Birdsall v. Birdsall

⁵⁰³ Moore, J., delivered the opinion of the Court. Appellant-husband, a corporate executive earning in excess of $50,000 per year, appeals from an award of alimony in the sum of $1800 per month and child support of $200 per month contained in a decree granting the wife a divorce a vinculo on grounds of adultery. The parties were married for 27 years and had four children, one of whom is deceased. The three other offspring have attained their majority. 1 The husband’s adultery was clearly established.

It reoccurred (with the same paramour) after the dismissal by the wife of a prior divorce action based on adultery followed by a reconciliation to which she agreed in the interest of the family and upon condition that the illicit relationship would cease. The record discloses that the parties and their children had enjoyed a comfortable standard of living. For approximately six years prior to the trial, they occupied a country home on 5V2 to 6 acres in Germantown, Montgomery County, Maryland, with an outdoor swimming pool, spacious patios and other amenities. The wife’s estimate of the value of the property was in the range of $165,000 to $200,000.

The husband’s financial statement assigned it a valuation of $115,000. At the time of trial the husband was occupying the daughter’s former bedroom on the second floor and testified that he intended to reside in the dwelling even after a divorce. The wife continued to occupy the master bedroom on the first floor, sharing it (upon advice of counsel) with her mother who came to live ⁵⁰⁴ with her prior to the filing of the bill of complaint in April, 1973. The parties’ two sons also resided there, the older one of whom contributed $25 per week for his support.

The wife’s mother contributed approximately the same amount. The record discloses that the husband is a vice-president of Colonial Carpets Inc., a retail sales organization with two outlets in Virginia and one in Maryland, with gross sales in 1973 of approximately $1,800,000. He is the owner of a 49% stock interest in the business purchased for $50,000 in 1961. His salary from Colonial was $700 per week and he received another $200 per week salary from a carpet installation business known as B. & L. Installations.

In addition, he was paid commissions from an organization known as General Felt Industries aggregating, in 1973, $4,586.34. Thus, his total earnings for the calendar year 1973 were $51,386.34. In addition, the Carpet Company provided him with hospitalization, vacations, and a B.M.W. automobile including gasoline, maintenance and repair services. The husband’s assets, as shown on his financial statement, were in the sum of $192,138 against which were listed liabilities of $57,666.66.

The latter included the house mortgage of $35,000, an obligation to his own company in the sum of $15,000 and a note in the sum of $7,666.66. The note, however, was a deed of trust note secured by real property in Virginia, and was signed by the husband as an accommodation endorser only. Mr. Birdsall’s assets, in addition to the stock interest in the business and his equity in the matrimonial residence, included a 23-foot Thunderbird motorboat which he purchased for $6,000 and valued at $2,000, an interest in a Tennis Club in Virginia claimed to be worth $1,000 after an original investment of $5,000, and an interest in a joint venture valued by him at $18,000 after an original investment exceeding $28,000. The husband’s total expenses were stated at $3,208.84 per month.

This, however, included pendente lite alimony and support of $415, attorney’s and investigator’s fees in the amount of $378, house maintenance of $388.24, meals outside the home at $390 and recreation and entertainment ⁵⁰⁵ in the sum of $338.62. Several of the above items of expense were plainly overstated. Moreover, certain of the husband’s answers concerning his financial requirements were not such as would impress the Chancellor with their accuracy and reliability. The following testimony of the appellant on cross-examination is illustrative: “Q. Now, you have transportation at the rate of $85.00 a month?

A. That is right. Q. And what is that for? A. Well, I get charged back for a percent of my gas and by Internal Revenue if they don’t allow it, I tried to deduct the whole thing and the last time they tried to allow me ten percent which is highway robbery, and I am trying to get it back from them. Who knows.

Q. Well, but so far this year you have, you are being charged the entire cost of your transportation to Colonial, is that right? A. I charge it to Colonial.” The wife’s financial statement reflected income from dividends on shares of stock inherited from her father in the sum of approximately $50 per month. She had been employed before the marriage as a secretary and, several years prior to the trial, had worked temporarily in a women’s apparel shop. Her assets included the aforementioned inherited shares of stock with a value of approximately $13,200, a 1973 Thunderbird given to her by her husband, a savings account of approximately $1,000 and a small checking account.

In addition, she claimed an equity in the home and an interest, unspecified, in the husband’s carpet business. The only liability listed by Mrs. Birdsall was the home mortgage. The wife’s testimony, unrebutted, was that during the marriage she managed the household and paid the household bills except for large maintenance costs and auto expenses. The money expended by her, according to her testimony, ⁵⁰⁶ averaged between $1,200 and $1,300 each month, not including domestic help, transportation, entertainment and taxes.

Her projected monthly expenses for herself and the then minor child, assuming their living in a rental unit rather than the home, were in the sum of $2,193, including an estimate of federal and state income taxes of $250 per month. Her specific expenses were listed as follows: rent $450, food $350, clothing $210, medical/dental $75, transportation $75, recreation and vacation $150, insurance and hospital $120, realty taxes $160, light and telephone $120, heat (oil) $33 and incidentals $200. At the conclusion of the trial the chancellor delivered an oral opinion from the bench and, after holding that the wife had clearly sustained the burden of proof with respect to the husband’s adultery, found that the husband “has a capacity to earn in excess of $50,000 a year and . . . there is no indication ... of reducing his income significantly below that amount.” The court also observed that the husband enjoyed “a great variety of the amenities of life and apparently he has shared these with his family, at least in part, over the course of their married life, and they have established a station in life which is quite substantial. . . .” Before concluding that a reasonable amount of alimony would be $1,800 per month, the chancellor noted that the wife had not currently been employed and that her station in life had not required employment; and further that she was at an age “where opportunities for employment are indefinite and uncertain” and that the record did not support the availability of any particular employment at that time. The court also remarked that the wife was “wronged” by the husband’s conduct and that there was nothing to indicate that she contributed in any way in the fault that destroyed the home. j The essence of ¡the husband’s complaint on this appeal is that, after payment of federal, state and local taxes, he has a net income of approximately $36,786; that on a monthly basis this leaves' approximately $3,000 “after-tax dollars” available for. the support of himself and his former wife; and ⁵⁰⁷ that the court’s decree results in his being required to pay 66 2 A per cent of his net income in support payments.

