Hood v. Hood

• Decision Date: 08 April 1921
• Docket Number: 52.
• Parties: HOOD v. HOOD.
• Court: Maryland Court of Appeals

113 A. 895

138 Md. 355

HOOD v. HOOD.

No. 52.

Court of Appeals of Maryland

April 8, 1921

Appeal from Circuit Court of Baltimore City; Robert F. Stanton Judge.

Bill by Ethel Painter Hood against John Mifflin Hood. From an order that no alimony pendente lite be allowed, but that petition therefor be retained to enable the court to consider any changes in the circumstances, plaintiff appeals. Decree affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Wm Pinkney Whyte, Jr., and Isaac Lobe Straus, both of Baltimore for appellant.

Albert E. Donaldson and Arthur W. Machen, Jr., both of Baltimore (Hershey, Machen, Donaldson & Williams, of Baltimore, on the brief), for appellee.

BOYD C.J.

The appellant filed a bill on September 28, 1920, against the appellee for a divorce a mensa et thoro, alleging cruelty of treatment and abandonment. It alleges that they have three children living, one daughter 12 years and another 7 years, and a son 4 years of age. It prays for a divorce a mensa, that the plaintiff be awarded the custody of their children, for permanent alimony, and for alimony pendente lite for the support and maintenance of herself and the infant children, for counsel fees and suit money. There is also a prayer for general relief.

On the 29th of September the court passed an order requiring the defendant to pay to the plaintiff $150 per week during the continuance of the suit, as alimony pendente lite for herself and the minor children named in the bill, unless cause to the contrary be shown. An answer was filed to that order, in which the defendant protested that the charges against him were wholly without foundation in fact, and alleging that the plaintiff owns and possesses in her own right an estate of a present value of approximately $2,000,000, yielding an assured annual income of more than $85,000, with possibilities of considerable increase in the future and that the property owned by him is insignificant in amount in comparison with the separate estate of the plaintiff, and that his income is very much less than hers.

Without deeming it necessary to state at length the testimony in the case, which was taken in open court on the matter of alimony pendente lite, it is sufficient to say that it shows that the plaintiff and defendant were living at Roland Park, in Baltimore City, in a house owned jointly by them, and the plaintiff claimed to have owned the greater part of the furniture. On the 10th of September, 1920, the plaintiff left the home and took with her the three children, claiming to have been compelled to leave on account of the treatment of the defendant, which he denied. She went to the Belvidere Hotel, in Baltimore, was there when she filed this bill, and was living at great expense. She alleged in her bill that she was about to go to Atlantic City with her children, for her own and their health, and that the defendant stated that he hoped she would never again darken the door of their home, and the allegation is that defendant had abandoned her not only by telling her that, but his treatment compelled her to leave. While he was away on business his wife took all of the furniture out of the house at Roland Park, excepting a few articles, placed as much as she could in a house she rented at Guilford, and stored the rest. He said he had made a contract to refurnish the house, and his mother was living with him; that he would be glad to have the children, and would furnish what was necessary for their maintenance, education, and support, if they returned to his home. The evidence showed that the plaintiff had an annual income of $88,000, and the defendant had a salary of $30,000 and $6,000 of other income. The defendant denied in his answer the charges in the bill, but the merits of the case have not yet been inquired into. At the hearing on the matter of alimony pendente lite on December 13, the plaintiff and defendant testified in open court, and were the only witnesses examined, and on the 22d of that month an order was passed, reciting that the income of the plaintiff is $88,000 a year, and ordering "that no alimony pendente lite be allowed to the plaintiff at this time, but that the petition of the plaintiff for alimony pendente lite be retained to enable the court to consider any change in the circumstances of the plaintiff which may develop before the case can be heard and determined on its merits." From that order this appeal was taken.

