15 A.2d 914 | Md. | 1940
The bill of complaint was filed on March 10th, 1925, by the wife, Marian I. Winkel, against the husband, Bernard A. Winkel. Its object was to obtain separate maintenance or alimony for the wife, to require the defendant to deliver certain real and personal property which she claimed as hers, and for an injunction restraining the *493 defendant from selling and disposing of certain personal property. The bill was not for a divorce but for alimony. It did not contemplate the dissolution of the marital tie. Nor have the spouses ever been granted either a divorce a mensa et thoro or a divorce a vinculo matrimonii.
After disposing of the questions in dispute concerning the real and personal property, the court decreed "that the defendant pay to his wife pending further order of the court the sum of twelve dollars a week" for her support and maintenance, beginning from the time she should fully comply with the requirement that she convey by deed to her husband all her title and interest in certain real estate. The decree is dated May 23rd, 1925, but the wife failed to convey, and the court appointed a trustee to grant the land to the husband, which was done on September 11th, 1931. The alimony consequently began to accrue from September 11th, 1931. The questions on these appeals begin with that date.Winkel v. Winkel,
The husband has never paid the wife any of the alimony awarded. Her testimony is that her subsistence before September 11th, 1933, was mainly derived from the payment to her by her husband of a weekly rental of twenty-five dollars for a filling station operated by him on a property in Frederick which she owned and whereon she had her home. This source of income having stopped, the wife, on September 11th, 1933, filed a petition that the original decree awarding alimony be modified by an increase. The husband filed a motion for the dismissal of the petition on the ground of the wife's contempt in not executing the grant to him of the property mentioned in the decree of 1925. There then ensued a protracted course of indecisive pleading and litigation, which culminated in the petition of the wife, which was filed on October 5th, 1937, and amended on March 10th, 1938. In this petition she requested that the alimony be increased to fifteen dollars a week or to such sum as she might be found entitled to, and that she *494 be awarded what she should receive by reason of the husband's default. The husband filed a combined answer and demurrer. There was a denial of the material facts and of the wife's right to have revised the decree of May, 1925, and to have re-opened the amount of alimony to be paid. The chancellor overruled the demurrer of the husband and, on his appeal, the chancellor's ruling was affirmed on February 2d 1939, in Winkel v. Winkel,supra. The cause was remanded for further proceedings, which were had. At the time of the remand, the petition of the wife for an increase in the amount of alimony, which was filed on October 5th, 1937, was pending and awaiting determination. On April 13th, 1939, the wife filed three additional petitions. One was for an order to require the husband to pay the solicitors for the wife a counsel fee for their services in connection with the appeal ofWinkel v. Winkel, supra; and the costs of the appeal in the equity court until the appeal was taken. The second was for an order adjudging that the sum of $7488 was due the wife from the husband for unpaid instalments of alimony, and the third was to compel the husband to pay counsel fees and costs to the solicitors of the wife incurred in connection with the proceedings mentioned. These petitions were heard together. After consideration of the testimony and the argument of counsel, the court decreed, by four separate orders:
First: On the petition of October 5th, 1937, for an increase in the amount of alimony awarded by the decree of May 23rd, 1925, the court reduced the alimony from twelve dollars a week to four dollars a week, accounting from October 5th, 1937, the date of the filing of the petition.
Second: On the petition in reference to the unpaid instalments of alimony the wife was decreed the sum of $3785.14; which was computed, at the rate of twelve dollars a week, for the period from September 11th, 1931, the date of the conveyance of the trustee, to October 5th, 1937, the date of the petition praying for a modification of the decree of May 23rd, 1925. *495
Third: On the petition for counsel fees for the solicitors of the wife in the appeal in Winkel v. Winkel,
Fourth: On the petition for further counsel fees on account of services rendered since the mandate of the appellate court, a fee of fifty dollars and the costs were directed to be paid by the defendant.