Our analysis of the arithmetical computations presented in appellant’s brief demonstrates that his statements are inaccurate. We turn first, however, to a consideration of appellant’s legal contentions. I We flatly reject two major premises advanced by the husband: (a) that Donigan v. Donigan, 208 Md. 511 , 119 A. 2d 430 (1956) altered the general rule that the chancellor is entrusted with wide discretion in making an award of alimony which should not be disturbed on appeal unless it was arbitrarily used or his judgment was clearly wrong; and (b) that the Court of Appeals in Bowis v. Bowis, 259 Md. 41 , 267 A. 2d 84 (1970) approved a one-third-of-net-income rule as a “suggested guideline” to be followed in awarding alimony. In Donigan , the chancellor denied alimony and the Court of Appeals held this action clearly erroneous. 2 It was not a case where, as here, the equity court heard testimony and oral argument.

There the Court stated (p. 521): “In the case before us the chancellor did not see the witnesses and decided the case from the record, even as do we, without the benefit of oral argument which we have enjoyed, so that his opportunity for a sound exercise of judgment was not as great as ours.” The observations of the Court in Donigan are patently applicable only to the procedural posture of that and similar cases where the lower court made its determination on the basis of a record and recommendations submitted to it. Where the lower court has heard the testimony and seen the witnesses, the scope of appellate review is more limited. As ⁵⁰⁸ the Court of Appeals stated in Lopez v. Lopez, 206 Md. 509, 520 , 112 A. 2d 466 (1955): “The Court of Appeals has the right to review the amount of alimony allowed, but the award should not be disturbed unless the chancellor’s discretion was arbitrarily used or his judgment was clearly wrong. ” (Emphasis added.) See also Willoughby v. Willoughby, 256 Md. 590 , 261 A. 2d 452 (1970). As for any percentage guidelines in the determination of awards of alimony, the husband’s interpretation of Bowis, supra, is erroneous.

In Bowis , the late Judge Finan writing for the Court observed that in three cases 3 “one may gather . . . that this Court followed an approximate one-third rule of net income in awarding alimony where support for children was not involved.” 4 He quickly added, however, that the Court of Appeals has “repeatedly emphasized the fact that there are no pat rules or statutory mandates to be followed in making awards for alimony and support and maintenance,” and concluded: “Indeed, one is hard-pressed to find any area of law where the need is more compelling to tailor the remedy to the facts of each particular case. ” (p. 43) (Emphasis added.) Citing Bowis , this Court held in Quinn v. Quinn, 11 Md. App. 638 , 276 A. 2d 425 (1971) that: “. . . [N]o fixed rule exists whereby the amount of the award is based on a percentage of the husband’s wealth or income.” (Emphasis added.) Indubitably, the Court of Appeals and this Court have, in passing, made note of the percentage relationship between ⁵⁰⁹ the award to the wife and the husband’s “net income,” sometimes adverting to the effect of income taxes and sometimes not. Thus, in Schuman, supra, n. 3, the Court of Appeals, in an opinion by Smith, J., found that an award of alimony of $180 per month was inadequate and “should be increased to $300 per month, a little more than Vs of the husband’s income.” (Emphasis added.) (252 Md. at p. 17). There, the Court found from the record that the husband’s net worth was $79,000 and his “total net monthly income” was $876, derived from two pensions, from “net income” on rental properties and from dividend and interest income. Although the Court did not specify whether the “net income” was before or after taxes, it does appear that the term was used in a business or accounting sense, i.e., after business expenses but before taxes. 5 And in Hall, supra, n. 3, the Court of Appeals, in an opinion by Powers, J., Associate Judge of the Seventh Judicial Circuit, specially assigned, held that “the allowance by the chancellor to the wife of $300 a month, being approximately one-third of the husband’s net income, without proof that he has assets of any substantial value, is not clearly erroneous and accordingly, this finding will not be disturbed.

Maryland Rule 886 a.” (Emphasis added.) The husband’s income tax payments were noted by Judge Delaplaine for the Court of Appeals in Bradshaw, supra, n. 3, wherein it was held that an award of $210 per month “is about SOper cent of the husband’s incow,e afterpayment of ⁵¹⁰ the income tax. This is not so excessive as to oppress him.” (Emphasis added.) (189 Md. at p. 326). The Court observed that the husband’s 1946 income was $8,439.87 on which he paid a federal income tax of $1,559.86. Reducing an award of $400 per month to $225 per month in Verges v. Verges, 13 Md. App. 608 , 284 A. 2d 451 (1971), this Court in an opinion by Judge Moylan, observed that the modified award was V3 of the husband’s income before taxes: “We believe that alimony in the amount of $225 per month would be proper and more in keeping with the standards laid down in Xewmeyer v. Xewmeyer, 216 Md. 431, 435 , and Quinn v. Quinn, supra.

Without suggesting that a mechanical formula can ever govern in such cases, ice point out that this would, represent approximately 1/3 of the appellant-husband's net income before