Buckner v. Buckner

Burke, J., delivered the opinion of the Court. The appellant filed a bill against the appellee in the Circuit Court No. 2 of Baltimore City for a divorce “a mensa et thoro” upon the ground of abamdlonment. The appellee filed a cross-bill in which she also asked for a divorce a mensa, alimony and counsel fee. Answers and replications were filed and much testimony was taken by the respective parties ²⁶⁴ in support of their contentions.

The Count, om January 2nd, 1912, passed a decree dismissing the appellant’s hill, and allowing permanent alimony to the appellee of ten dollars per week accounting from the 27th of November, 1911, and1 it further decreed that the appellant should pay the sum of two hundred and fifty dollars as counsel fees incurred by her in the suit in addition to the sum of one hundred dollars previously allowed her as a counsel fee. Erom this decree both parties appealed to this Court, which reversed the decree, and held that the appellant was entitled to a divorce a mensa,, and that the appellee was living apart from her husband without sufficient cause, and, 'therefore, was not entitled to alimony. And the transcript of the record in these appeals had been transmitted to this Court, the appellee filed a petition in the case stating that the plaintiff had appealed from the decree, and that thereafter she had entered a cross appeal. She further stated that she must engage counsel to represent her in these appeals, and that she would be put to other expense in connection with the appeal, and that she was without funds, to pay counsel and to meet these expenses.

Attached to the petition was a certificate of two members of the bar, favorably known to this Court, that in their opinion “from the nature of the proceedings and the questions' raised on appeal, having due- regard to the financial responsibility of the husband” a fee of five hundred dollars would, be reasonable. The Court passed an order requiring the husband to pay to his wife the sum of three hundred and fifty dollars as counsel fee in connection with the appeal and the further sum of fifty dollars for printing her brief, any excess to be accounted for by the wife to the husband. The appeal before us is taken by the husband from that order. The fee of three hundred and fifty dollars previously allowed, and which appears to have been paid, was allowed as counsel fees to the wife in the case then pending in the lower Court, and was not intended to include compensation ²⁶⁵ to counsel for services to the wife on appeal to this Court, because no appeal was then pending and it was not known that one would bo taken.

The fee then allowed was adjudged by this Court in the first appeal to have been “proper and adequate under all the circumstances of the case.” The principal grounds urged for the reversal of the order appealed from are thus stated in the appellant’s brief: “It is, or should have been apparent to the Court that the wife, and not the husband, was at fault; especially should this have been apparent in the light of the attempted reconciliation and its obstinate refusal. The wife had failed either to sustain her answer, or her cross-bill, and she had caused the husband unconscionably, to incur heavy expense. It was the duty of her solicitors, under the facts of the case, even as alleged in her cross-bill, to have advised her against filing an answer, which they are charged with a knowledge of knowing that she would be unable to sustain; and it was their duty to advise her against filing a cross-bill, the allegations of which, if true, were insufficient to entitle her to the relief prayed; and it was especially the duty of her solicitor, with a full knowledge of the testimony taken in said cases and with a full knowledge of the many offers of reconciliation, and with a full knowledge of the offer of reconciliation subsequent to the rendition of the oral opinion and prior to the signing of the decree, to have advised her to accept said offer and thus to avoid the necessity of any solicitors’ fees for this Court; instead of which, one of said solicitors admits in a part of this record that he, without conferring with her, and without her knowledge at the time, suggested to her said husband, that in his opinion, a reconciliation could only be effected upon his