After these orders were entered, the husband appealed in one order from every one of the four decrees. The wife took separate appeals from the first three orders. She then filed a petition to have the husband pay the costs of the stenographer's transcript of the record, of the printing of the record and of her brief, and of a reasonable fee for the services of her solicitors on appeal. The court passed an order fixing the fee at $150, and requiring it and the reasonable cost of the transcript of the record and its printing, and that of her counsels' brief, to be paid by the defendant, subject to the approval by the court of the amounts of these costs. Both parties entered separate appeals from this last order.
Accordingly, there are six appeals entered on this record. In Nos. 8, 9, 10 there are cross appeals. In No. 11 the husband appeals, and Nos. 12 and 13 are cross appeals.
As a result of the recent decision of this court on the former appeal in this cause, the questions on these appeals are narrowed to a review of the orders made, after the remand, in reference (1) to the allowance of alimony for the period between September 11th, 1931, and October 5th, 1937, at the weekly rate of twelve dollars; (2) to the allowance, after the last named date, of alimony at the reduced rate of four dollars a week; and (3) to the several allowances of fees to the wife's solicitors. It will be convenient to consider first the question on the awards of alimony.
First: In its orders the chancery court selected the date of the filing of the petition of the wife for an increase *496
in alimony, instead of the date of its decree, as the time for the reduction in the original award of alimony to begin. In this choice the court is within its authority. The original decree of May 23rd, 1925, for alimony or maintenance was in full effect at the institution of the proceedings which give rise to the pending appeal. The amount of twelve dollars a week for her support and maintenance was awarded "pending further order of the court," which was a reservation of the right and power of the court to change or stop the allowance whenever the known circumstances of the parties would give occasion for such equitable redress.Wygodsky v. Wygodsky,
Moreover, the time when such modification may become effective was in the discretion of the chancellor. Commonly, the decree for alimony or maintenance is effective from the time of its passage, but the court may fix the time at which the alimony is to begin at either before, with, or after the date of the decree. The adaptability, according to the circumstances, of the time when payment of the periodical amount of a continuing alimony or maintenance is to begin is a particularly serviceable procedural discretion in the event of an increase or decrease in the instalment to be paid. If the faculties of the husband are improved, the allowance to the wife ought to be increased, and if they decline, the wife's allowance should be reduced.DeBlaquiere v. DeBlaquiere, 3 Hag. Ecc. 322, 329, 162 Eng. Repr. 1173, 1175; Robinson v. Robinson, 2 Lee Ecc. 593, 161 Eng. Repr. 451; Kerr v. Kerr, (1897) 2 Q.B. Div. 439, 443; Coxv. Cox, 3 Add. Ecc. 276, 162 Eng. Repr. 480; Bishop on Marriageand Divorce, vol. 2, secs. 869-877; Tangye v. Tangye, L.R. (1914) Probate 201, 208; 10 Halsbury's Laws of England, 2nd Ed., sec. 1267, p. 797. *497
In the instant case, the wife applied on October 5th, 1937, for an increase in the amount of alimony or maintenance. The decree, which denied any increase, but reduced the weekly payment to four dollars, was not passed until September 2d 1939. It made the reduction effective as of October 5th, 1937, subject to the further order of the court. The wife had no fixed right in the alimony decreed on May 23rd, 1925, and the payment of the specific amount awarded was limited to the period of the pendency of the award of that date, which was constantly subject to modification.
So, the continuation of the payments pursuant to the original decree became immediately subject, on the filing of the petition of October 5th, 1937, to the ultimate determination of the court on the issue thus presented. The modification asked was referable to the date of the filing of this petition, and, therefore, any change effective as of that, or a later, date cannot be said to be retrospective. From the time of the filing of the petition for modification the amount payable thereafter was conditional on the decision to be made on the issue made by that petition. Hence, in the reduction of the periodical payment from this date, the court interfered with no right of the wife, but acted within its judicial discretion in limiting the pendency of the former provision for alimony or maintenance to October 5th, 1937.DeBlaquiere v. DeBlaquiere, 3 Hag. Ecc. 322, 331, 332, 162 Eng. Repr. 1173, 1176.
