Eberly v. Eberly

Per Curiam. Harry and Marguerite Eberly separated on July 21, 1967. On December 12, 1967 Mrs. Eberly filed a bill in equity for a divorce a mensa et thoro on the grounds of her husband’s desertion. He answered, denying his desertion and filing a cross-bill of complaint for a divorce from her on the grounds of her constructive desertion.

The court dismissed the cross-bill and granted the wife a divorce a mensa et thoro on the ground of desertion. 1 With respect to the question of alimony there was evidence adduced that Mr. Eberly was the owner of a motel in downtown Hagerstown which was encumbered with a mortgage which required payments of $1650 per month. He received a rental of $250 per month from a sublessee of a car-wash property which he and his wife leased as tenants by the entireties at a rental paid by him of $100 a month plus the taxes on the property. There had been a joint account with his wife in the amount of $9400 which had been changed to his name alone when they separated. He had made recent trips to Florida four or ¹²⁰ five times.

His taxable' income was as follows: 1964— $7,277, 1965 — $4,695, 1966 — $10,140. Business at the motel was off some 40% due to the construction of an interstate highway which by-passed the downtown area and diverted much traffic from U. S. Route 40 on which Mr. Eberly’s motel was located. The court in its opinion specifically stated its consideration of the fact that after the separation, but before the filing for the divorce, Mr. Eberly had allowed his wife to remain in the family home and paid the expenses on the house, had continued to give her $100 per month, had bought her a new car and had sent her to Florida for a vacation. The court set the alimony to be paid Mrs. Eberly at $200 per month.

On July 15, 1968 Mrs. Eberly filed a petition in the Circuit Court for Washington County for an increase in her alimony payments. The end result of this petition was the order of the court, dated July 10, 1969, increasing the amount of alimony to be paid to $300 per month. In making this decision the court had a wealth of information before it. There were depositions of both Mr. and Mrs. Eberly filed in the fall of 1968 and their oral testimony taken in June 1969.

In addition to the information brought out in the previous alimony hearing concerning the husband’s ownership of the motel, on which monthly mortgage payments were due, and the lease on the car-wash property as a tenant by the entireties with his wife, the court also received evidence as to Mr. Eberly’s ownership of an apartment-office property in Hagerstown from which he was receiving rentals ranging from approximately $200 to $300 per month, depending on whether the building was fully rented or not. The court also received testimony that the husband had no securities and no life insurance and that his total income was derived from the motel, car-wash and apartment property. That income, according to his tax return for 1968, was $9,287, on which he paid a tax of $1,527.00. Mrs. Eberly’s deposition and testimony showed that she ‘was receiving $200 a month from her husband, and lived in the family home on which Mr. Eberly continued ¹²¹ to pay the taxes and insurance.

However, she received no funds for the maintenance of the house, nor for utilities. These expenses, in addition to those for food, clothing, medical expenses and for her automobile amounted to over $500 per month. She admitted having taken $1000 from one of her husband’s safe deposit boxes and stated that she had used this money for living expenses. She also testified that from the time of the taking of the deposition in September 1968 to the hearing in June, 1969, the amount of her savings had dwindled from $3000 to $400.

In rendering its opinion raising the amount of alimony to $300 per month, the court considered the needs of Mrs. Eberly, finding that the $200 alimony payment was insufficient to cover her personal expenses, expenses for maintenance and repair of the house and medical expenses. The court also considered the $9,200 net income of Mr. Eberly and noted that the $14,000 deduction for depreciation of the motel and apartment property taken on his income tax return meant that his actual spendable income was over $23,000 that year. Thus the court found that an increase in alimony payments to $300 per month was fully justified. Appellant states in her brief that there was an appeal noted from this decision which was later dismissed after an “informal meeting” of the chancellor and all counsel.

On January 9, 1970 Mrs. Eberly began the third stage in this protracted litigation between herself and her former husband. She filed two separate suits in equity, one seeking an accounting for one-half the net rental income from the leasehold interest in the car-wash property which she and Mr. Eberly owned as tenants by the entireties, and the other seeking an increase in the alimony allowance which had been set by the court on July 10, 1969 at $300 per month. The cases were tried together on March 24, 1970 and the decision was rendered on June 8, 1970. The court held that it had considered the income from the car-wash property in setting the amount of alimony previously and that, therefore, Mrs. Eberly was not ¹²² entitled to a separate accounting for half the income from this property over and beyond the alimony payments she was to receive.

