Rubin v. Rubin

• Decision Date: 06 December 1963
• Docket Number: No. 70,70
• Citation: 233 Md. 118,195 A.2d 696
• Parties: , 99 A.L.R.2d 256 Morris RUBIN v. Rose RUBIN.
• Court: Maryland Court of Appeals

Page 118

233 Md. 118

195 A.2d 696, 99 A.L.R.2d 256

Morris RUBIN v. Rose RUBIN.

No. 70.

Court of Appeals of Maryland.

Dec. 6, 1963.

Wallace Dann and Calvert Ross Bregel, Baltimore (Howard Calvert Bregel, Baltimore, on the brief), for appellant.

Herbert Myerberg, Baltimore, for appellee.

Before HENDERSON, HAMMOND, HORNEY, MARBURY and SYBERT, JJ.

HORNEY, Judge.

The cross-appeals in this action for permanent alimony and support of a minor, by Rose Rubin, the wife, against Morris Rubin, the husband, based on the ground of adultery, present three questions: (i) as to whether the amount of alimony and support awarded was excessive; (ii) as to whether the chancellor erred in ordering the husband to pay the charges of an investigator employed by the wife; and (iii) whether the chancellor erred in declining to cite the husband for contempt for refusing to pay the investigator's charges.

The parties were married in December of 1931. Two sons and a daughter were born as a result of the marriage. The sons are now adults and married. Custody of the daughter, who is now eighteen years of age and a college student, was awarded to the mother.

Although the husband appealed generally from the decree, he does not challenge the cause for nor the award of alimony and custody of and support for the daughter, but he does contest the amount of the award of alimony and support and the allowance to the wife of the expense of an investigator. The facts therefore may be limited to such of the testimony as relates to the financial worth of the husband, his income and earning capacity and to the employment by the wife of a detective to investigate and acquire information of the husband's adulteries to support the allegations in the bill of complaint.

The husband and a brother operate a restaurant and bar. Prior to November of 1961, the business was run as a partnership. Since that date it has been operated by a corporation in which each of the former partners own fifty per cent of the capital stock. The net profits for the eleven months of the fiscal period from November 1, 1961, to September 30, 1962, were $22,916, exclusive of officers' salaries. The net profits for the calendar year of 1960 had been $16,692. For ten months of the calendar year 1961 the net profits had been $14,630. At the end of September 1962, the corporation, after allowing for depreciation, officers' salaries and other expenditures showed a net profit of $11,416, before the payment of income taxes. After the payment of taxes, the net income of the corporation was $7858. An analysis of the 1962 balance sheet reveals total liquid assets of $18,302.24 and total liabilities of $83,699.92, including the mortgage of $36,600 on the building owned by the corporation and the 'family' loans of $25,818. But there was testimony by the partner-brother that, except for the 'family creditors,' their debts totaled only $3672.50, were 'not too high' and could be paid off without any substantial 'change or effect' on the business.

During the operation of the partnership, each of the partners drew $125 per week, and the income taxes due by each was charged to his capital account, so that the weekly drawings of $125 were net. But, after the formation of the corporation, this was no longer possible, and the gross weekly salary of the husband of $125 was reduced to approximately $97.50 as 'take home' pay. There were, however, certain 'fringe benefits,' such as the use of an automobile owned by the corporation at no expense to the husband, and such food and drink as he chose to consume at the restaurant and bar. There was also evidence that on vacation the husband charged his meals to the corporation by means of a credit card. He testified that he had 'no personal living exprenses,' but there was evidence that he incurred substantial bills for personal clothing.

The home of the parties was owned by the husband and wife as tenants by the entireties. At the time of trial it was encumbered by a first mortgage balance of $1883.40 and a second mortgage, placed thereon by the husband when he and his brother began operating the business, on which the balance due was $2746.16. There was no testimony as to the value of the property. The wife, it seems, assumed the monthly payments aggregating approximately $145 on both mortgages. She and the daughter presently occupy the home. Apparently the husband resides elsewhere. The wife, who was not working at the time of trial, estimated that the total living expenses of herself and daughter, exclusive of income taxes, was in excess of $180 per month.