Having found that the effective date for the modification of a decree for alimony need not necessarily coincide with the date of the decree or order to that effect, the remaining questions for consideration relate to what modifications of a decree may be made with respect to periodical payments of alimony which are past due and those which are to become due. In giving the answers to this twofold inquiry, it is necessary to keep in mind the essential requisites and nature of alimony.
Alimony, whether temporary or permanent, is not a debt.Roberts v. Roberts,
In the matter of alimony, the chancellor, however, must act in the present in reference to a variable ability to support. Thus, if the husband have neither tangible property, nor income nor earning capacity, there is no basis for an allowance of alimony, and none may be made. Feigley v. Feigley,
As pointed out by Bishop in his work, this doctrine of relative adjustment to contemporaneous faculties rests upon the mutual rights and obligations of the parties, which they assumed for the duration of their joint lives, as well with reference to their children as to themselves. A responsibility of the husband is the support and maintenance of his wife and children in the measure of his ability and station in life. The duties and rights in these respects are subject to changes which are not foreseeable, and so cannot be adequately anticipated and taken care of by any judicial decree. So if, by his fault, the marriage ties are breached and the parties are thereby separated, the husband's conduct does not lessen his obligation to provide for the support and maintenance of his wife, to which she was entitled while in cohabitation. The obligation of support is continuous and the husband's marital delinquency may not earlier terminate the obligation. The obligation must be correspondingly fulfilled out of the husband's contemporaneous faculties, whether in wealth, in moderate means, or in poverty. Within this gamut of fortune the wife shares. From the nature of affairs, change in tangible property and in income and in earnings may occur as well after as before the separation of the spouses.
Although the power to modify provisions of a decree in respect of future instalments of alimony is well settled in this state, and by the weight of authority of other jurisdictions, there is notwithstanding a conflict *500 of opinion in reference to overdue instalments. In a number of jurisdictions the view prevails that instalments of alimony become vested as they come due, and hence there is no power in the court to modify the decree in this respect. 17 AmericanJuris, sec. 648, pp. 494-495.
The reasons in support of a modification of future instalments of alimony are only less in degree in reference to the instalments which have accrued due. There may have been error in the amount fixed because of mistake in the husband's faculties. The capacity to pay may be materially reduced either by unforeseen diminution in estate or by failure in earnings through incapacity, loss of position or of employment. When the failure to pay is attributable to such a cause, it is equitable to make a conformable modification in alimony which has accrued due. To deny a court of chancery such a power prevents the rectification of an obligation which would not have been created had the chancellor been able to anticipate the later faculties of the husband, and defeats the rule that the maintenance afforded the separated wife through alimony is not to be greater than what she would have enjoyed in cohabitation.
On reason the power of the court of equity to adapt its remedial relief to existing conditions and circumstances should not be curtailed. The flexible quality of its procedure is oppressively limited by the denial of redress for the chancellor's unforeseeably mistaken estimate of future faculties which the husband, without fault on his part, has not possessed in such a measure as to enable him to comply with the payment of the alimony imposed. Nor is it believed that there is to be found in this jurisdiction a rejection by the appellate court of this humane and equitable relief.
After a careful review and consideration of the decisions, the settled conclusion of this court is stated in the opinion written for the court by Judge Offutt in Knabe v. Knabe,
In Braecklein v. Braecklein, 1920,
The later case of Clarke v. Clarke, 1926,
The rule exemplified in Clarke v. Clarke, supra, depends upon the subsistence of the marriage status, and, so, does not apply where the marriage relation is terminated by a divorce a vinculomatrimonii, unless there *503
is a provision made for the payment of alimony. Staub v. Staub,
As thus limited, the rule has been given, in common practice in the chancelleries of this state, retrospective effect upon past due instalments of periodical payments of alimony, whetherpendente lite or permanent. The practice here is founded on the practice of the ecclesiastical courts of England, whence our procedure largely came. DeBlaquiere v. DeBlaquiere, (1830) 3 Hag. Ecc. 322, 162 Eng. Reprint, 1173; Saunders v. Saunders, 1 Sw. Tr. 72, 164 Eng. Reprint, 634; Kerr v. Kerr, (1897) 2 Q.B. Div. 439, 443; Covell v. Covell, (1872), L.R. 2 P. D. 411, 413, 414.
