Timanus v. Timanus

• Citation: 16 A.2d 918,178 Md. 640
• Decision Date: 17 December 1940
• Docket Number: 25,26.
• Parties: TIMANUS v. TIMANUS (two cases).
• Court: Court of Appeals of Maryland

16 A.2d 918

178 Md. 640

TIMANUS v. TIMANUS (two cases).

Nos. 25, 26.

Court of Appeals of Maryland

December 17, 1940

Appeals from Circuit Court, Baltimore County; Frederick Lee Cobourn Judge.

Suit by Beulah I. Timanus against John J. Timanus for a divorce a mensa et thoro, wherein defendant filed a cross-bill for divorce a vinculo matrimonii. From decree awarding complainant permanent alimony at the rate of only $14 a week and from order refusing to require defendant to pay costs and counsel fees in connection with appeal from alimony award complainant appeals.

Decree reversed in part and affirmed in part; order reversed; cases remanded.

Sophie Nordenholz, of Baltimore, for appellant.

J. Howard Murray and John Grason Turnbull, both of Towson, for appellee.

Argued before BOND, C.J., and PARKE, SLOAN, MITCHELL, JOHNSON and DELAPLAINE, JJ.

DELAPLAINE Judge.

Beulah I. Timanus, the appellant, instituted suit in the Circuit Court for Baltimore County for a divorce a mensa et thoro from her husband, John J. Timanus. The husband was granted on cross-bill a divorce a vinculo matrimonii, but the decree was reversed by the Court of Appeals. Timanus v. Timanus, 177 Md. 686, 10 A.2d 322. On February 29, 1940, the Chancellor, in compliance with the mandate, dismissed the cross-bill and granted a divorce a mensa et thoro to the appellant. The final decree awarded permanent alimony at the rate of $14 a week.

The first of these appeals is from the alimony award. The appellant contends that the allowance is not sufficient for her maintenance and not commensurate with the means and station in life of her husband. She alleged that, after they had lived together for 35 years, his cruelty became so unbearable that she was unable to cohabit with him any longer. According to the testimony taken on February 29, 1940, she has been living in the apartment of her married daughter, to whom she pays $5 a week for board, but she is obliged to sleep in the living room on a cot. She is under the care of a physician and needs money for medicine and food for special diet. She says she still has about half of the fund of $750, which she received from her husband in settlement of her interest in his real estate. But she says that on account of her impaired health and her age she is not able to work for a living.

The appellee is a lawyer practicing in Towson. Prior to the separation, his income was approximately $4,000 a year. He now holds the position of Zoning Clerk for the County Commissioners of Baltimore County, which pays an annual salary of $3,000. He explained that he had taken this position because his income had been dwindling as a result of his ill health, and he was apprehensive that he might soon be compelled to abandon his practice entirely. Nevertheless, he admitted that since August 1, 1939, his attorney fees had been averaging more than $170 a month. Thus his gross income exceeded $420 a month.

It is a general rule that a court, before determining the award of alimony, should consider the maintenance of the wife 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 parties, the court should also usually consider their station in life, their age and physical condition, ability to work, the length of time they lived together, the circumstances leading up to the separation, the fault which destroyed the home, and their respective responsibilities for the care and support of the children.

The award should be made in an amount sufficient to support the wife in reasonable comfort in her station in life. But when the husband owns no property, the Court can not base the award of alimony upon a hope of gratuities or a mere surmise that he will receive them. The wife is entitled to demand such support as her husband is reasonably able to furnish from his property or earnings. In applying for alimony, a wife is not asking for favors, but demanding rights, and these rights should be considered in connection with her husband's capacity. Wygodsky v. Wygodsky, 134 Md. 344, 347, 106 A. 698, 699; Roberts v. Roberts, 160 Md. 513, 525, 154 A. 95, 100; Muir v. Muir, 133 Ky. 125, 92 S.W. 314, 4 L.R.A.,N.S., 909; Hooper v. Hooper, 102 Wis. 598, 78 N.W. 753, 755, 44 L.R.A. 725; Boyden v. Boyden, 50 R.I. 326, 147 A. 621, 66 A.L.R. 214.

The appellee now lives alone in his eight-room home at Woodlawn Baltimore County. The property is mortgaged in the sum of $5,000, but a lot...