Wagshal v. Wagshal

• Decision Date: 05 March 1968
• Docket Number: No. 54,54
• Citation: 249 Md. 143,238 A.2d 903
• Parties: Jerome S. WAGSHAL v. Darlein R. WAGSHAL.
• Court: Maryland Court of Appeals

Page 143

249 Md. 143

238 A.2d 903

Jerome S. WAGSHAL v. Darlein R. WAGSHAL.

No. 54.

Court of Appeals of Maryland.

March 5, 1968.

James J. Cromwell, Silver Spring, for appellant.

Melvin M. Feldman, Rockville, for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS and SINGLEY, JJ.

BARNES, Judge.

This appeal principally involves a challenge by Jerome S. Wagshal, the plaintiff in the Circuit Court for Montgomery County and appellant in this Court (hereinafter referred to as 'the husband'), of the propriety of portions of a decree signed on January 26, 1967, by the Chancellor (Pugh, J.) requiring the husband to pay $129.23 twice a month to his wife, Darlein Wagshal (wife), defendant below and appellee in this Court, for the support of Marla Frances Wagshal (child or Marla), the minor child of the parties, then 10 years of age, and allowing a $250.00 fee to the wife's counsel for services rendered the child in the case. The husband also objects to the action of the Chancellor in removing from the proposed form of decree submitted to the Chancellor by the wife's solicitor a provision agreed upon by the respective parties that the child 'shall be raised as a Jewish child.' There is no challenge to the provisions of the decree awarding the child's custody to the wife, subject to the further order of the court, and the provisions of the decree in regard to the husband's visitation rights, which were substantially the same as those agreed upon by the parties.

The basic facts in this case are for the most part undisputed. The husband and wife were married on July 26, 1953, in the District of Columbia. Marla is the only child of this marriage and was born on July 14, 1956. The husband and wife separated in October, 1964. Marla has resided with the wife since that time. Marla attends the public school and has always done this. She is not enrolled in any special courses requiring any unusual expense. She requires no special food and is a normal, healthy child who requires no special training devices. She has had, speaking generally, no unusual medical expenses. After the separation of her parents, Marla was given treatment by a child psychiatrist, but this treatment has ceased. Since the separation of her parents, Marla has been living with the wife and the wife's mother, the three of them sharing a two bedroom apartment. Marla and her grandmother share the smaller of the two bedrooms in the apartment, the wife occupying the large bedroom alone. The apartment rent is $164.50 a month and is paid by the grandmother.

The wife is a self-supporting professional artist. The record is not clear in regard to her earnings generally, but she testified that not long before the hearing she had been paid $90 a week as an illustrator by one of the department stores in the District of Columbia.

The husband is employed by the United States Government as an attorney in the Anti-Trust Division of the Department of Justice. The Chancellor found that his net annual income was $11,856 from the government, that he received $300 from outside sources, and that he received a refund from his federal tax of $250, so that his net annual income was $12,406. The husband sought unsuccessfully to prove in the trial court, but tendered the proof, that his net taxable income in 1966 was $7,317.10, and further that his federal income tax in 1965 was $1,856, indicating a taxable income of $8,805.85. For the purposes of this appeal the Court will assume, without deciding, that the husband's net annual income was $12,406 as found by the Chancellor. The testimony indicated that the husband has no estate and that his debts exceeded his assets. At the time of trial his debts amounted to $6,775. ¹ In addition to his personal effects, he has a stamp collection valued at approximately $1,500.

On June 21, 1965, the Chancellor (Shure, J.) signed an order awarding the wife $80 a week for support of the child, pendente lite. The husband, on November 15, 1966, filed a motion for an order reducing this pendente lite award, alleging that he had taken the wife's deposition and her testimony at the deposition indicated that nothing approaching $80 a week had been spent by the wife on the child, but rather expenditures for the child's support averaged less than $25 weekly. The husband supported the motion by his affidavit indicating that the costs for the maintenance of the child amounted to about $20 a week, consisting of approximately $10 for food, $1.50 for clothing, $2 for recreation, $1.50 for transportation and telephone and $5 for miscellaneous expenses. This motion and all other pending motions were denied by the Chancellor (Pugh, J.) on December 27, 1966, and the trial was set for January 29, 1967.

The husband had deposited the $80 a week pendente lite award in the wife's bank account, so that she would have to expend it by check. This she did, but the wife at the deposition hearing was unable to produce many of the withdrawal checks or to explain satisfactorily what disposition she had made of the funds she had withdrawn from her account allegedly for Marla's support and maintenance.

The husband testified that under the pendente lite over for $80 a week he had paid the wife in one year $4,160, and of that amount, only $980 could be accounted for as expenditures for the child. He submitted a tabulation (admitted as defendant's exhibit No. 5) giving the details of the estimated expenditures of $980 for the year for the child by the wife, an average expenditure of $19 a week. This same tabulation and the husband's testimony showed the husband's estimate, with specific subdivisions such as food, clothing, etc., on what he thought should be spent on the child for one year, not including rent paid by the wife's mother. This amounted to $1,155 a year, or an average of $20.20 a week. The husband estimated that for all purposes the amount required for the child's maintenance was between $25 and $30 a week.

The wife's estimate of the amount needed by the child is rather extraordinary. She testified...