The principle has been implicitly accepted by the court, but found not controlling on the facts, in the appeals of Dickey v.Dickey,
Marshall v. Marshall, supra, is particularly in point. In that case the allowance provided in the decree was for the sum of fifty dollars a month, to be paid by the husband to the wife, until her death or marriage, for the support of herself and the care, education and maintenance of their children, and, upon her death or marriage, *504
then over to children until death or marriage. The payments were made for several years and then discontinued because of the husband's inability to pay. Some years later the husband became entitled to a valuable interest in personalty in the course of distribution in the City of Baltimore. A large amount in the aggregate of the monthly payments was due the wife, who obtained an order, which fixed the amount in arrears and authorized an attachment and execution against the husband's interest. The chancellor later rescinded the order and disallowed the wife's claim for the payments in arrears, and relieved the defendant from further liability to make the payments formerly decreed, but reserved the right to require the resumption of the payments in the event of a change in the circumstances of the parties. In so holding, the chancellor proceeded upon the theory that the payments were alimony which could be modified by a court of equity from time to time. Thus on appeal the question turned upon the nature of the payments. If the decree were for alimony, the modification made by the chancellor was permissible. If the payments decreed were not alimony, the ruling of the chancellor was in error. The court there quoted from Dickey v. Dickey,
A more recent decision, Fairbank v. Fairbank,
From a review of the decisions of this court, it does appear that the effect of its decisions is to support the power in the court to make a modification of a decree for alimony with respect to the unpaid instalments of past due alimony. If the contrary were held, it would be not only in conflict with sound practice, but also with the broad language of this court in a number of cases, and particularly with the theory upon which Marshall v.Marshall, supra, and Fairbank v. Fairbank, supra, were decided. In the examination of the decisions of this court, no decisions have been found in conflict with the views here expressed.
In Marshall v. Marshall, supra, the payments in arrears were held not to be alimony and so were excluded from the operation of the rule which would have permitted retroactive modification of the prescribed payments, if they had been alimony and not payments made pursuant to a contract of the parties, whose terms had *506
been approved by the court and embodied in the decree, 164 Md. pages 112, 114,
Another point decided was that continuing periodical instalment payments of money under a decree were not barred by limitations as to those which had severally become due within the twelve years next preceding the proceedings for enforcement. The court did not hold that the agreed periodical payment must be paid if without the statute of limitations, but carefully confined the application of the statute to "the amount of the unpaid instalments, and the existence of the conditions upon which its enforcement is dependent" as ascertained by an appropriate proceeding.
The rule of limitations stated in Marshall v. Marshall,supra, would seem to apply to the periodical instalments of alimony under a decree, to the extent that when such instalments separately became due the statute of limitations of twelve years began respectively to run severally as a bar to the enforcement of every such instalment, if it had accrued due and remained undischarged. In Kalben v. King,
The decision in Rosenberg v. Rosenberg, 1927,
Both Rosenberg v. Rosenberg, supra, and Sistare v. Sistare,supra, are, also, authority for the rule that the finality of a decree for alimony depends upon the law of its rendition. If not final there, it is not final elsewhere. Should the decree be subject to modification it is not a final decree. As the decree in the instant case is subject to modification, it lacks the necessary quality of *508
finality, and the cases last cited, which were on a different record and had a different problem, have no application. Supra:Yarborough v. Yarborough,
In Audubon v. Shufeldt,
The court has not ignored the weight to be accorded the decisions of other jurisdictions to the effect that instalments of alimony become vested when they become due, and the court has no power to modify the decree with reference to them. Without attempting to analyze and distinguish these cases, it is sufficient to make reference to where many of these decisions may conveniently be found, and to state that this court is not convinced that the practice and precedents of this state should be discarded. Supra. See 94 A.L.R. 332; Gloth v. Gloth,
