Brown v. Brown

Delaplaine, J., delivered the opinion of the Court. This is the second appeal brought here by Edith Baker Brown from the Circuit Court for Carroll County in her suit for separate maintenance against her husband, Raymond Guynne Brown, Jr. ²⁰² The parties were married in Washington in May, 1933. They lived together in Carroll County for 17 years and have two daughters. Defendant owns and operates a lunch and soda fountain business in Ridge-ville and also has an extensive business in the operation of pinball machines and music boxes.

In the bill of complaint filed on September 14, 1950, complainant alleged that on August 28, 1950, she left her husband on account of his extreme cruelty and went with her two daughters to the home of her parents. She prayed the Court to award alimony, custody of the children and an allowance for their support, counsel fee for her attorneys, and an injunction and other security. Complainant alleged that her husband’s income was between $2,000 and $3,000 a month. The Court thereupon passed an order nisi requiring defendant to pay complainant $75 a week as alimony pendente lite and for the support of the children, and to pay complainant’s attorneys a counsel fee of $100.

On November 14, 1950, after defendant claimed that his income was about $2,000 a year, the Court reduced the award to $37.50 a week, accounting from September 14, 1950. On January 12, 1951, defendant filed a petition alleging that in December, 1950, his wife had entered his store and apartment and had taken some money, bonds, and bank books, and praying the Court to order her to return them. Complainant answered that she took some clothing that belonged to her and the children, and also “certain sums of money and property which belonged to her or in which she had some right of ownership.” In April, 1951, complainant filed an amended bill of complaint alleging that her husband had committed adultery on numerous occasions. She further alleged therein that she and her husband owned as tenants by the entireties a number of parcels of real estate in Carroll and.

Frederick. Counties, and that her husband, who had’ been .collecting the rents therefrom, had not been managing them in such a way as to produce fair and proper income, and also had failed to render an ²⁰³ accounting to her. She prayed the Court to appoint a receiver to manage the properties and to collect the rents, and also to order her husband to render an accounting of the rents which he had collected. Defendant, in his answer to the amended bill, denied that he was guilty of cruelty and adultery.

He then answered that he bought the properties entirely with his own money, and that they were conveyed to him and his wife merely for convenience. He further answered that he was managing the properties in the same way in which he had always managed them, and that no loss had been occasioned by his management. He further answered that the Court considered the income from the properties in fixing the amount of alimony pendente lite, and, since he had complied with the orders of the Court, there was no reason for an accounting. Complainant urged the Court to set the case for trial; but on September 24, 1951, more than a year after the institution of suit, the Court passed an order suspending further proceedings until complainant returned the property she had taken in December, 1950.

Complainant’s first appeal was from that order. On April 2, 1952, the Court of Appeals, in an opinion by Judge Collins, reversed the order on the ground that a court of equity in an action for divorce or separate maintenance has no power, unless conferred by statute, to adjust the property rights of the parties. Brown v. Brown, 199 Md. 585 , 87 A. 2d 626, 629 . Following the decision on that appeal, complainant again urged the Court to set the case for trial.

But the Court again gave consideration to defendant’s petition, and it was not until November, 1952, that the Court proceeded to the trial of the case. Complainant, who was then living in a three-room apartment in Mount Airy, was 36 years old. The elder daughter, age 18, had become a student nurse in the Union Memorial Hospital in Baltimore. The other daughter, age 13, was attending the public school in Mount Airy.

Complainant testified that her husband struck ²⁰⁴ her violently on a number of occasions. She testified that when she suggested in February, 1950, after her return from a hospital in Washington, that they ought to plan for a home, he became so enraged that he struck her on the chest, knocked her into the dining room, and bruised her spine. The climax came on the evening of August 28, 1950, when she returned home from the Carnival with her younger daughter. Her husband was waiting for her in the doorway, and he told her that she could not come in.

She testified that he struck her and knocked her into the road. It was then that she took refuge with her daughters in the home of her parents. Finally, on May 29, 1953, more than two years and eight months after the institution of suit, the Court reached the decision that complainant had established her right to separate maintenance. The Court thereupon entered a decree granting the custody of the children to complainant, and ordering defendant to pay her $50 a week as alimony and for the support of the children.

Complainant raised five objections to the decree: (1) that the allowance of $50 a week for herself and the children is insufficient; (2) that it cut the allowance to $37.50 a week for 36 weeks in order to reimburse defendant for the sum of $450 which she received from the sale of a bond; (3) that it failed to order a receivership; (4) that it failed to order an accounting; and (5) that it failed to order defendant to pay a counsel fee to her attorneys. At the outset defendant made the technical objection that complainant did not print all of the testimony in the appendix to her brief, as required by the Rules of the Court of Appeals, but printed only certain parts of it and made calculations therefrom favorable to herself. Rule 36 provides: “Unless ordered by this Court, it shall not be necessary to print the record on appeal, except that the appellant shall print as a part of the appendix to his brief the judgment, decree or order ²⁰⁵ appealed from, together with any opinion or charge of the Court.” Rule 39 directs that the appendix to the appellant’s brief shall also contain “such parts of the record as he desires the Court to read.” We have repeatedly emphasized the importance of printing all of the testimony material to the issue. Where the Court of Appeals must consider all material evidence in order to decide the questions raised by the appellant, the appellant may not print in the appendix to his brief only those portions of the testimony which he considers favorable to himself, but he must print all testimony that the Court has to have before it to decide such questions.

