Winchester v. Winchester

• Decision Date: 01 March 1921
• Docket Number: 15.
• Parties: WINCHESTER v. WINCHESTER.
• Court: Maryland Court of Appeals

113 A. 584

138 Md. 95

WINCHESTER v. WINCHESTER.

No. 15.

Court of Appeals of Maryland

March 1, 1921

Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump Judge.

"To be officially reported."

Action by Maud T. Winchester against Marshall Winchester. From an order requiring him to pay counsel fees, defendant appeals. Order reversed, and petition dismissed.

Wm Pinkney Whyte, Jr., of Baltimore (J. S. T. Waters of Baltimore, on the brief), for appellant.

L Wethered Barroll and Marbury, Gosnell & Williams, all of Baltimore, for appellee.

THOMAS J.

In February, 1913, circuit court No. 2 of Baltimore City granted the appellee, Mrs. Maud T. Winchester, an absolute divorce from the appellant, Marshall Winchester, awarded her the custody of their four minor children, with whose maintenance and support she was charged, and permanent alimony of $200 per month, and retained jurisdiction for the purpose of increasing or decreasing the amount of alimony so allowed. On the 6th of November, 1919, the appellee filed a petition in said court setting out the decree of 1913, and alleging, for the reasons therein stated, that she was entitled to receive a larger amount for her support and the support and education of her children, who had reached the ages of 24, 22, 21, and 18 years, and praying the court to modify said decree by increasing the amount of alimony allowed therein. In response to a nisi order passed on said petition, the appellant filed an answer thereto, resisting the relief prayed, and on the same day filed a cross-petition praying, for the reason stated therein, that the amount of alimony allowed by said decree be reduced.

After a hearing, at which testimony was produced before the court the court refused to modify the decree of 1913, and the petition and cross-petition were dismissed. Thereafter the appellee filed in said court a petition for an allowance of a fee to her counsel for the services rendered in connection with her said petition and the cross-petition of the appellant. The appellant demurred to this petition, but the court below overruled the demurrer, and on the same day, September 14, 1920, passed an order requiring the appellant to pay a fee of $100 to counsel for the petitioner for said services, unless cause to the contrary be shown on or before the day therein named. In response to this order the appellant again demurred to the petition for a counsel fee on the following grounds:

"1. That the said petition does not entitle the plaintiff to any relief.

2. That the plaintiff has not stated in her said petition such a case as entitles her to any relief in equity against the defendant.

3. That the court, having heretofore in this cause awarded the plaintiff a divorce a vinculo matrimonii, with alimony of $200 per month and counsel fee of $300, is without jurisdiction to award any further counsel fee to the plaintiff for any other proceedings which she may take in this cause, the said defendant having paid the alimony awarded against him, and in every way carried out the decree of the court."

The court below overruled this demurrer, and on the 22d of September, 1920, passed the order from which this appeal was taken, making "absolute" its order of September 14, 1920.

The right of a wife to alimony and to an allowance for services rendered by her counsel in the prosecution or defense of a suit for divorce, either in the lower court or on appeal, can no longer be questioned in this state. It rests upon the existence of the marital relation, the necessity for such an allowance, and the obligation of the husband to provide necessaries for his wife. Mix v. Mix, 1 Johns. Ch. (N. Y.) 108; Denton v. Denton, 1 Johns. Ch. (N. Y.) 364; Daiger v. Daiger, 2 Md. Ch. 335; Coles v. Coles, 2 Md. Ch. 341; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; McCurley v. Stockbridge, 62 Md. 422, 50 Am. Rep. 229; Rohrback v. Rohrback, 75 Md. 317, 23 A. 610; Chappell v. Chappell, 86 Md. 532, 39 A. 984. And in this state, even after a final decree granting a divorce, either a mensa or a vinculo, and permanent alimony, or alimony alone, the court retains jurisdiction for the purpose of modifying its decree as to such allowance. McCaddin v. McCaddin, 116 Md. 567, 82 A. 554; Emerson v. Emerson, 120 Md. 584, 87 A. 1033; Wygodsky v. Wygodsky, 134 Md. 344, 106 A. 698.

But in the case at bar, at the time the services (for which the allowance in question was claimed and made) were rendered, the appellee was not the wife of the appellant. The effect of the decree of 1913 was a complete severence of the marital tie, and, except to the extent of the alimony therein awarded, or that might thereafter be allowed in any modification of that decree, the appellant was thereby relieved and discharged from all further liability for the support of the appellee, or for necessaries furnished her. Emerson v. Emerson, supra; Dittmaier v. Heptasophs, 135 Md. 312, 108 A. 794; 9 R. C. L. p. 488, § 307. It is said in 1 R. C. L. p. 914, § 63:

"An allowance for counsel fees and suit money is, like an award of alimony, dependent upon the existence of the marriage relation."

And on page 916, § 65, that-

"An allowance for solicitor's fees and suit money may be made in any proceeding founded on the existence of the marital relation and involving an assertion of the duties arising therefrom."

In the case of Rohrback v. Rohrback, supra, the court, in support of the right of the wife to an allowance of a counsel fee for the defense of the suit on appeal, said:

"It is well settled that alimony may be allowed to the wife on application by her, after an appeal from an order or decree dismissing a bill in divorce proceedings. This was decided in Jones v. Jones, L. R., 2 Pro. & Div., 337. In that case, an application was made by the wife for alimony after an appeal had been taken by her from an order dismissing her petition for a judicial separation; and Mellor, J., said: 'As regards alimony under such

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