Bowis v. Bowis, 415

• Full Citation: Bowis v. Bowis, 267 A.2d 84, 259 Md. 41 (Md. 1970)
• Decision Date: 10 July 1970
• Citation: 267 A.2d 84,259 Md. 41
• Docket Number: No. 415,415
• Parties: Richard A. BOWIS v. Barbara G. BOWIS.
• Court: Maryland Court of Appeals

Page 41

259 Md. 41

267 A.2d 84

Richard A. BOWIS v. Barbara G. BOWIS.

No. 415.

Court of Appeals of Maryland.

July 10, 1970.

Stanley R. Jacobs, Silver Spring, for appellant.

Stanley B. Frosh, Bethesda, for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

The chancellor granted the wife, appellee, a divorce a vinculo matrimonii on the grounds of adultery. Although the husband, appellant, denied the charges in his answer, he offered no defense at the hearing. The chancellor also awarded the wife custody of the three minor children, a daughter aged 12 and two sons aged 9 and 8 respectively. The wife was awarded alimony of $150 per month and $300 per month for the support and maintenance of the children. The appellant was also required to return to the wife the full value of securities (approximately $7500) which had been a gift to the wife from her family, plus the sum of $475, as reimbursement for certain expenditures made out of the brokerage account of which the securities were a part. The wife was also allowed counsel fees in the amount of $1500. The husband appeals, contending that the awards for alimony, child support and counsel fees are excessive and that the chancellor erred in awarding the wife the full value of the jointly held stock account and the cash reimbursement for expenditures from the stock account. We affirm the decree of the chancellor, save for the award of counsel fee which we believe should be reduced to $750.

The record reveals that the wife had part time employment, earning approximately $2000 per year. The husband's earnings as a stock broker fluctuated; however, his gross earnings for the first six months of 1969 amounted to $5800 and the court below construed this as supporting evidence for an annual gross income of $11,600.

The chancellor further made a finding of fact that the husband had been contributing on an average of $800 per month as support and maintenance for the wife and family since October, 1968, and that the needs of the wife and children, consistent with the standard of living formerly enjoyed by the parties prior to the husband's leaving, are in excess of $900 per month. This is obviously beyond the present monthly gross earnings of the husband. It would also appear that for some time the family had been living beyond the financial means of the husband. However, on the basis of the standard of living to which the family had become accustomed and the current income of the husband, we cannot quarrel with the chancellor's determination that the wife and the children should receive $450 per month in alimony and support.

Various formulae have been recommended as guidelines for computing that portion of a husband's net income which should be awarded to the wife for alimony and as support and maintenance for children, such as those found in The Section of Family Law of the American Bar Association, 1964-65 Session, pgs. 76-86. Likewise, one may gather from reading Schuman v. Schuman, 252 Md. 13, 17, 248 A.2d 876 (1969); Hall v. Hall, 238 Md. 191, 197, 208 A.2d 593 (1965); and Bradshaw v. Bradshaw, 189 Md. 322, 326, 55 A.2d 719 (1947), that this Court followed an approximate one-third rule of net income in awarding alimony where support for children was not involved. However, this Court has repeatedly emphasized the fact that there are no pat rules or statutory mandates to be followed in making awards for alimony and support and maintenance. Indeed, one is hardpressed to find any area of law where the need is more compelling to tailor the remedy to the facts of each particular case. This was well stated by Judge McWilliams in Burton v. Burton, 253 Md. 233, 252 A.2d 472 (1969):

'The reports of our decisions abound in shopworn expressions of the principles of law which are applicable here. What we said in Waters v. Waters, 191 Md. 436, 440-441, 62 A.2d 250, 252 (1948), has been repeated and paraphrased in most of the cases which followed: (See numerous Maryland decisions cited in footnote 1, 253 Md. pg. 236, 252 A.2d 472.)

'Although, in this case, the husband has been found guilty of adultery, the awarding of alimony is never a punitive measure. In determining an award of alimony and whether 'the wife's income is sufficient to care for her needs', the court should consider the husband's wealth and earning capacity, the station in life of the parties, age, physical condition, the ability to work, the length of time the parties have lived together, the circumstances leading up to the divorce, and the fault which destroyed the home. Timanus v. Timanus, 178 Md. 640, 642, 643, 16 A.2d 918; Dougherty v. Dougherty, 187 Md. 21, 48 A.2d 451, 457; Bradshaw v. Bradshaw, 189 Md. 322, 326, 55 A.2d 719, 721. Also, of course, to be taken into consideration are the assets and income of the wife. Hood v. Hood, supra, 138 Md. (355) page 360, 113 A. 895, 15 A.L.R. 774. In making such an award the court can only use judicial discretion. Of course, there is no special statute or rule governing this discretion. It must be exercised to the necessary end of awarding justice and based upon reason and law.'

The court has applied the same general principles to those cases wherein support and maintenance of children is coupled with an award for alimony. See Abrams v. Abrams, 246 Md. 588, 594, 229 A.2d 103 (1967); Williams v. Williams, 238 Md. 636, 637, 210 A.2d 159 (1965); Chalkley v. Chalkley, 240 Md. 743, 744, 215 A.2d 807 (1967); Williams v. Williams, 238 Md. 431, 434, 140 A.2d 892 (1958); Donigan v. Donigan, 208 Md. 511, 519, 521, 119 A.2d 430 (1956).

We also affirm the chancellor in his conclusion that the husband had no interest in the jointly held brokerage account. He found that there had been no intention on the part...