Winkel v. Winkel

• Decision Date: 31 October 1940
• Docket Number: 8-13.
• Citation: 15 A.2d 914,178 Md. 489
• Parties: WINKEL v. WINKEL (six cases).
• Court: Maryland Court of Appeals

15 A.2d 914

178 Md. 489

WINKEL v. WINKEL (six cases).

Nos. 8-13.

Court of Appeals of Maryland

October 31, 1940

Appeals from Circuit Court, Frederick County; Edward S. Delaplaine and Arthur D. Willard, Judges.

Suit by Marian I. Winkel against Bernard A. Winkel for separate maintenance, wherein decree was rendered for plaintiff, who subsequently filed petition for increase in amount of alimony and petitions for order requiring payment of counsel fees for adjudication of amount due for unpaid installments, and to compel payment of counsel fees and costs. From orders entered on such petitions, both parties appeal.

Affirmed in part and reversed and remanded in part.

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

PARKE Judge.

The bill of complaint was filed on March 10, 1925, by the wife Marian I. Winkel, against the husband, Bernard A. Winkel. Its object was to obtain separate maintenance or alimony for the wife, to require the defendant to deliver certain real and personal property which she claimed as hers and for an injunction restraining the defendant from selling and disposing of certain personal property. The bill was not for a divorce but for alimony. It did not contemplate the dissolution of the marital tie. Nor have the spouses ever been granted either a divorce a mensa et thoro or a divorce a vinculo matrimonii. After disposing of the questions in dispute concerning the real and personal property, the Court decreed 'that the defendant pay to his wife pending further order of the Court the sum of $12 a week' for her support and maintenance, beginning from the time she should fully comply with the requirement that she convey by deed to her husband all her title and interest in certain real estate. The decree is dated May 23, 1925, but the wife failed to convey and the Court appointed a trustee to grant the land to the husband, which was done on September 11, 1931. The alimony consequently began to accrue from September 11, 1931. The questions on these appeals begin with that date. Winkel v. Winkel, 176 Md. 167, 169, 170, 4 A.2d 128.

The husband has never paid the wife any of the alimony awarded. Her testimony is that her subsistence before September 11 1933, was mainly derived from the payment to her by her husband of a weekly rental of $25 for a filling station operated by him on a property in Frederick which she owned and whereon she had her home. This source of income having stopped, the wife, on September 11, 1933, filed a petition that the original decree awarding alimony be modified by an increase. The husband filed a motion for the dismissal of the petition on the ground of the wife's contempt in not executing the grant to him of the property mentioned in the decree of 1925. There then ensued a protracted course of indecisive pleading and litigation which culminated in the petition of the wife which was filed on October 5, 1937, and amended on March 10, 1938. In this petition she requested the alimony be increased to $15 a week or to such sum as she might be found entitled, and that she be awarded what she should receive by reason of the husband's default. The husband filed a combined answer and demurrer. There was a denial of the material facts and of the wife's right to have revised the decree of May, 1925, and to have re-opened the amount of alimony to be paid. The Chancellor overruled the demurrer of the husband and, on his appeal, the Chancellor's ruling was affirmed on February 2, 1939, in Winkel v. Winkel, supra. The cause was remanded for further proceedings which were had. At the time of the remand, the petition of the wife for an increase in the amount of alimony, which was filed on October 5, 1937, was pending and awaiting determination. On April 13, 1939, the wife filed three additional petitions. One was for an order to require the husband to pay the solicitors for the wife a counsel fee for their services in connection with the appeal of Winkel v. Winkel, supra; and the costs of the appeal in the equity court until the appeal was taken. The second was for an order adjudging that the sum of $7,488 was due the wife from the husband for unpaid instalments of alimony and the third was to compel the husband to pay counsel fees and costs to the solicitors of the wife incurred in connection with the proceedings mentioned. These petitions were heard together. After consideration of the testimony and the argument of counsel, the Court decreed by four separate orders:

First: On the petition of October 5, 1937, for an increase in the amount of alimony awarded by the decree of May 23, 1925, the Court reduced the alimony from $12 a week to $4 a week, accounting from October 5, 1937, the date of the filing of the petition.

