Silverberg v. Silverberg

• Decision Date: 30 June 1925
• Docket Number: 56.
• Citation: 130 A. 325,148 Md. 682
• Parties: SILVERBERG ET AL. v. SILVERBERG. SILVERBERG v. SILVERBERG.
• Court: Maryland Court of Appeals

130 A. 325

148 Md. 682

SILVERBERG ET AL. v. SILVERBERG.

SILVERBERG v. SILVERBERG.

No. 56.

Court of Appeals of Maryland

June 30, 1925

Motion for Reargument Overruled Oct. 7, 1925.

Appeal from Circuit Court No. 2 of Baltimore City; Walter I Dawkins, Judge.

"To be officially reported."

Suit by Rose Silverberg, against Simon Silverberg, Samuel Silverberg Goldie Silverberg, and others, in which first-named defendant filed cross-bill. A decree dismissing the cross-bill was entered, and first-named defendant appeals. The decree also dismissed plaintiff's bill as against all, except named defendants, and they appeal. From the decree in part, and from a subsequent order granting a petition of dissolution of an attachment issued on the decree against first-named defendant, plaintiff appeals. Decree affirmed in part, and reversed in part, and cause remanded.

Argued before BOND, C.J., and URNER, ADKINS, PARKE, and WALSH, JJ.

Benjamin H. McKindless and Arthur L. Jackson, both of Baltimore (Philip S. Ball, and Bartlett, Poe & Claggett, all of Baltimore, on the brief), for appellants Simon Silverberg Samuel Silverberg, and Goldie Silverberg.

Louis Hollander and David Ash, both of Baltimore, for appellee and cross-appellant Rose Silverberg.

PARKE J.

On August 21, 1921, Rose Cohan, a widow with an infant child, was married to Simon Silverberg, who was divorced, with an infant son, who was in the custody of the mother. No children were born of this second marriage. Their married life was unhappy and finally they separated on December 11, 1923, and since then have lived apart. The wife, Rose Silverberg, instituted proceedings on December 19, 1923, against her husband, Simon Silverberg, and his father and mother, Samuel Silverberg and Goldie Silverberg, and the Old Town National Bank, the Union Trust Company, the Equitable Trust Company, the Chesapeake Building & Loan Association, the Whittier Building & Loan Association, the Merritt Building & Loan Association, and the Silverberg Building & Loan Association. The principal objects of this bill of complaint were to secure an award of permanent alimony, on the grounds of cruelty of treatment, of excessively vicious conduct, and of abandonment and desertion; and of an allowance of counsel fees and temporary alimony pending the litigation because of the wife's inadequate means.

In addition to making the allegations upon which the complainant based her right to temporary and permanent alimony and counsel fees, the bill of complaint made charges which need not be set out at length, but which were, in effect: (a) That the husband, Simon Silverberg, is the actual owner of the Chesapeake Building & Loan Association, which is a corporate cover for certain of his own personal business and financial affairs; and that in the other corporate defendants he either has a controlling interest as stockholder or as owner of their obligations or as a depositor, and that much of these assets are hidden under the name of some corporation or individual other than said Simon Silverberg; (b) that the said husband was the actual owner of a number of valuable properties which, without consideration and in fraud of the marital rights of the wife, had been conveyed to the defendants, Samuel Silverberg and Goldie Silverberg, his wife, in one form or another, but that the said Simon Silverberg was the real owner thereof and the said Samuel Silverberg and Goldie Silverberg but the nominal owners for the secret use and benefit of the said Simon Silverberg; and (c) that the said husband, Simon Silverberg, is also the owner of money, stocks, bonds, and other property of great value, which the complainant averred he was disposing of, or so intended, in the names of third parties for the express purpose of defrauding the complainant of her rights as his wife. On these allegations the ancillary relief prayed for was: (1) That the defendants be severally enjoined from making, or permitting to be made, any change in the status of any of the realty and personalty, which in various forms were alleged to be the property of the defendant, Simon Silverberg, although the indicia of title might be to the contrary, and from receiving and collecting any rents, income, or profits from any property; (2) that a receiver be appointed for all the property and estate mentioned in the bill of complaint, and to collect all the rents, income, and profits thereof; (3) that the said defendants make full discovery of all the property held by them in any manner or form for, or on behalf of, the said Simon Silverberg, or for his use or subject to his order and control; and also of all financial arrangements and relations among them; and (4) that all deeds or other writings made by Simon Silverberg to Samuel Silverberg and Goldie Silverberg, his wife, or to either of them, in fraud of the marital rights of the complainant be annulled and set aside.