The question to be determined is whether, under the circumstances, the lower court was right in refusing to allow alimony pendente lite, there being nothing said in the order appealed from about counsel fees and suit money. It will, of course, be conceded that ordinarily the primary duty of supporting infant children is upon the father. That is "correlative to his right to the custody, control, and earnings of his minor child." 20 R. C. L. 622. That he is under legal obligation to support his wife is as true now as it was at common law, except as modified by statutes or under special circumstances, notwithstanding the many and broad rights conferred upon her by statute. The act of 1898, c. 457, together with other acts in force in this state, practically place married women in the same position as if they were unmarried, so far as their property and contractual rights are concerned; but section 21 of article 45, being the article on "Husband and Wife." provides that "nothing in this article shall be construed to relieve the husband from liability for the debts, contracts or engagements which the wife may incur or enter into upon the credit of her husband or as his agent or for necessaries for herself or for his or their children, but as to all such cases his liability shall be or continue as at common law," although in section 5 of that article it is provided, "nor shall any husband be liable upon any contract made by his wife in her own name and upon her own responsibility." These two sections are considered and explained in Noel v. O'Neill, 128 Md. 202, 97 A. 513. There is, therefore, not much significance, in passing on the question now before us, in the fact that primarily it is the duty of the father to support the infant children of his wife and himself; for ordinarily an equal duty rests upon him to support his wife and if he without just cause deserts or willfully neglects to provide for the support and maintenance of his wife or minor child he is deemed guilty of a misdemeanor, and upon conviction may be punished by fine or imprisonment in the Maryland house of correction for not more than a year, or both (section 75, art. 27).

That statute, as originally passed, was referred to in Alvey v. Hartwig, 106 Md. 254, 67 A. 132, 11 L. R. A. (N. S.) 678, 14 Ann. Cas. 250, where the father was held to be primarily liable for the support of his infant children, although a divorce had been granted to his wife and the custody of the children awarded to her, in a suit against him as a nonresident, in which he was not summoned.

It is difficult to understand how the defendant could be held liable for alimony pendente lite for the benefit of his infant children if he could not be for the benefit of his wife. But let us see just when alimony pendente lite is allowed and when it is not, in so far as the facts of this case call upon us to do so. The definition of alimony is not always given in precisely the same language, but there is no material difference between the authorities, unless possibly in some instances as result of statutes. In Bouvier's Law Dictionary it is: "The allowance which a husband by order of court pays to his wife, living separate from him, for her maintenance." In a leading case of Wallingsford v. Wallingsford, 6 Har. & J. 485, it is: "Alimony is a maintenance afforded to the wife where the husband refuse *** to give it, or where from his improper conduct compels her to separate from him. It is *** a provision for her support, to continue during their joint lives, or so long as they live separate." In 1 R. C. L. 864: "Alimony, which signifies literally nourishment or sustenance, is the allowance which a husband may be compelled to pay to his wife for her maintenance when she is living apart from him, or has been divorced. Like the alimentum of the civil law, from which the word was evidently derived, it has for its sole object the provision of food, clothing, habitation, and other necessaries for the support of the wife." The general rule is that the wife is a privileged suitor in divorce cases, and, if she is "without an income competent for her support and the maintenance of the suit," living separated from her husband, the court will allow her alimony pendente lite and money to carry on her suit without inquiring into the merits. Daiger v. Daiger, 2 Md. Ch. 335; Coles v. Coles, 2 Md. Ch. 341, 346; Tayman v. Tayman, 2 Md. Ch. 393, 397; McCurley v. McCurley, 60 Md. 185, 189, 45 Am. Rep. 717; Buckner v. Buckner, 118 Md. 263, 266, 84 A. 471; Mulhall v. Mulhall, 120 Md. 22, 26, 87 A. 490; Crane v. Crane, 128 Md. 214, 220, 97 A. 535; and many other cases could be cited.

But it is equally well established that when the wife has ample means of her own for her support and maintenance, and to enable her to prosecute or defend her suit, she is not allowed alimony pendente lite. Sometimes there may be reasons for allowing her counsel fees and money for other expenses when the court, in the exercise of the discretion vested in it, will not grant alimony pendente lite. In the order appealed from there was no question about those expenses, but only as to temporary alimony. In every one of the cases just cited the principle announced as to the right of the wife to alimony pendente lite is...