Fairbank v. Fairbank

• Decision Date: 01 November 1935
• Docket Number: 9.
• Parties: FAIRBANK v. FAIRBANK.
• Court: Maryland Court of Appeals

181 A. 233

169 Md. 212

FAIRBANK v. FAIRBANK.

No. 9.

Court of Appeals of Maryland

November 1, 1935

Appeal from Circuit Court of Baltimore City; Joseph N. Ulman, Judge.

Suit by W. Roland Fairbank against Nettie G. Fairbank. From an adverse decree, defendant appeals.

Reversed and remanded.

Argued before BOND, C.J., and URNER, PARKE, SLOAN, MITCHELL, SHEHAN and JOHNSON, JJ.

Arthur R. Padgett, of Baltimore, for appellant.

Louis S. Ashman, of Baltimore, for appellee.

MITCHELL Judge.

The appeal in this case is from an order of the circuit court of Baltimore City, modifying a former decree of that court which awarded the appellant the sum of $7 per week as permanent alimony.

The order appealed from reduces the amount of permanent alimony from the original award, to the sum of $4 per month, and further provides that all alimony arrearages as of the date of the modifying decree be "held in abeyance," with the usual reservation that the changes effected by the modifying order be, and remain, subject to the further order of the court.

The parties to this suit were married on August 31, 1921, and resided together until the 6th day of March, 1929.

In July, 1929, the appellant filed a bill for divorce a mensa et thoro, which was later amended to a bill for alimony only and it was upon the latter amended bill that the lower court on October 18, 1929, decreed the original weekly allowance.

On November 19, 1931, the appellee filed his petition to be relieved from the further payment of alimony, which petition was heard and dismissed, without prejudice, by the chancellor, on December 23, 1931.

Again, on January 12, 1932, the appellee filed a similar petition, which, upon a hearing, was dismissed, without prejudice, on May 23, 1932.

Finally, on February 7, 1935, the appellee filed his third petition to be discharged from the then existing order for the payment of alimony, and the decree of the court upon this latter petition, as heretofore indicated, forms the basis of this appeal.

In the third petition, the appellee for the first time, as one of the reasons for his inability to comply with the terms of the original decree against him, alleges that he is suffering from "a cardiac arrythmia (heart disease); is unable to engage in sustained work, and requires and is receiving medical treatment."

He further alleges: "That the Petitioner always was employed by his father, a dairy farmer; that for a long time the farm has been operated at a heavy loss, thereby forcing his father to borrow monies on his life insurance policy and otherwise, and to discontinue the payment of any regular salary to the Petitioner."

The record establishes the fact that the appellee is now about thirty-four years of age; his wife, the appellant, being six years his senior. It is further shown that there are no children involved in the controversy, and that neither spouse is possessed of property.

At the time of the passage of the original decree, the appellant was employed as an assistant in a dental office at a salary of $15 per week. She is still employed in the same capacity, but instead of receiving the above weekly payment in cash, she now resides with the family of her employer and receives as compensation her board, lodging, and laundry and the sum of $2 in cash per week.

The record also shows that at the time of the passage of the original decree, the appellee was in the same employment in which he is now engaged, and his answer to the original bill admits that he was then receiving a weekly salary of $25. As heretofore shown, he continues in the employ of his father without receiving any regular salary.

In substantiation of the allegation of the present condition of his health, the appellee produced a doctor of twenty-two years' experience, who testified that he first treated the appellee in May, 1932, for a stomach condition and generally run-down state; that he has since treated his patient at intervals; and that in January, 1935, the appellee developed the heart condition above mentioned, which "may or may not be permanent."

Upon cross-examination the doctor further testified as follows:

"Q. Would this heart condition prevent him from doing light work such as making collections and keeping books, and things of that sort? A. If he did not do any laborious work a heart condition like that--that is his condition would not, but during the periods when he has those spells it would prevent him from doing anything in my judgment. The condition that he was in during the month of January, he was really in my judgment not fit to do anything, though I think he did do part time.

Q. A condition like that does not cover any long period of time, does it? A. At some times covers a life time.

Q. I mean where he cannot work at all? A. No, he is not in a condition where he cannot work at all but he is in a condition where he cannot do hard continuous steady work."

The appellee on his own behalf testifies that his father is the owner of a farm of one hundred acres, a herd of fifty cows, and operates a dairy. He formerly served milk routes, collected from customers, and did general farmwork. For the past fourteen months, however, his activities have been clerical rather than laborious, in that he is now engaged in attending to collections due his father, assisting in keeping the books of the business, and at times signing checks and attending to the general management of the same. However, for this service, as we have observed, he receives no monetary consideration, although it is shown that the father employs six other men in the conduct of his farm and dairy business, who, as far as the record goes, may be presumed to be paid living wages. At least, such is a reasonable presumption, as otherwise the six extra employees would not continue in their present employ.

We have reviewed the facts revealed by the record in perhaps greater detail than necessary, because of the peculiar situation they present. It is shown that the appellant, beyond her own personal efforts, is without means of support, and that her annual income, exclusive of the equivalent of her board, lodging, and laundry bill, is the sum of $104. And it will be conceded that such a sum is inadequate to meet her ordinary and necessary expenses for clothing and provide for her medical attention when, if, and as required.

On the other hand, the appellee, though suffering from a partial physical disability, is employed in the same business in which he was engaged at the time of the passage of the original decree, and according to his own testimony is rendering important clerical and executive service in the conduct of his father's business, without compensation, at the present time, other than his own individual support.

The sole questions now before us, therefore, are:

(a) The propriety of the chancellor in modifying the original decree, in so far as the same affects pending alimony in the premises; and

(b) In holding, in abeyance, all alimony arrearages existing as of the date of the passage of the modifying decree.

Ordinarily, alimony is allowed as an incident to proceedings for a legal separation or divorce, but in this state the power of the courts to award it as being inherent in equity jurisdiction has been recognized and exercised since the case of Galwith v. Galwith, 4 Har. & McH. 477, decided in 1689, although it was not until the year 1841 that the authority to decree divorces was lodged in said courts. Jamison v. Jamison, 4 Md. Ch. 289; Stewart v. Stewart, 105 Md. 297, 66 A. 16; Taylor v. Taylor, 108 Md. 129, 69 A. 632; Outlaw v. Outlaw, 118 Md. 498, 84 A. 383, and 2 Am. & Eng. Ency. of Law (2d Ed.) 92.

Under any circumstance "alimony" is an allowance to the wife in recognition of the husband's common-law liability to support her. Or, as tersely stated by Judge Offutt in the case of Roberts v. Roberts, 160 Md. 513, 521, 154 A 95, 98: "This court has had occasion in several recent cases to consider and restate the law controlling the allowance of alimony in actions for divorce or permanent alimony, and in each of these cases it affirmed and emphasized the principle that alimony is an allowance of money payable at stated periods by the husband to the wife for her support during their joint lives so long as they live apart, Spear v. Spear, 158 Md. 672, 149 A. 468; Slacum...