Wygodskt v. Wygodsky
Decision Date | 09 April 1919 |
Docket Number | No. 32.,32. |
Citation | 106 A. 698 |
Parties | WYGODSKT v. WYGODSKY. |
Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; James M. Ambler, Judge. "To be officially reported."
Bill by Leon Wygodsky against Elsa M. Wygodsky. From an order allowing alimony and counsel fees, the plaintiff appeals. Affirmed.
Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, URNER, and CONSTABLE, JJ.
Leonard Weinberg, of Frederick, and Isaac Lobe Straus, of Baltimore, for appellant.
Randolph Barton, of Baltimore (Randolph Barton, Jr., and James J. McGrath, both of Baltimore, on the brief), for appellee.
This is an appeal, from an order of the circuit court of Baltimore city, dated the 28th day of October, 1918, requiring the appellant, to pay to the appellee, his wife, the sum of $250, as counsel fee, and the; further sum of $200 per month, as alimony pendente lite, and continuing until the further order of the court
The bill for divorce a mensa et thoro was filed by the husband against the wife on the 20th of September, 1918, on the ground of desertion. The defendant appeared and answered the bill on the 3d of October, 1918, denying its allegations, and also filed a crossbill asking for a divorce on the ground of cruelty and desertion, and for alimony during the pendency of the suit, and for a counsel fee to enable her to prosecute the suit.
It appears from the record that the final order, allowing the alimony and counsel fee in the case, was passed by the court below after a full hearing, upon the application and an answer thereto, testimony taken, and upon arguments by the counsel for the respective parties, and made subject to the further order of the court. While this court has the undoubted right and power to review the amount allowed and fixed as alimony in divorce proceedings by the lower court, it is well settled, as stated in McCaddin v. McCaddin, 116 Md. 572, 82 Atl. 554, that it should not disturb the large discretion vested in the chancellor, unless it is thoroughly satisfied that there has been error in respect to the amount named. Buekner v. Buckner, 118 Md. 264, 84 Atl. 471; Crane v. Crane, 128 Md. 220, 97 Atl. 535; Westphal v. Westphal, 132 Md. 330, 103 Atl. 846.
The principal ground urged by the appellant for the reversal of the order appealed from appears to be that the award and amount directed to be paid the wife is excessive, and not based upon the financial condition and income of the husband or a reasonable allowance under the testimony in the case.
While there is no fixed rule as to the award or allowance of alimony to a wife pending a suit for divorce, it was held in Crane v. Crane, 128 Md. 220, 97 Atl. 535, where the earlier cases in this court were reviewed and considered, that the rule is believed to be almost universal to allow a destitute wife, who has been abandoned or is living apart from her husband, temporary alimony and the means of prosecuting or defending a suit for divorce, and this without any inquiry whatever into the merits.
The testimony at the hearing of this case, and set out in the record, shows that the husband has an actual cash income of $11,302. He testified that he was the vice president and general manager of the Baltimore Oil Engine Company, and had received an annual salary of $10,000 for two years from the company, and this amount had been paid to him in regular monthly installments during this period. It also appears that he owns property, including cash, to the amount of $30,947.29 as follows:
Cash in savings bank
1,000 ah. Cosrten pfd., say
Mortgage
5,000 00
Liberty Bonds
1,800 00
Furniture, etc
4,500 00
Cash
239 04
Total
In addition to these amounts he owns 219 shares of Cosden common stock and 1,800 shares of Baltimore Oil Engine Company. The latter holding of stock he testified was "still in an experimental stage"; and his life is insured in favor of this company for $100,000.
He was married on the 1st of September, 1917, and had lived with his wife, at the boarding house of the wife's father and mother, since their marriage.
The wife, it appears, owns no property whatever, and he testified "that she considered herself weak and not strong," and that she was not able to attend to any of the household work, except she would mend stockings or underwear. At the time of the filing of the bill by him and at the time the testimony was taken, the wife was expecting to become the mother of her first child in February, 1919, and the child was subsequently born on January 26, 1919. Apart from filing the bill, at this critical period in the wife's life, he took from her all the furniture in a replevin proceeding, and left her absolutely helpless and without any resources or property of any kind. He testified:
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McAlear v. McAlear, 138
...and the circumstances leading to the divorce. Brodak v. Brodak, 294 Md. 10, 28, 447 A.2d 847, 856 (1982); Wygodsky v. Wygodsky, 134 Md. 344, 346-47, 106 A. 698, 698-99 (1919). Additionally, this Court repeatedly determined that an award of alimony could be modified if the circumstances, nee......
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Kingsley v. Kingsley
...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, 909 (sic); Hooper v. Hoop......
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Stancill v. Stancill, 22
...in a vacuum, independent of considerations that bear directly on the well-being of the child. Sixty years ago, in Wygodsky v. Wygodsky, 134 Md. 344, 106 A. 698 (1919), this Court The award or the amount of an allowance as alimony is largely within the judicial discretion and rests upon all ......
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...discretion was arbitrarily used and his judgment was clearly wrong. Westphal v. Westphal, 132 Md. 330, 334, 103 A. 846; Wygodsky v. Wygodsky, 134 Md. 344, 106 A. 698; Fairbank v. Fairbank, 169 Md. 212, 217, 181 A. 233; Mariani v. Mariani, 189 Md. 283, 289, 55 A.2d In the case before us the ......