Knabe v. Knabe

• Decision Date: 17 May 1939
• Docket Number: 37-40.
• Citation: 6 A.2d 366,176 Md. 606
• Parties: KNABE v. KNABE (four cases).
• Court: Maryland Court of Appeals

6 A.2d 366

176 Md. 606

KNABE v. KNABE (four cases).

Nos. 37-40.

Court of Appeals of Maryland

May 17, 1939

Appeal from Circuit Court of Baltimore City; Samuel K. Dennis and W Conwell Smith, Judges.

Suit for divorce by Mildred M. Knabe against Lloyd C. Knabe wherein plaintiff was granted divorce a vinculo matrimonii. From orders modifying decree with regard to support of the wife and support of the children, defendant takes separate appeals.

Judgment in accordance with opinion.

Mortimer Kremer, of Baltimore (William Hoffenberg, of Baltimore, on the brief), for appellant in all four cases.

Allers & Cochran and Harry W. Allers, all of Baltimore, for appellee in all four cases.

Argued together before BOND, C.J., and OFFUTT, PARKE, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

OFFUTT Judge.

On December 26th, 1934, Mildred M. Knabe filed in the Circuit Court of Baltimore City a Bill of Complaint against Lloyd C. Knabe, her husband, praying an absolute divorce on statutory grounds and the custody of their three children, Lloyd C., Jr., John R., and William George, born respectively, May 6th, 1935, September 8th, 1927, and June 9th, 1931.

Pending the litigation, and before decree the parties filed in the case on January 5th, 1935, an agreement in which they stipulated:

'1st. That the defendant, Lloyd C. Knabe, shall pay all the Court costs of these proceedings, and the sum of Seventy-Five ($75.00) Dollars as a counsel fee to the attorneys representing the complainant, and shall pay his own attorneys their fee for their services.

'2nd. That the Defendant shall pay unto the Complainant, Mildred M. Knabe, the sum of Ten ($10.00) Dollars per week on Friday of each week, beginning on Friday, December 28th, 1934, until the Complainant shall die or remarry, whichever event shall first arrive, or the Respondent shall die, and said payments shall be considered as alimony, pendente lite and permanent.

'3rd. That the Defendant will deed, grant, convey and assign and turn over to the Complainant, Mildred M. Knabe, all his right, title, and interest in the residence property now owned by them jointly, known as 2914 Louden Avenue, Home Owners Loan Corporation payment for December to be paid by Defendant, and the said Defendant will execute a deed and further assurance, if any, to fulfill this particular.

'4th. That the Defendant will give, grant and otherwise convey unto the Complainant, Mildred M. Knabe, all his right, title and interest in the furniture now owned by them jointly, free and clear from any liability, except books to be chosen by the Defendant, and the Underwood Typewriter.

'5th. That the Complainant, Mildred M. Knabe, shall have the care and custody of the three infant children of the parties to this cause, to wit: Lloyd C. Knabe, Jr. John R. Knabe and William George Knabe, and the Respondent agrees to pay unto the Complainant the sum of Eight ($8.00) Dollars per week solely for the support, maintenance and education of the said infant children of the parties to this cause, until said children shall have become self-supporting, or twenty-one (21) years of age, and the Defendant shall be permitted to see the said children and to have access to the said children at reasonable times.'

As the result of that and other subsequent proceedings the Court on March 5th, 1935, decreed in part that: 'The said Mildred M. Knabe the above named Complainant, be and she is hereby divorced a vinculo matrimonii from the Defendant, Lloyd C. Knabe.

'And it is further ordered that in accordance with the agreement between the parties, the defendant shall pay to the complainant the sum of $10.00 per week, as permanent alimony, on Friday of each week, accounting from December 28, 1934, and continuing thereafter subject to the further order of this Court in the premises.

'And it is further ordered that the said complainant shall have the guardianship and custody of Lloyd C. Knabe, Junior, John R. Knabe, and William George Knabe, the minor children of the parties in the proceedings mentioned, and that the said defendant shall pay to the said complainant the sum of $8.00 per week, accounting from the date of this decree, for the support and maintenance of said children, with the right to the defendant to see said children at all reasonable times, subject to the further order of this Court in the premises.'