Seybolt v. Baber, 203 Md. 20, 25-26 , 97 A. 2d 907, 909 ; Gmurek v. Kajder, 203 Md. 437 , 101 A. 2d 204 . On this appeal the appendix to appellant’s brief contains 70 pages of testimony, and also the opinion of the Court, which covers 25 pages and completely recapitulates and discusses all of the testimony produced in the case. Defendant did not indicate where any contradictory testimony had been omitted. Apparently the appendix supplies the salient testimony for an understanding of the case.

Defendant also made the objection that complainant did not furnish him with a statement of the parts of the record she proposed to print within the time prescribed by the Rules of the Court of Appeals. Rule 39 provides: “The appellant, within ten days after the filing of the transcript of the record in this Court, shall furnish the appellee or his counsel with a statement of the parts of the record he proposes to print with his brief.” Complainant should have complied with our rule by furnishing defendant with a statement of the parts of the record she proposed to print within ten days after the filing of the transcript in the Court of Appeals. However, as it has not been shown that defendant was prejudiced by her delay, we will not dismiss her appeal. ²⁰⁶ Benner v. Tribbitt, 190 Md. 6 , 57 A. 2d 346 ; Klein v. Dougherty, 200 Md. 22, 25 , 87 A. 2d 821 . First..

We consider complainant’s contention that the Court should have awarded her a larger allowance for herself and her children. In determining an award of alimony or support, the court' has no precise' rule or standard formula. Faulkner v. Faulkner, 198 Md. 495 , 84 A. 2d 884 . The ability of the husband to provide support and the wife’s need for it are controlling factors.

The amount to be allowed in a suit for divorce or separate maintenance is governed by all the circumstances of each case, and is in the sound discretion of the court. The Court of Appeals has the right to review the amount of' alimony allowed. Daiger v. Daiger, 154 Md. 501, 508 , 140 A. 717 . However, the award should not be disturbed unless the chancellor’s 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 713 . In the case before us the records are so incomplete and the accounts so complicated that it is difficult to determine with certainty either the exact extent of defendant’s wealth or his exact income. We are convinced, however, that his wealth and income warrant a larger award to complainant. The Court placed a valuation of $15,050 on defendant’s store business and real estate, and $70,000 on his pinball and music box business.

The Court then listed the following assets: loans, $7,000; mortgage, $2,700; automobile and motor trucks, $3,469.25; money in bánk, $3,791.21. These assets aggregated $102,010.46. The Court then subtracted the following amounts: notes and accounts payable, $37,111.84; bad debts, $2,500; income taxes due for 1944, 1945 and, 1946, $46,600. As these amounts totaled $86,211.84, the Court concluded that defendant was,worth only $15,798.62. ²⁰⁷ It appeared that defendant had retained an attorney specializing in income taxation to contest the Government’s claim for $46,600 for income taxes, but the Court accepted the full amount of the claim as one of defendant’s liabilities, thus materially reducing defendant’s net worth and income.

On the other hand, when defendant testified that, in order to secure locations for his amusement devices, it was his custom to loan sums of money to the proprietors of the establishments, and that he had made loans aggregating $28,400, the Court did not believe that defendant loaned such amounts for the privilege of installing the devices. As defendant’s records for 1952 were not complete, the Court undertook to determine his income in 1951. It was shown that he had deposited in bank in that year a total of $110,987.10. However, defendant’s brother, Walter C. Brown, testified that of that amount only $84,419.14 was from collections.

Defendant claimed that, in determining the net income from his business, the following amounts were deductible from his gross income: salaries, $5,136.05; repairs, $6,049.58; gasoline and oil, $2,482.70; interest, $214.78; finance charges, $753; bad debts, $2,847.75; repairs to motor vehicles, $1,325; telephone, $193.55; freight, $282.94; heating, $439.78; license fees, $1,308; taxes, $612.77; total, $21,645.90. Complainant challenged the deduction of $5,136.05 for salaries, and the deduction of $6,049.58 for repairs. She called attention to the testimony of defendant’s collectors that they deducted the necessary amounts for salaries and repairs before they turned the collections over to defendant. Complainant also challenged the deduction of $2,482.70 for gasoline and oil, asserting that the testimony was uncontradicted that the collectors paid for gasoline and oil in cash.

Giving defendant the benefit of the doubt by allowing all of the deductions claimed by him totaling $21,645.90, there still remained a balance of $62,733.24. ²⁰⁸ Largely because of the rapid depreciation of pinball machines and music boxes, the Court, reached the conclusion that defendant’s net income in 1951 was only $3,814.38. The Court. evidently relied on the fact that defendant’s