With the principles ascertained and in mind, the court, thus advised and governed, has weighed the testimony and finds no sufficient basis for any modification of the decree of the court in reducing the alimony to four dollars a week from and after October 5th, 1937. Nor does the court disagree with the confirmation by the equity court of the rate of twelve dollars a week before October *509 5th, 1937. This was the periodical payment specified in the original decree of May 23rd, 1925. At no time has the husband paid this instalment or any part of it to the wife. By reason of her refusal to comply with the condition of this decree to convey certain property to her husband, her right to alimony was suspended by the decree until September 14th, 1931. From this date the installments accrued due and accumulated, and although unpaid, no action appears to have been taken until September 11th, 1933, when the wife addressed a petition to the court. She stated her husband's default but that, until shortly before this petition, he had paid her twenty-five dollars weekly as rental for premises which belonged to her and on which he had conducted a filling station. She recited that he had ceased to pay the rent, and that she was thereby left without means of support. Her prayer was for an increase in the amount of alimony to be paid. The husband resisted her right to receive alimony on the ground of her failure to execute the grant to him as prescribed in the original decree of May 23rd, 1925. Failing in this by the refusal of the court, on May 7th, 1934, to dismiss the wife's petition, the husband filed a "cross-bill" for divorce on May 21st, 1934. He dismissed his bill on June 2d 1934, and on the same day filed a new "cross-bill" which was disposed of by dismissal by the court on August 21st, 1935. It was not until December 31st, 1935, that the court, after the taking of testimony, refused to modify its decree by increasing the amount of alimony, on the ground that the husband's faculties were not shown to be sufficient. The award of twelve dollars a week remained undisturbed, but the husband's default continued, notwithstanding the repeated efforts of the wife, until that of October 5th, 1937, became the final petition, and the one, with the proceedings thereunder, which is now before this court.
The husband has consistently refused to obey the decree of the court and has successfully defeated in the past the efforts of the wife to obtain his compliance. His *510
attitude entitles him to no special consideration, and his contumacy precludes him from successfully seeking an abatement for his default in payment which occurred before October 5th, 1937, as it does not clearly and certainly appear that his lessened faculties, rather than recalcitrancy, were the cause of his uninterrupted refusal to pay a single instalment, or even a part of it, to his wife. See Skirven v. Skirven,
Second. The solicitors for the wife are entitled to reasonable fees for their services at the expense of the husband. McCleesv. McClees,
The cause must be remanded for the passage of such orders as may be necessary to carry into effect the views here expressed.
Order of September 2nd, 1939, directing Bernard A. Winkel topay Marian I. Winkel the sum of four dollars a week as permanentalimony from October 5th, 1937, is affirmed.
Order of September 2nd, 1939, passed upon the order nisi ofApril 13th, 1939, is affirmed in part and reversed in part,so that the order directing Bernard A. Winkel to pay $250 ascompensation to Charles S. Hayden and Elmer Carleton Smith,solicitors of Marian I. Winkel, may be reduced to the payment ofseventy-five dollars.
Order of September 2nd, 1939, decreeing that the arrearsof alimony due and payable by Bernard A. Winkel to Marian I.Winkel is the sum of $3785.14, accounting from September 11th, 1931, *512 to October 5th, 1937, reversed, and cause remanded so thatthe arrears of alimony due and payable shall be computed at therate of twelve dollars a week accounting from September 11th, 1933, to October 5th, 1937, without interest.
Order of September 2nd, 1939, directing that Bernard A.Winkel pay the sum of fifty dollars to Charles S. Hayden andElmer Carleton Smith, solicitors, as additional fees, affirmed.
Order of November 14th, 1939, affirmed in part andreversed in part, so that the order directing Bernard A. Winkelto pay the sum of $150 to Charles S. Hayden and Elmer CarletonSmith, solicitors, as additional fees for the pending appeals bereduced to the payment of the sum of seventy-five dollars.
Cause remanded for further proceedings in conformity with thisopinion. The costs in all appeals to be paid by Bernard A.Winkel.