The answer of the defendant, Simon Silverberg, denied all the material allegations of the bill of complaint and made a countercharge of abandonment and desertion. Samuel Silverberg and Goldie Silverberg, his wife, answered separately, but denied all the allegations of the bill of complaint that affected them in any way, or that imputed fraud or the possession of their son's property, and ascribed the marital differences of their son to the conduct of his wife. The answer of the Old Town National Bank, Union Trust Company, Equitable Trust Company, Chesapeake Building & Loan Association, Whittier Building & Loan Association, Merritt Building & Loan Association, and the Silverberg Building & Loan Association were severally filed, and every one denied the incriminating allegations of the bill of complaint so far as each one was concerned, and their respective answers to the discovery demanded showed an aggregate deposit by Simon Silverberg in all the institutions named of $6,321.93; an obligation of $10,577.88 by Simon Silverberg on notes discounted at the Equitable Trust Company; a mortgage obligation of $20,000 of Simon Silverberg and wife to the Union Trust Company, and a maximum obligation of Simon Silverberg of $55,000 to the Equitable Trust Company as guarantor with Samuel Silverberg and others for the Silverberg Building & Loan Association, the Whittier Building & Loan Association, and the Merritt Building & Loan Association which had been respectively loaned under these guarantees the sums of $11,900, $11,000, and $10,000, aggregating $32,900.

In this connection, it may be stated that Simon Silverberg's answer denied the statement of the bill of complaint that he was a man of large means and earning capacity, but asserted that he was in financial distress.

The answer of the husband was immediately followed by a cross-bill against his wife, charging her with abandoning and deserting him on the day she accused him of a similar marital breach of duty, and praying for a divorce a mensa et thoro. The wife answered denying the marital accusations of the husband's bill of complaint. The parties took the testimony in open court. The decree dismissed the cross-bill of Simon Silverberg, and dismissed the bill of Rose Silverberg against all the defendants, except Simon Silverberg, the husband, and Samuel Silverberg and Goldie Silverberg, his parents. The decree annulled a deed from Simon Silverberg and Rose Silverberg, his wife, to Samuel Silverberg and Goldie Silverberg, his wife, dated December 11, 1923, and recorded among the land records of Baltimore City in Liber S. C. L. No. 4118, folio 124, etc., conveying what is known as the Silverberg Building.

The decree awarded Rose Silverberg permanent alimony at the rate of $150 a month, payable in equal installments quarterly, accounting from December 17, 1924, and the sum of $2,000 for the use of her counsel as a fee, and imposed the costs upon the husband. The decree was passed on December 29, 1924, and on February 9, 1925, an attachment was issued in equity on this decree and laid in the hands of the Equitable Trust Company, where the husband had a deposit of about $600 due him personally; and the writ was also laid in the hands of the Merritt Building & Loan Association to attach certain shares of stock owned by the husband. The husband thereupon filed a petition asserting that he had paid $350 on account of the fee of $2,000, and had tendered another $150 on account, but it was declined and counsel refused to accept less than $1,650. The husband asserted that $500 was the maximum counsel fee allowable, and that he should not be required to pay more, unless and until the matter should be so adjudged on appeal; and he asked that the chancellor dissolve the writ of attachment on his indemnifying the counsel against any loss which they might sustain by the dissolution of the attachment. The chancellor granted this petition, provided that the husband bring into court $1,650 to be deposited at interest and to answer the claims of the attaching creditors when and if the decree should be affirmed by the Court of Appeals. The sum was forthwith brought into court and deposited accordingly on February 12, 1925.

An appeal was entered from the decree passed on December 29th by Simon Silverberg, Samuel Silverberg, and Goldie Silverberg, his wife, three of the defendants to the original bill, and by Simon Silverberg as the plaintiff in the cross-bill. And Rose Silverberg also appealed from so much of the decree as dismissed the bill against the defendants, the Chesapeake Building & Loan Association, Merritt Building & Loan Association, and the Silverberg Building & Loan Association; and "so much thereof as fails to order a payment of more than $150 per month as permanent alimony; and so much thereof as fails to allow a sum in excess of $2,000 as counsel fee;...