Mariani v. Mariani

• Decision Date: 14 November 1947
• Docket Number: 20.
• Citation: 55 A.2d 713,189 Md. 283
• Parties: MARIANI v. MARIANI.
• Court: Maryland Court of Appeals

55 A.2d 713

189 Md. 283

MARIANI v. MARIANI.

No. 20.

Court of Appeals of Maryland

November 14, 1947

Appeal from Circuit Court of Baltimore City; Herman M. Moser, Judge.

Action by Dorothy Mariani against Thomas E. Mariani, Jr., for permanent alimony and other relief. From an adverse decree plaintiff appeals.

Affirmed in part and reversed in part, and remanded.

Leon H. A. Pierson, of Baltimore (Edward Pierson and Pierson & Pierson, all of Baltimore, on the brief), for appellant.

G. C A. Anderson, of Baltimore (Samuel Abrams and Carman, Anderson & Barnes, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS Judge.

Alleging irreconcilable differences, Dorothy A. Mariani, appellant here, and her husband, Thomas E. Mariani, Jr., appellee entered into a separation agreement on February 14, 1945. This agreement provided among other things, in effect, that a property at 4004 Southern Avenue, Baltimore, held by the two parties, should be conveyed to Dorothy A. Mariani and the property at 4605 Eastern Avenue, owned by the parties, should be conveyed to Thomas E. Mariani, Jr. These conveyances were later completed. The agreement also provided that the wife should have the custody of the two minor children. Paragraphs (c) and (d) of the agreement which are pertinent here were as follows:

'(c) That he will pay to the said Dorothy A. Mariani the sum of Fifty ($50.00) Dollars per week, payable weekly accounting from the date hereof for the support and maintenance of the said Dorothy A. Mariani (his wife) and his two minor children, until they reach the age of eighteen years when an adjustment will be made so as only to take care of the support and maintenance of the said Dorothy A. Mariani.

'(d) That he will pay or cause to be paid all necessary charges and expenses incident to and connected with the costs and expenses for the education of the said minor children, in the McDonogh School or some other comparable private school, and such sums as may be necessary to defray necessary medical and dental expenses for the said children. That he shall also pay the costs of sending the younger of the said children to private nursing school and kindergarten until such time and age as he shall be acceptable for the McDonogh School or some other comparable private school. These sums are to be paid in addition to the weekly sum hereinbefore provided to be paid to Dorothy A. Mariani.'

After this agreement was executed the appellant testified that her husband told her that he was in love with his secretary. This was not denied by the appellee. Following this statement the appellant filed a bill of complaint in which she alleged the marriage of the parties to this cause; the birth of two children, one aged 10 years and the other five years old; adultery on the part of her husband not condoned; and the desertion of her by her husband. She alleged that the annual income of the appellee was $25,000 and that the sum of $50 provided in the agreement of February 14, 1945, filed as an exhibit with the bill, was not sufficient for the support of herself and her infant children, and that she was without means to employ counsel and defray the expenses of the suit. She further alleged that the agreement aforesaid, executed on February 14, 1945, was secured by fraudulent representation on the part of the appellee, and she was imposed upon when she signed this agreement.

She asked in her bill for permanent alimony, custody of the minor children, support for the minor children, alimony pendente lite, counsel fee, expenses and costs of the suit, and for other and further relief.

An answer, filed by the husband, denied the material allegations of the bill and set forth the agreement of February 14, 1945, aforesaid, as a defense and asked that the bill of complaint be dismissed. Testimony in the case was taken before the chancellor. The appellee did not testify in his own behalf and called no witnesses. When called as a witness for the appellant he testified that his gross income for the year, 1946, was $12,892; that his office expenses were about $4,600 for the year, 1946, and these expenses included the salary of his secretary in the amount of $1,469. He did not deny the allegation made by his wife about the separation, and about his statements in reference to his secretary still employed by him.

A decree was signed by the chancellor on the 10th day of February, 1946, declaring the agreement of February 14, 1945, null and void except as to the conveyances of the two parcels of real estate hereinbefore mentioned. The decree further ordered that the appellee pay to the appellant the sum of $30 per week as permanent alimony; that custody of the two minor children be awarded the appellant with the right of the appellee to see them at all reasonable times; that the appellee pay to the appellant the sum of $30 per week for the support of the two minor children; and that he pay her attorneys a counsel fee of $250, and the cost of the suit. From that decree the appellant appeals to this court.

On appeal she contends that the allowances made by the chancellor for permanent alimony and the support of the two minor children are not sufficient. She does not question any other part of the decree.

The appellee first contends that the appellant cannot attack and apppeal from the decree and at the same time accept the benefits thereof. He cites as his authority the case of Silverberg v. Silverberg, 148 Md. 682, 130 A. 325. In that case Rose Silverberg appealed from only part of the decree and this court held that such appeal involved the twofold error of at the same time splitting the decree and attempting both to accept and reject its terms. In the case at bar the appellant appeals from the whole decree but contends here that only that part of the decree should be reversed which is prejudicial to her, namely permanent alimony and support of the children. It could hardly be contended that if a wife files a bill for separate maintenance and support for her children and receives an inadequate amount she could not appeal for the purpose of having the alimony and support increased. We do not think under the authority of the case of Silverberg v. Silverberg, supra, that this appeal should be dismissed. The appellant here is entitled to her day in court here on the question of alimony and support for her children. Wygodsky v....