetical nature of the query here which requires our continuous use of the conditional mood and past perfect tense when referring to the evidentiary burden which Mrs. Wallace shouldered in this case. That she cannot in fact obtain a divorce, however, does not, by itself, defeat her claim for alimony, for while this State’s law requires that she show grounds for a divorce, it does not compel her either to actually obtain one in this State or to prove that she in fact could have obtained one if she so desired.” (Emphasis added). Id., p. 274.

The first basis upon which the alimony award was upheld was that the evidence showed that Mrs. Wallace "did have grounds for a divorce a mensa et thoro based on a voluntary separation under § 25 of Article 16 ... Thus, inasmuch as a divorce a mensa will support an award of alimony, Mrs. Wallace has shown a ground which would have entitled her, absent the Virginia decree, to a divorce. . . .” (Emphasis added). Id., p. 277. The Court then rejected the argument that Mrs. Wallace’s pre-divorce adultery is a recriminatory offense that bars divorce on this non-culpable ground. The Court held, however, that the adultery, as marital misconduct, was an important consideration in determining an alimony award. Id., p. 281.

A significant effect of this holding in Wallace upon the case before us is that in determining whether Mrs. Wallace had established the necessary predicate for an alimony award, i.e., that she show the existence of grounds for a divorce either a mensa or a vinculo, the Court did not restrict her to relying upon only the grounds alleged in either her original bill of complaint (adultery and abandonment) or her amended bill of complaint (one year separation under Virginia law). The issue of alimony having been raised, the Court looked to the evidence as a whole to determine the existence of grounds that would have entitled her to a divorce absent the Virginia decree. Thus, we find support for our holding in the present case that Patricia Roth, having raised the issue of alimony in her cross-bill of complaint, would have been entitled to a divorce on a void ab initio ground even though she did not allege that ground in the cross-bill. Consequently, the public policy engendered by the requirement of proof of grounds for divorce to support an award of alimony has been satisfied.

Many of the cases from other jurisdictions that have awarded alimony to a bigamous spouse after her marriage to her putative husband has been declared void, either by decree of divorce or an annulment decree, are collected in 54 A.L.R.2d 1410, 1413-1418, the same note cited by the Court of Appeals in Clayton v. Clayton, supra, and in a later note 81 A.L.R.3rd 281, 291-302. Our reading of these cases convinces us that where, as in Maryland, the applicable statutes are interpreted to permit the court, in the exercise of its discretion, to award alimony where a divorce is granted on void ab initio grounds, this discretionary power is not limited to cases where the alimony claimant is without fault. Typical of these cases is Johnson v. Johnson, 295 N.Y. 477, 68 N.E.2d 499 (1946), where under a New York statute permitting the court to provide "support of the wife by the husband as justice requires” when an action is brought to declare the nullity of a void marriage, the Court of Appeals of New York rejected a contention that the statute was intended to apply only against a bigamist husband. In that case the wife originated a suit for separation and the husband counterclaimed for an annulment on the ground that the wife’s prior marriage to another was still in existence. A lower court dismissed the wife’s complaint for separation, granted the husband’s request for annulment, but, nevertheless, awarded the wife alimony. In affirming that decision, the appellate court said:

"True enough, the prime evil which the commission sought to remedy was the unhappy plight of the innocent wife married to a bigamist husband; under the law as it then existed, she could terminate this undesirable and illegal relationship only at the cost of relinquishing all claim to support, while the offending husband could, at his pleasure, avail himself of the invalidity of a marriage — void because of his own misdeed — and slough off the financial responsibilities which he had voluntarily assumed. Nevertheless, the commission obviously did not desire to restrict the application of the statute to that situation alone, for the very language employed — 'When an action is brought to annul a marriage or to declare the nullity of a void marriage’ — demonstrates unequivocally an intent to embrace all the situations in which the Domestic Relations Law, §§ 5, 6, 7, declares a marriage to be void or voidable.
Moreover, the statute is not, by its terms, limited to cases where the wife is the innocent party ...” 68 N.E. at 500.

