Kidwell v. Kidwell

Marbury, C. J., delivered the opinion of the Court. A husband appeals from a decree ordering him to pay permanent and temporary alimony to his wife, counsel fees to her solicitor and the costs of the proceedings. The appeal is not based upon the amounts awarded, although some contention is made that alimony pendente lite and counsel fees should not have been allowed. This, however, is interwoven with the general position of the appellant that the chancellor should have dismissed the bill, and it will be so treated here.

No divorce is asked by the wife, but in order to sustain her claim for alimony, her allegations and proof must be sufficient to justify a divorce, had one been requested. WinJcel v. Winkel, 176 Md. 167 , 4 A. 2d 128 . We must, therefore, examine the record to see if this ⁶¹⁶ requirement has been met. There is not much factual dispute, although the causes and implications are contested.

The parties were married in 1921, and had two children, a son now 25 years of age and a daughter, 21. The wife is now 46, the husband 48. They occupied separate rooms for several years before 1937, and have not had intercourse since that year. Each claims to have made the last advance and to have been repulsed by the other.

One rejection seems to have been sufficient, and neither claims to have made further efforts. They continued to live in the same house, however, until January, 1945 when the husband went to a room in a house owned by him in another part of Hagerstown, and has lived there ever since. In his testimony he stated that he worked hard and could not stand arguments in the morning, “and then go to work on it”. On cross-examination he said he left “because things were not going-right; we did not get along”.

He also stated that the reason for his marital difficulties was his wife’s refusal to have intercourse with him, and money. He said when he left he had not made up his mind definitely that he was leaving the household. He did not know that his mind was made up at any one specific time, “it crystallized as time went on.” He also said his wife had told him to leave, and that finally he did. He said he might go back and live with his wife “if I were the boss of the household”.

The wife testified that if her husband would do what is right and come back into the house and live as husband and wife “that is all right with me”. The appellant seems to have paid considerable money for the support and education of his children, but he was not so free with his allowance to his wife. His income, after taxes, in 1937, was $3500, in 1938, $4100, in 1939, $4700, in 1940, $6400, in 1941, $9100, in 1945, $10,800, and in 1946, $12,400. He testified that in 1943 he paid $1400 for his wife’s maintenance, in 1944, $1290, and in 1945, $1850.

In this last year he put a new roof on the house and painted it. In 1946, he paid for her ⁶¹⁷ $1200 and in 1947, $945. He paid insurance, interest on mortgage, taxes and bills