On September 18th, 1935, Lloyd C. Knabe filed a petition in the case praying that so much of that decree as awarded the custody of the children to the mother be rescinded and that their custody be awarded to him. On October 25th, 1935, that petition was dismissed, but in the order of dismissal the court directed that 'the Defendant, Lloyd C. Knabe, is hereby ordered to pay unto Mildred M. Knabe as alimony, and for support and maintenance of the infant children of the parties to this cause the sum of Fourteen ($14.00) Dollars per week, the said payments to be made through the Probation Department of the Supreme Bench of Baltimore City; And that payments of alimony and support in arrears, heretofore, considered, be and are hereby suspended.'

On June 20th, 1936, in connection with the complainant's petition for an increase in the alimony allowance, the parties stipulated that the following order be passed: 'That the Respondent, Lloyd C. Knabe, pay unto the complainant Mildred L. Knabe, as alimony and for support and maintenance of the infant children of the parties to this cause, the sum of Sixteen ($16.00) Dollars per week, said payments to begin immediately and to be paid through the probation Department of the Supreme Bench of Baltimore City, subject, however, to the further order of this Court.'

On November 16th, 1938, the complainant filed a petition alleging that the advancing age of the children made the allowance of $16.00 per week for alimony and the support of the children inadequate. After a hearing on that petition on December 6th, 1939, the allowance was increased to $30 per week. On December 16th, 1938, the court ordered the defendant to show cause why he should not be punished for contempt for failing to obey that order. The defendant answered and by way of cause denied that the court had any power to change the allowance fixed by the decree of March 5th, 1935, and alleged that that allowance was not alimony. Notwithstanding that answer an attachment issued, and Knabe then filed a petition, in which he alleged his inability to pay $30 per week and prayed the court 'to reduce the said sum payable by him for the said plaintiff and the said minor children of the parties to such sum as will be proportionate to his income and within his ability to pay'. The complainant answered, and alleged that defendant's petition should not be considered (a) because he had failed to obey the order requiring him to pay $30 per week for her support and the support of their children, and (b) that that allowance had been made after full disclosure by defendant of his earnings. The defendant then filed a motion to vacate the attachment on the grounds that the allowance in the decree of March 5th 1935 for the support of the complainant and the children of the parties, was not alimony, because it was based entirely upon the agreement of the parties, that the order of December 6th 1938 operated to modify and alter the decree of March 5th 1935, and that 'under the original agreement and stipulation between the parties the Court was and is entirely without jurisdiction to in any way change, modify or alter the terms of the so called alimony and support money for the plaintiff herself.' After a hearing the court on January 16th, 1939, overruled that motion and on January 26th, 1939, ordered that 'the respondent, Lloyd C. Knabe, pay unto the Complainant, Mildred M. Knabe, for her support and maintenance and for the support and maintenance of the minor children of the parties to this cause, the sum of Twenty-one ($21.00) Dollars per week, accounting from Friday, January 20, 1939, and payable the same day of each week thereafter, subject to the further order of this Court, said sums to be paid through the Probation Department of the Supreme Bench of Baltimore City.'

Thereupon the four appeals in this record were taken, one from the order of December 6th, 1938, one from a supposed order of December 23d, 1938, one from the order of January 16th, 1939, and one from the order of January 26th, 1939.

The appeals present three questions, one, had the court after its passage the power to modify so much of its decree of March 5th 1935 as related (a) to the support of the wife, (b) to the support of the children; two, had the court the power to so modify that decree as to include in one item the allowance for the support of the wife and the allowance for the support of the children, which were itemized separately in it; and three, may the allowance for the support of the wife in the original decree, or, for the support of the wife and children in the orders involved in these appeals be enforced by an attachment for contempt.

Alimony is a money allowance payable under a judicial decree by a husband at stated intervals to his wife, or former wife, during their joint lives or until the remarriage of the wife, so long as they live separately, for her support and maintenance. 17 Am.Jur. 471; Willingsford v. Wallingsford, 6 Har. & J. 485, 488; Keerl v. Keerl, 34 Md. 21, 25; Hokamp v. Hagaman, 35 Md. 511, 517; Helms v. Franciscus, 2 Bland 544, 568, 20 Am.Dec. 402; Jamison v. Jamison, 4 Md.Ch. 289, 296; McCaddin v. McCaddin, 116 Md. 567, 573, 82 A. 554; Hood v. Hood, 138 Md. 355, 113 A.

895, 15 A.L.R. 774; Emerson v. Emerson, 120 Md. 584, 87 A. 1033; Polley v. Polley, 128 Md. 60 97 A. 526; Newbold v. Newbold, 133 Md. 170, 104 A. 366; Blades v....