Benner v. Benner

Melvin, J., delivered the opinion of the Court. By decree dated November 9, 1976, Katherine H. Benner, appellant, was divorced a vinculo matrimonii from Charles B. Benner, appellee. The decree further ordered that appellee pay the sum of twenty-five dollars ($25.00) per week as alimony. In his oral opinion, given at the conclusion of the ³⁶⁸ hearing on the merits, the chancellor (Mackey, J.) stated his reasons for awarding alimony as follows: “The Court will award a divorce to the wife and dismiss the Cross Bill of Complaint.

So far as Mrs. Benner being destitute, she has, among other things, a $30,000 expectancy, by her own admission from her mother’s estate. So you can’t really place her in a category of being destitute over any long term. That is a substantial amount of money, more than many many people ever accumulate in a lifetime. Also, the marriage only lasted 3 years in which Mrs. Benner was involved from age 36 to 39, apparently.

So it isn’t like her whole life had been taken, not like a 25 year marriáge or something of that sort, I mean. She also predicates her $75 a week request on total inability to work, which is not borne out by the three medical reports in the case here. Each of the doctors in no sense said that she is unable to work; but that she should avoid stressful situations. And I believe there are positions that are available that would fit that requirement in which she could earn a living.

I certainly agree that she is in very unusual circumstances at the present, very • touching circumstances, to say the least. And I think for that reason there should be an award of alimony subject to a further order of the Court. But, at this time I am going to order alimony of $25 a week to be paid on a bi-weekly basis, each pay.” (Emphasis added). Appellant contends that the chancellor erred in considering the “$30,000 expectancy” in awarding alimony, and that the amount awarded was clearly wrong.

We agree. I Although Md. Ann. Code, Art. 16, § 3 (1976 Cum. Supp.) provides that alimony may be awarded in cases where a ³⁶⁹ divorce is decreed, Article 16, § 5, directs that the court not award alimony “unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs”. Article 16, § 5 has been interpreted by this Court in Quinn v. Quinn, 11 Md. App. 638, 643 , 276 A. 2d 425 (1971), cert. denied, 262 Md. 749 (1971) as follows: “Maryland Code, Article 16, Section 5, directs that the court not award alimony ‘unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs.’ It is thus altogether plain that alimony is not to be awarded as a punitive measure.

Bowis v. Bowis, 259 Md. 41 . Rather, it is an allowance to the wife in recognition of the husband’s common law liability to support her; it is an allowance of money payable at stated periods by the husband to the wife for her support during their joint lives so long as they live apart. Fairbank v. Fairbank, 169 Md. 212 . In other words, the sole object of the alimony award is to provide an allowance to the wife for food, clothing, habitation, and other necessities.

Dougherty v. Dougherty, supra; Hood v. Hood, 138 Md. 355 . It was held in Waters v. Waters, 191 Md. 436 , that in determining an award of alimony and whether, under the statute, the wife’s income ‘is insufficient to care for her needs,’ the court should consider the husband’s wealth and earning capacity, the assets and income of the wife, the station in life of the parties, their age, physical condition, and ability to work, the length of time the parties lived together, the circumstances leading up to the divorce, and the fault which destroyed the home. To the same effect, see Burton v. Burton, 253 Md. 233 ; Newmeyer v. Newmeyer, 216 Md. 431 .” While it is clear that “the assets and income of the wife” may be considered by the chancellor in awarding alimony, Id., the issue of whether the chancellor may properly ³⁷⁰ consider an expected inheritance 1 of the wife has never been decided by a Maryland appellate court. Any inquiry into what the chancellor may properly consider in awarding alimony must necessarily begin with an examination of the purposes for such an award.

As we said in Quinn v. Quinn, supra, alimony is not awarded as a punitive measure; rather it is an allowance to the wife based on the husband’s common law duty to support her.