Kennedy v. Kennedy

McWilliams, J., delivered the opinion of the Court. As this struggle drew to a close the trial judge made known his intention to allow wife’s counsel a fee of $2500. A supplementary hearing, limited to a reconsideration of the amount of the fee, was held on 19 May 1967. The wife, having already paid counsel $3000, pressed for an allowance of $5500.

The husband protested, claiming inability to pay $2500. The final decree, passed 3 days later, dismissed the husband’s bill, divorced the wife a vinculo from the husband, awarded custody of the 3 children to the wife, directed the payment of $50 per week towards the support and maintenance of the children and allowed a counsel fee of $2500. The wife’s cross-appeal is from the trial judge’s refusal to allow $5500. The husband is nearly 40 years old.

He completed high school and attended college for a few years. He has no special skills. His annual income reached its highest level, $8300, in 1962 ⁴⁶⁴ when he was a member of the Zoning Board of Baltimore City. In 1964 it dropped to $940, in 1965 it rose to $4477, and in 1966 it was down again to $1308.

At the time of the hearing his “take home” pay was $78 per week. In 1957, upon the death of his mother, he came into the possession of an estate valued at $12,000 to $15,000. What remains, worth about $7500, is being held by banks as security for loans. His debts total more than $6000.

His Volkswagen is unencumbered and he owns a watch that cost $75. The record before us indicates a net worth of not more than $3000 to $4000. He lives with a sister in Annapolis. The trial judge, in a short informal opinion, gave the reason for his action.

He said: “Well, gentlemen, Mr. Kennedy may be as poor as a churchmouse, and if I am governed strictly by the law as laid down by the Court of Appeals, I am afraid Mr. Tabler [counsel for the wife] is in a real quandary, but when I take the physical facts of this case, the time which I know was devoted to the trial of it here in this court, of practically five full days, and I mean five full ones, one of which ran from 9:30 in the morning until 4 o’clock in the afternoon, and knowing what the daily rate is for counsel’s appearance in court, I still feel that my $2500 figure is just, fair and equitable, and I am not going to reduce it. “If it is going to go to the Court of Appeals, and if they adopt the same attitude they have in other cases, and in their wisdom reduce it, they are going to have to do it, gentlemen. I think it is proper for counsel to be paid a proper fee. “I think over the time, Mr. Kennedy, with his good name, his ability, his knowledge, his education, his personality, can well get a better job than a laboring job, and while it is true that the Court of Appeals has said that is not the test, I would feel in this instance that to allow a fee commensurate with what his earnings are, at this point, would be an insult to the legal fraternity, and I mean it sincerely, gentlemen. I am going to make it $2500, and that is it.” ⁴⁶⁵ It must not be supposed that by differing with the learned trial judge we intend an “insult to the legal fraternity” but it is a dismal fact, as he himself acknowledges, that our decisions do not support his action. In Kapneck v. Kapneck, 235 Md. 366 , 201 A. 2d 798 (1964) the husband’s monthly income at the time of trial was $1163.60.

We reduced a $7500 counsel fee to $3000. In Hall v. Hall, 238 Md. 191, 197 , 208 A. 2d 593 (1965), we said : “We believe that a total fee of $2500.00' for conducting the proceedings below and on appeal, to be paid by a man whose net income after payment for his wife’s support is about $600.00 per month, is excessive, and that a total fee of $1000.00 for services rendered here and below is reasonable.” We approved an award of $500 in Cupps v. Cupps, 245 Md. 700 , 227 A. 2d 225 (1967), where it appeared that the husband’s salary was $9000 per annum and that he had no other income. In Newmeyer v. Newmeyer, 216 Md. 431, 435 , 140 A. 2d 892 (1958), where the husband had a gross investment income of $3200, was earning $2500 per annum and admitted a net worth of $59,000, we reduced the counsel fee from $2250 to $1500. Judge Hammond (now Chief Judge) said, for the Court: “The setting of a fee for the wife’s lawyer involves difficulties comparable to those of setting a proper amount of alimony.

The wife says that it was necessary for her counsel to do extensive work in ascertaining her