Smith v. Smith

• Decision Date: 17 January 1962
• Docket Number: No. 126,126
• Citation: Smith v. Smith, 227 Md. 355, 176 A.2d 862 (Md. 1962)
• Parties: Hiram E. SMITH v. Lula Elsie SMITH.
• Court: Maryland Court of Appeals

Page 355

227 Md. 355

176 A.2d 862

Hiram E. SMITH v. Lula Elsie SMITH.

No. 126.

Court of Appeals of Maryland.

Jan. 17, 1962.

Isidor Roman, Baltimore, for appellant.

Southey F. Miles, Jr., Baltimore, for appellee.

Before HAMMOND, HORNEY, MARBURY and SYBERT, JJ., and O. BOWIE DUCKETT, J., specially assigned.

SYBERT, Judge.

This appeal questions whether the chancellor was erroneous in determining the amount of alimony to be paid by appellant, Hiram E. Smith (defendant below), to appellee, Lula E. Smith (plaintiff below), his wife, and it also questions the validity of certain other portions of the decree.

The appellant, a clergyman, has been for many years the pastor of a Baltimore church. He also has carried on a real estate business and acquired extensive properties, generally held as tenants by the entireties with his wife, who assisted him in all of these endeavors. Since their marriage in 1931 they have had seven children whom they sent to college; maintained both a city and a beach home, and at one time had four motor boats and at another three automobiles. Of the seven children, six are adults and one is a minor son attending Morgan State College. One of the adult sons is an epileptic, unable to work and requiring care at home, which involves considerable medical expense, according to appellee's testimony. The minor and the epileptic son live with the appellee.

On September 17, 1959, appellant left his wife and began living in another house owned by the parties. Shortly thereafter he was seen in the company of one Hattie L. Williams. All family efforts at reconciliation were futile, the appellant refusing to return or discontinue his relationship with the other woman. He became a joint owner of a piece of leasehold real estate and an automobile with her and made payments on her behalf to the extent of $4,675.33 within a year, according to a record of such expenditures in his own handwriting, introduced by the wife at the trial.

Appellee, as a result, filed a bill of complaint for permanent alimony. Appellant answered and filed a cross-bill for an absolute divorce on ground of desertion. After hearing the case on its merits the Chancellor entered a decree dismissing appellant's cross-bill and ordering: (1) that appellant pay appellee $50.00 a week as permanent alimony; (2) that he pay her $12.50 per week for support of the infirm adult child until he is able to be gainfully employed; (3) that he pay her $12.50 per week for support of the minor child while he attends Morgan State College; (4) that the appellee be entitled to reside on property on Grantley Road owned by them by the entireties, and requiring appellant to make the mortgage payments on this property; and (5) that appellant turn over to appellee a certain automobile titled in his name for her exclusive use, with all expenses for the car to be paid by appellee.

In this appeal from the decree the appellant contends that the Chancellor erred by awarding excessive alimony to the wife and in certain other respects which will be discussed hereinafter.

(1)

We do not think the Chancellor was wrong in ordering the appellant to pay his wife $50.00 weekly as alimony. He had before him on the one hand the standard of living the parties had enjoyed up to the time of their separation, with no indication that this rather comfortable level was about to decline for any reason, particularly with five of the children already emancipated. On the other hand, the Chancellor had before him the earnings of the appellant, and reason to believe that they were higher than appellant's testimony and skimpy records would indicate. Since appellant himself stated he did not know what his exact earnings were, a 1959 joint income tax return (no 1960 return had been filed) was introduced and showed a gross income of $7,776.08, of which only $600 could be attributed to the wife. The gross income figure apparently represented the appellant's income as pastor of $4500 a year and $3200 from 'other work', but the appellee testified that her husband's special fees for presiding at weddings, funerals, and other such occasions were not reflected in his income tax return to her knowledge. Appellant's present salary as pastor is $5200 a year. While appellant contended that the rents from the various properties, which he has continued to collect, did not meet expenses and mortgage payments, he did not include in the listed holdings certain shore property that had been leased at $3,000 per year, and from which he had already collected between $900 and $1,000, which 'was all put into the bank'. In addition, he admitted that he receives every month a check from the Government for $67.00, the nature of which was not explained.

In considering all the circumstances of the case, including the amount of money appellant was expending on the other woman, the Chancellor in our opinion did not abuse his discretion in setting the amount of the alimony and therefore we will not disturb his award. A wife will not be made to suffer because of her husband's extravagance. Brown v. Brown, 204 Md. 197, 209-210, 103 A.2d 856 (1954). Compare awards of $50.00 a week made in Ashman v. Ashman, 194 Md. 565, 72 A.2d 250 (1950), and Lopez v. Lopez, 206 Md. 509, 112 A.2d 466 (1955).

(2)

Appellant contends that the Chancellor clearly erred in ordering him to pay the sum of $12.50 per week for support of the physically incapacitated adult son of the parties. He cites Borchert v. Borchert, 185 Md. 586, 45 A.2d 463, 162 A.L.R. 1078 (1946), as authority for the proposition that Art. 16, § 25, Code (1957), providing for support of children in case of divorce, applies only to minor children regardless of disability. In that case this Court noted that there was no common law obligation to support adult, incompetent children, but found, in view of many decisions in other jurisdictions affirming such liability, often without any supporting statutory enactment, 'that there is now a tendency in this country, whether based upon local statutes or upon a modern judicial expansion of the common law, to recognize a duty imposed upon a parent to support his incapacitated child.' (at p. 592, 45 A.2d at p. 465). However, in the absence of statutory authority in this State, the Court declined to follow the trend, stating (at pp. 594-595, 45 A.2d at p. 466):

'However desirable it may be for some power to exist by which a father may be compelled to support his son, under the circumstances set out in these proceedings [physical and mental disability], the Legislature has not seen fit to make the failure to do so a criminal offense although it has so designated such failure in other domestic situations * * *. The omission * * * of such a statute is an indication that the failure to support an incapacitated child is placed * * * on a different footing from the failure to support a minor child. We cannot now without further legislative action hold that the divorce statute attempted to be invoked in this case is enlarged to include other than minor children * * *.' (Emphasis added.)

It is significant, we think, that at the first opportunity after the Borchert decision further legislative action was in fact taken. At its 1947 session the Legislature enacted an act now codified as § 97 of Art. 27, Code (1957), making it a criminal offense for a parent, possessing the means, to fail to provide for a destitute adult child where mental or physical infirmity makes it impossible for the child to care for itself. The passage of this act is a clear indication of legislative intent to place failure to support an incapacitated child on equal footing with failure to...