Buckner v. Buckner

• Decision Date: 12 June 1912
• Citation: 84 A. 471,118 Md. 263
• Parties: BUCKNER v. BUCKNER.
• Court: Maryland Court of Appeals

84 A. 471

118 Md. 263

BUCKNER v. BUCKNER.

Court of Appeals of Maryland

June 12, 1912

Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump Judge.

Suit by Louis Buckner against Bella F. Buckner. From an order requiring plaintiff to pay to defendant counsel fees and expenses on appeal, plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS, URNER and STOCKBRIDGE, JJ.

Louis Hollander and David Ash, both of Baltimore, for appellant. Clifton S. Brown, of Baltimore, for appellee.

BURKE J.

The appellant filed a bill against the appellee in the circuit court No. 2 of Baltimore city for a divorce "a mensa et thoro" upon the ground of abandonment. The appellee filed a cross-bill, in which she also asked for a divorce a mensa, alimony, and counsel fee. Answers and replications were filed, and much testimony was taken by the respective parties in support of their contentions. The court, on January 2, 1912, passed a decree dismissing the appellant's bill, and allowing permanent alimony to the appellee of $10 per week, accounting from the 27th of November, 1911, and it further decreed that the appellant should pay the sum of $250 as counsel fees incurred by her in the suit, in addition to the sum of $100 previously allowed her as a counsel fee. From this decree both parties appealed to this court, which reversed the decree, and held that the appellant was entitled to a divorce a mensa, and that the appellee was living apart from her husband without sufficient cause, and therefore was not entitled to alimony.

After the transcript of the record in these appeals had been transmitted to this court, the appellee filed a petition in the case, stating that the plaintiff had appealed from the decree, and that thereafter she had entered a cross-appeal. She further stated that she must engage counsel to represent her in these appeals, and that she would be put to other expense in connection with the appeal, and that she was without funds to pay counsel and to meet these expenses. Attached to the petition was a certificate of two members of the bar, favorably known to this court, that in their opinion, "from the nature of the proceedings and the questions raised on appeal, having due regard to the financial responsibility of the husband," a fee of $500 would be reasonable. The court passed an order requiring the husband to pay to his wife the sum of $350 as counsel fee in connection with the appeal, and the further sum of $50 for printing her brief, any excess to be accounted for by the wife to the husband. The appeal before us is taken by the husband from that order.

The fee of $350 previously allowed, and which appears to have been paid, was allowed as counsel fees to the wife in the case then pending in the lower court, and was not intended to include compensation to counsel for services to the wife on appeal to this court, because no appeal was then pending, and it was not known that one would be taken. The fee then allowed was adjudged by this court in the first appeal to have been "proper and adequate under all the circumstances of the case."

The principal grounds urged for the reversal of the order appealed from are thus stated in the appellant's brief "It is, or should have been, apparent to the court that the wife, and not the husband, was at fault. Especially should this have been apparent in the light of the attempted reconciliation and its obstinate refusal. The wife had failed either to sustain her answer, or her cross-bill, and she had caused the husband unconscionably to incur heavy expense. It was the duty of her solicitors, under the facts of the case even as alleged in her cross-bill, to have advised her against filing an answer, which they are charged with a knowledge of knowing that she would be unable to sustain; and it was their duty to advise her against filing a cross-bill, the allegations of which, if true, were insufficient to entitle her to the relief prayed; and it was especially the duty of her solicitors, with a full knowledge of the testimony taken in said cases, and with a full knowledge of the many offers of reconciliation, and with a full knowledge of the offer of...