In another New York case, Whittleton v. Whittleton, 3 Misc.2d 542, 152 N.Y.S.2d 117 (1956), the facts of which appear quite similar to the case at bar, alimony was awarded to a putative wife after her putative husband had successfully obtained an annulment of the marriage on the ground that his wife had a husband living at the time the parties went through the marriage ceremony. In holding that this was a "proper case wherein the Court may providently exercise its discretion” in favor of granting alimony, the Court said:

".. . While the defendant was guilty of misconduct in bringing about this third marriage, the plaintiff is not without fault. He knew that defendant had not validly dissolved her marriage with Crooks. He was at least put upon inquiry to determine for himself if Crooks was still alive at the time he married the defendant. The plaintiff has lived with and cohabited with the defendant for a number of years as husband and wife. He should not be permitted to entirely escape the consequences of his improvident conduct.” 152 N.Y.S. 2d at 123-124.

Judgment affírmed; costs to be paid by appellant.

Gilbert, C.J.,

dissenting:

I dissent because I strongly believe the result reached by the majority is an injustice to the appellant.

When the parties entered into the "marriage” in this case, the appellee was fully aware that she lacked the legal capacity to do so. She knew that her prior marriage was not dissolved, yet she plunged ahead, ignoring the consequences of her bigamous act. To now award her alimony as a reward for breaking the law defies common sense.

The trial judge found that the parties were in pari delicto. Ordinarily, when the litigants are equally guilty, the law leaves them where it finds them. That, however, is not what was done in this case. Here, after determining that the appellant and appellee were equally guilty, the court, by its award of alimony, implicitly made the appellee "more equal” and "less guilty” and the appellant "more guilty” and "less equal.”

The majority rely upon Clayton v. Clayton, 231 Md. 74 (1963), but I think that case is factually inapposite. In Clayton, the appellee woman received alimony because the man who had married her committed bigamy in that he was already married. In short, there, the "wife” was the innocent party, while in the instant case, it is the "husband” who is the "innocent party.” At least, he is innocent in that he did not commit bigamy, the appellee did.

Although Md. Ann. Code art. 16, § 1, does declare that a court may award alimony in any case where a divorce may be granted, and Md. Ann. Code art. 16, § 24 permits divorces in those situations where the marriage is void ab initio, I cannot believe that the Legislature’s intent was to reward the wrongdoer by giving her a monetary award in the form of alimony for her wrongful and illegal conduct.

The net effect of the affirmance of the award of "alimony” in the instant case is to change, by judicial alchemy, "alimony” into "palimony.”

I would reverse.

      . Art. 16, § 24 (Md. Code Annotated, 1957, 1981 Cum. Supp.) provides that, "Upon a hearing of any bill for divorce, the court may decree a divorce a vinculo matrimonii for the following causes, to wit: ... secondly, for any cause which by the laws of this State, render a marriage null and void ab initio.”

      2. Earlier in his oral opinion, the chancellor found that "the relationship between the parties was such that Mr. Roth did know [at the time of the marriage] that she had not finalized her divorce from Hoffman. At least, any reasonable person would have known of that under all the circumstances.”

      3. Former § 3 of Art. 16, in effect at the time of the Clayton decision and also applicable to the present case, provided: "In cases where a divorce is decreed, alimony may be awarded.”

      . The second theory upon which the Court found that an award of alimony could be predicated was "that independent of grounds for a divorce under the Maryland statutes, the Virginia divorce decree may be relied on by [Mrs. Wallace] to support an award of alimony from a Maryland court.... There exists no reason in our view why Mrs. Wallace cannot rely on the out-of-state divorce decree in the proceeding initiated by her in Maryland to obtain permanent alimony. Commencing from a generality, we observe that an award of alimony, though authorized by statute and stemming from the common-law duty of support, is founded upon notions of equity and considerations of public policy. See Altman v. Altman, 282 Md. 483, 492-94, 386 A.2d 766, 771-72 (1978); Flanagan v. Flanagan, supra at 341-42, 311 A.2d at 411.” Id. at 283-284.