On these facts, and the voluminous other testimony and exhibits in the record, the chancellor estimated that the average income of the husband was slightly in excess of $250 per week. Prior to the decree the weekly payments for alimony pendente lite and household expenses had been $100. By the decree, the chancellor awarded permanent alimony and support for the daughter of $148 per week, which, pursuant to the decree, has since been increased to $171 per week.

Before the marital difficulties between the parties began, the husband came home regularly between 2:30 and 2:45 a. m. after he had finished work at the restaurant and bar. After their difficulties began, the husband would not come home until daybreak. When the wife asked him the reason for being late, his explanations caused her to suspect that he was unfaithful to her. Prior to employing the investigator, the wife, either alone or with a sister-in-law, had seen her husband and one of his mistresses together on several occasions after the restaurant and bar closed. On one occasion in November of 1959, the wife saw her husband's automobile parked near the apartment of the mistress and watched for half an hour, but saw nothing. On another occasion in early December of 1959, she saw her husband purchase food at a nearby restaurant and watched as he and the mistress went to her apartment together at about 2:30 a. m. When asked about these occurrences the husband denied them, and everytime the wife questioned him about not coming home earlier, he would become belligerent and make their living together even more difficult for her. This, she testified, was the reason she decided to employ an investigator.

Later in December of 1959, the wife, the investigator and other witnesses observed the husband and his mistress at her apartment under such circumstances as indicated that the husband was guilty of adultery. Suit was not filed until June 3, 1960. Thereafter, in August of 1960, the wife, the investigator and other witnesses observed the conduct of the husband with another mistress in such state of undress as to warrant an inference of the commission of adultery. The investigator charged $455 for the investigation services, of which the wife paid $255 on account, leaving a balance of $200 unpaid at the time of trial. The chancellor, in addition to decreeing payment of a counsel fee and the court costs, directed the husband to reimburse the wife to the extent of $255 and to pay the balance of $200 due the investigator, but declined to cite the husband for contempt when he refused to pay such sums.

(i)

The award of alimony to the wife and support for the daughter was excessive. The weekly gross salary of the husband was $125 per week. On the theory that the husband was entitled to one-half of the net profits of the corporation for 1962 as income, and that such 'income,' plus the 'fringe benefits' he otherwise received from the business, amounted to another $125 per week, the chancellor found that the husband had a total gross weekly income of $250. Although the chancellor considered the 'net profits' of the corporation instead of its 'net income' after taxes, ¹ we cannot say, since there was some evidence that the debts of the corporation were negligible, that the chancellor was clearly wrong in finding that the husband's share of net profits or income of this 'close' corporation, plus the so-called 'fringe benefits' he had received, was the equivalent of $125 per week. Even so, the award of $171 per week out of total income of $250 was too much. We think that $120 per week would be a more reasonable amount to allow. This, of course, may be increased or decreased from time to time as circumstances may require.

(ii) and (iii)

The contention that the chancellor erred in ordering the husband to pay the charges of the investigator employed by the wife to gather evidence of the husband's adulteries, insofar as it is based on the fact that there is no statute in this state requiring a husband to pay such charges, is not sound.

While permanent alimony can only be granted to a wife on a showing of facts sufficient to support a decree of divorce, Levy v. Levy, 229 Md. 103, 181 A.2d 663 (1962), it would seem to follow that if the chancellor has authority in an action for divorce to award the charges of an investigator as suit money, he can allow such expenses in an action for permanent alimony. Courts of equity were given jurisdiction to hear and determine 'all causes for alimony' by Chapter 12, § 14, of the Laws of 1777. See Code (1957), Art. 16, § 2. It is also true that the jurisdiction of equity over divorce actions was created, and the power of such courts to award alimony where a divorce is decreed was authorized, by Chapter 262, §§ 1, 3, of the Laws of 1841: prior thereto divorces were granted by the Legislature. See Art. 16, §§ 3, 22. But that does not mean that courts of equity are without power to allow suit money, including investigation expenses, in a proper case for services rendered by an investigator. It was said in McCurley v. McCurley, 60 Md. 185, 188 (1883), quoting 2 Bishop, Marriage, Divorce and Separation, § 387, that the nature of the wife's allowance for the expenses of a divorce suit is "in fact a sort of alimony; the one being for the defraying the ordinary expenses of the wife in the matter of living; the other being...