Maynard v. Maynard, 85

• Decision Date: 10 April 1979
• Docket Number: No. 85,85
• Citation: 42 Md.App. 47,399 A.2d 900
• Parties: Hilton W. MAYNARD, Sr. v. Lucille Hunt MAYNARD.
• Court: Court of Special Appeals of Maryland

Page 47

42 Md.App. 47

399 A.2d 900

Hilton W. MAYNARD, Sr. v. Lucille Hunt MAYNARD.

No. 85.

Court of Special Appeals of Maryland.

April 10, 1979.

George Chartrand, Annapolis, with whom were Alan Hilliard Legum and Legum, Cochran & Chartrand, P.A., Annapolis, on brief, for appellant.

Thomas M. Schifanelli, Annapolis, for appellee.

Before MORTON, LISS and WILNER, JJ.

MORTON, Judge.

This is an appeal by Hilton W. Maynard, Sr., from a decree entered in the Circuit Court for Anne Arundel County (Wray, J.) divorcing the parties and awarding his wife, Lucille Hunt Maynard, permanent alimony. There is a single contention:

"Absent an intervening substantial or material change in the circumstances of the parties, the Court may not issue an Order for an increase in permanent alimony over the amount previously awarded for alimony pendente lite."

The record reveals that appellant brought the suit for divorce on the ground of voluntary separation. Md.Code, art. 16, § 24. Appellee, in her answer, charged appellant with desertion and later filed a cross-bill for separate maintenance both pendente lite and permanent. A hearing on the bill for separate maintenance pendente lite was held on May 27, 1977, before Judge Bruce C. Williams. After reviewing the testimony and financial statements filed by the parties, Judge Williams signed an order dated June 3, 1977, directing appellant to pay the appellee "the sum of $30.00 bi-weekly accounting from May 27, 1977."

The proceedings went to hearing on the merits before Judge James L. Wray. Testimony was taken, the parties again filed financial statements and by a decree signed on January 11, 1978, the parties were granted a divorce a vinculo matrimonii and appellant was ordered to pay the appellee "$65.00 bi-weekly as permanent alimony * * * ."

It is in this procedural and factual posture that appellant contends that Judge Wray was without authority to enter the award of permanent alimony in an amount in excess of the award of alimony pendente lite, since there had been no material or substantial change in the financial circumstances of either of the parties during the seven-month period between the award of alimony pendente lite and the award of permanent alimony.

At first blush appellant's argument has a certain appeal. He points to the statements of this Court in Lott v. Lott, 17 Md.App. 440, 444, 302 A.2d 666, 669 (1973), where we said:

"It is well settled in this State that a court of equity may, for sufficient cause shown, modify a decree for alimony at any time. In so doing, however, it may not litigate matters that were or should have been considered at the time of the initial award."

This, of course, is still good law in our opinion. Appellant's effort to have it apply in this case, however, would require us to lift the statement out of context since in Lott the issue was whether to modify a permanent award of alimony, previously granted, as a result of alleged changes in the financial circumstances of the parties.

Here, however, we are concerned with the difference in the amount of alimony pendente lite and the amount of permanent alimony awarded, which in our opinion, is not comparable to a situation where a court modifies an award of permanent alimony previously granted. As the nomenclature indicates, an award of alimony pendente lite is a monetary payment pending the outcome of litigation which has been instituted but which has not been concluded.

In Black's Law Dictionary (4th ed., 1951) alimony pendente lite is defined as "an allowance made pending a suit for divorce or separate maintenance, including a reasonable allowance for preparation of the suit as well as for support." On the other hand, Black defines permanent alimony as a "provision for the support and maintenance of a wife during her lifetime." ¹

In Nelson on Divorce and Annulment (2d ed., 1945), alimony pendente lite is spoken of in terms of "temporary alimony." In § 12.13 it is stated:

"An application for temporary alimony or for suit money, in a pending matrimonial action, while not a separate suit, is a collateral proceeding within the basic suit, and is a proceeding for a separate order, independent of the final judgment in the action."

In § 12.24 Nelson states:

"The applicant for the allowance must show, at least prima facie * * * in order to obtain an allowance pendente lite of temporary alimony, allowance for support of children, and/or suit money, including counsel fees, (1) the pendency of the matrimonial action in which the allowance is sought; (2) the existence of a marriage between the parties; (3) a probable cause of action or defense on the part of the applicant, with reasonable probability of success of the applicant on the trial; (4) financial inability of the wife to support herself and/or to prosecute or defend the action; and (5) the ability of the husband to make the payments."

This, of course, is a substantially different measure than that employed in awarding permanent alimony. ² In Flanagan v. Flanagan, 270 Md. 335, 339, 311 A.2d 407, 410 (1973), the Court of Appeals quoted with approval Timanus v. Timanus, 178 Md. 640, 642, 16 A.2d 918 (1940):

" 'It is a general rule that a court, before determining the award of alimony, should consider the maintenance of the wife ³ in accordance with the husband's duty to support her suitably, together with the husband's wealth and earning capacity. In addition to the financial circumstances of the...