Second: On the petition in reference to the unpaid instalments of alimony the wife was decreed the sum of $3,785.14; which was computed, at the rate of $12 a week, for the period from September 11, 1931, the date of the conveyance of the trustee, to October 5, 1937, the date of the petition praying for a modification of the decree of May 23, 1925.

Third: On the petition for counsel fees for the solicitors of the wife in the appeal in Winkel v. Winkel, 176 Md. 167, 4 A.2d 128, the Court allowed a fee of $250, and the costs subsequent to October 5, 1937, which are to be paid by the husband.

Fourth: On the petition for further counsel fees on account of services rendered since the mandate of the appellate court, a fee of $50 and the costs were directed to be paid by the defendant.

After these orders were entered, the husband appealed in one order from every one of the four decrees. The wife took separate appeals from the first three orders. She then filed a petition to have the husband pay the costs of the stenographer's transcript of the record, of the printing of the record and of her brief, and of a reasonable fee for the services of her solicitors on appeal. The court passed an order fixing the fee at $150, and requiring it and the reasonable cost of the transcript of the record and its printing and that of her counsels' brief to be paid by the defendant, subject to the approval by the Court of the amounts of these costs. Both parties entered separate appeals from this last order.

Accordingly, there are six appeals entered on this record. In Nos. 8, 9, 10 there are cross appeals. In No. 11 the husband appeals and Nos. 12 and 13 are cross appeals.

As a result of the recent decision of this Court on the former appeal in this cause, the questions on these appeals are narrowed to a review of the orders made, after the remand, in reference (1) to the allowance of alimony for the period between September 11, 1931, and October 5, 1937, at the weekly rate of $12; (2) to the allowance, after the last named date, of alimony at the reduced rate of $4 a week; and (3) to the several allowances of fees to the wife's solicitors. It will be convenient to consider first the questions on the awards of alimony.

First: In its orders the chancery court selected the date of the filing of the petition of the wife for an increase in alimony, instead of the date of its decree, as the time for the reduction in the original award of alimony to begin. In this choice the Court is within its authority. The original decree of May 23, 1925, for alimony or maintenance was in full effect at the institution of the proceedings which give rise to the pending appeal. The amount of $12 a week for her support and maintenance was awarded 'pending further order of the court', which was a reservation of the right and power of the court to change or stop the allowance whenever the known circumstances of the parties would give occasion for such equitable redress. Wygodsky v. Wygodsky, 134 Md. 344, 348, 106 A. 698; Infra; Beck v. Beck, 43 N.J.Eq. 668, 14 A. 812. With such a right expressly retained, there can be no question of the power of the court to make either a reduction or an increase in the alimony or maintenance as the conditions or circumstances may require.

Moreover, the time when such modification may become effective was in the discretion of the chancellor. Commonly, the decree for alimony or maintenance is effective from the time of its passage, but the court may fix the time at which the alimony is to begin at either before, with or after the date of the decree. The adaptability, according to the circumstances, of the time when payment of the periodical amount of a continuing alimony or maintenance is to begin is a particularly serviceable procedural discretion in the event of an increase or decrease in the instalment to be paid. If the faculties of the husband are improved, the allowance to the wife ought to be increased, and if they decline, the wife's allowance should be reduced. DeBlaquiere v. DeBlaquiere, 3 Hag.Ecc. 322, 329, 162 Eng.Repr. 1173, 1175; Robinson v. Robinson, 2 Lee Ecc. 593, 161 Eng.Repr. 451; Kerr v. Kerr, [1897] 2 Q.B. Div. 439, 443; Cox v. Cox, 3 Add.Ecc. 276, 162 Eng.Repr. 480; Bishop on Marriage and Divorce, vol. 2, secs. 869-877; Tangye v. Tangye, L.R. [1914] Probate 201, 208; Halsbury's Laws of England, 2d Ed., vol. X, sec. 1267, p. 797.

In the instant case, the wife applied on October 5, 1937, for an increase in the amount of alimony or maintenance. The decree which denied any increase, but reduced the weekly payment to $4 was not passed until September 2, 1939. It made the reduction effective as of October 5, 1937, subject to the further order of the 159 A. 260, 83 A.L.R. 1237; Dickey v. alimony decreed on May 23, 1925, and the payment of the specific amount awarded was limited to the period of the pendency of the award of that date, which was constantly subject to modification.

So, the continuation of the payments pursuant to the...