Lewis v. Lewis

• Court: Maryland Supreme Court
• Writing for the Court: HENDERSON
• Citation: Lewis v. Lewis, 219 Md. 313, 149 A.2d 403 (Md. 1959)
• Decision Date: 17 March 1959
• Docket Number: No. 173,173
• Parties: James B. LEWIS v. Ruth B. LEWIS.

Page 313

219 Md. 313

149 A.2d 403

James B. LEWIS v. Ruth B. LEWIS.

No. 173.

Court of Appeals of Maryland.

March 17, 1959.

E. W. Mollohan, Jr., Washington, D. C. (Arthur C. Elgin, Washington, D. C., on the brief), for appellant.

Jackson Brodsky, Washington, D. C. (Milford F. Schwartz, Washington, D. C., on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and J. DUDLEY DIGGES, Jr., Specially Assigned.

HENDERSON, Judge.

On March 7, 1956, a husband sued for divorce a vinculo on the ground of voluntary separation in December, 1952. The wife answered denying that the separation was voluntary, alleging that the husband deserted her on the date mentioned, and praying alimony. On May 15, 1956, the Chancellor passed an order awarding alimony pendente lite of $250 per month. On January 28, 1958, the wife filed a cross-bill for divorce a mensa on the ground of desertion, praying alimony. After hearing, the Chancellor on July 25, 1958, dismissed the original bill, granted the wife a divorce a mensa, and ordered payment of permanent alimony in the amount of $500 per month, and a counsel fee of $1,000. The husband appealed on August 22, 1958, and the wife filed a cross-appeal on August 25, 1958, contending that the Chancellor should have allowed alimony of $1,000 per month.

Subsequently, upon a show cause order to compel payment of the alimony order, the appellant petitioned the court to modify the order for permanent alimony pending the appeal and to reinstate the order for alimony pendente lite in the lesser amount. The Chancellor declined to do so, but there was no appeal from that order. The appellant contends that the court erred in so ruling. If we assume, without deciding, that the point is properly before us, we find no error. It would seem that the previous order for alimony pendente lite, passed more than two years before the final order, was superseded by the final decree. Cf. Rethorst v. Rethorst, 214 Md. 1, 15, 133 A.2d 101. The Chancellor properly made a redetermination of the amount necessary for the wife's needs, in the light of the financial status of the parties at the time of the final decree. It is well settled that the entry of an appeal from a final decree does not stay the operation of an order for the payment of alimony. Berman v. Berman, 191 Md. 699, 706, 62 A.2d 787; Daiger v. Daiger, 154 Md. 501, 508, 140 A. 717. A wife is entitled to the continuance of alimony during the pendency of an appeal to this Court and until its final disposition. The Chancellor has jurisdiction to consider modification of the award, despite an appeal. Hornstein v. Hornstein, 195 Md. 627, 638, 75 A.2d 103; Dougherty v. Dougherty, 187 Md. 21, 33, 48 A.2d 451. Ordinarily, that would only be appropriate where there is a change in financial status. Hughes v. Hughes, 216 Md. 374, 377, 140 A.2d 649. We find no abuse of discretion in his failure to modify the award.

The appellant filed in this Court a motion to dismiss the cross-appeal on the ground that the wife is barred by estoppel or waiver from claiming an amount larger than that awarded, because she accepted the payments ordered. We reserved ruling on the motion. We assumed in Brennecke v. Brennecke, 213 Md. 447, 132 A.2d 106, that a cross-appeal would lie challenging the sufficiency of a counsel fee, although the point was not raised. Some support for the contention is found in Silverberg v. Silverberg, 148 Md. 682, 689, 130 A. 325. But we are unwilling to follow the reasoning of that case that the appeal involved splitting the decree and attempting both to accept and reject its terms. The cross-appellant could not contest that portion of the decree that was in her favor. Cf. Riley v. Naylor, 179 Md. 1, 8, 16 A.2d 857; Inter-City Land Co. v. Baltimore County, 218 Md. 80, 85, 145 A.2d 263. Moreover, in the Silverberg case the decree set aside a deed from the husband to third parties and granted benefits to the wife over and above an award of alimony.

There is a split of authority on the point in the cases in other States. Some of them are distinguishable on the facts and involved property settlements and releases by the wife. In Harris v. Harris, 67 App.D.C. 85, 89 F.2d 829, the court held that the wife was barred, but stated that she would have been entitled to a new award of alimony pendente lite, pending appeal. We find no support for such a distinction in the Maryland cases. Cf. Nicodemus v. Nicodemus, 186 Md. 659, 668, 48 A.2d 442 (modified as to the power to stay by Berman v. Berman supra.) The Chancellor in the instant case made a redetermination as to the amount necessary for the wife's support pending the appeal as well as thereafter. The rule is stated in general terms in Moorman v. Moorman, 163 Mich. 652, 129 N.W. 13, in 2 Am.Jur. Appeal and Error, § 219, and in 27 C.J.S. Divorce § 284, note 13, but it has been repudiated or greatly restricted in other cases. See Meyer v. Meyer, 76 S.D. 268, 77 N.W.2d 559; Hundley v. Hundley, Ky., 291 S.W.2d 544; McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318, 322 note, 169 A.L.R. 985, 999; Nelson, Divorce & Annulment (2d ed.) § 30.03.

We have had occasion to consider the same problem in Workmen's Compensation cases. See Bethlehem Steel Co. v. Mayo, 168 Md. 410, 177 A. 910; Petillo v. Stein, 184 Md. 644, 649, 42 A.2d 675; cf. Smith v. Revere Copper and Brass, Inc., 196 Md. 160, 166, 76 A.2d 147. It was stated in the Mayo case that, if applicable at all, the rule would not apply where the right to the benefit received was not contested by appeal of the opposite party. In the Petillo case it was held inapplicable where both parties appealed. Chief Judge Marbury, for the Court, noted that the cases cannot be reconciled on the theory of estoppel or waiver, and seem to be based on a supposed requirement of election of remedies. It was further noted that it is generally held that the doctrine is a severe one and should not be extended. We hold that, if applicable at all in a divorce case, the bar cannot be raised where the benefits accruing to the wife, by reason of the award, provide necessary support until the final adjudication of the case. The motion to dismiss the cross-appeal is denied.

Upon the merits of the case, we think the Chancellor was not clearly wrong in finding that the husband's departure was not in fact a valuntary separation, but was a desertion on his part. The parties were married in 1943, and there were no children of the marriage. In 1950, they purchased and moved into a house in Chevy Chase. Marital difficulties came to a head in September, 1951, and in the course...