The court also noted that it had received information that Mrs. Eberly was employed and receiving a net income of $67.00 per week and accordingly reduced the alimony to $240 per month. Mrs. Eberly appealed. In arriving at its decision the court had before it essentially the same information as it had previously and was faced with the same problem, that is, reaching some rational compromise between the husband’s protestations that “I don’t have no money to spend” and the wife’s contentions that, since she “had helped make [the] wealth he has today”, she was not only entitled to a greater share of her husband’s income, but was greatly in need of it. The court heard testimony that Harry Eberly was no longer working since he had leased the motel for $2000 per month with a two year option to purchase at $275,-000.

Thus his entire income was derived from the motel lease, the rental from the apartment-office building and from the car-wash. The court was informed that for the month of February, 1970, his income had amounted to $2610, while his expenses, including his $300 alimony payment, had amounted to $2600.63. Mrs. Eberly, on the other hand, claimed that her average expenses were $564 per month for such items as utilities, food, clothing, automobile and medical expenses, and testified that, while her mode of living had not changed, her expenses had risen since her divorce from her husband. The court found that the facts warranted neither a separate accounting for the income from Mrs. Eberly’s half-interest as tenant by the entireties in the car-wash property nor an increase in the amount of alimony, but rather justified a decrease to $240 per month.

The appellant contends on appeal that the lower court erred in refusing to render an accounting for half the income of the leasehold property, claiming that she was entitled to summary judgment thereon, in refusing to increase the amount of support payments, and in failing to ¹²³ require Mr. Eberly to pay a reasonable fee to the appellant’s attorney for representing her in connection with the alimony proceedings. Whether Mrs. Eberly is entitled to an accounting for one-half the income from the car-wash property depends on her rights as a tenant by the entirety in this property. Such rights have often been stated by the Court of Appeals and recently in Howard v. Howard, 245 Md. 182 . There the Court quoted from Columbian Carbon Co. v. Kight, 207 Md. 203 where in the course of a historical review of tenancies by the entireties, the court said at 209: “It had accordingly been held by this Court since the enactment of those Acts [Married Women’s Property Acts, Code, Art. 45]. that the wife shares equally with the husband in the income from a tenancy by the entireties.” This statement, taken alone, would seem to indicate that Mrs. Eberly would be entitled to an accounting for one-half the income, for, while a divorce a vinculo would have converted the tenancy by the entireties into a tenancy in common with her husband, McCally v. McCally, 250 Md. 541 , the divorce a mensa had no effect whatsoever on the title to the property held by them as tenants by the entireties, Keen v. Keen, 191 Md. 31 .

However, the general rule as to the wife’s right to share equally in the income from property held as tenants by the entirety has been qualified by the Court of Appeals in particular circumstances. Thus in Wardrop v. Wardrop, 211 Md. 14, 21 , the Court said that: “It may be deduced as a general rule that courts of equity will assume jurisdiction to protect the interest of one or the other spouse in property held as tenants by the entireties. Each case will depend upon its facts and upon its appeal to the conscience of the chancellor. Quoting Collier v. Collier, 182 Md. 82, 91 .” ¹²⁴ In Wardrop , the Court stated the “firmly established rule” as to the wife’s share of income from property held by the spouses as tenants by the entireties, yet, because of the understanding which existed between the parties as to the occupancy, income and expenses of the properties occupied by them, and the alimony allowed the wife pending the trial and the appeal, refused to grant the wife the accounting of her share of the income from the property held as tenants by the entireties which she desired.

And in Collier v. Collier, 182 Md. 82 , the Court stated that generally courts of equity will assume jurisdiction to protect the interest of one or the other spouse in property held as tenants by the entireties but observed that each case will depend upon its facts and upon its appeal to the conscience of the chancellor. It refused to assume jurisdiction of property purchased by the husband, title to which he held with the wife as tenants by the entireties where her own conduct was responsible for the separation. In Brown