Lewis v. Lewis

Henderson, J., delivered the opinion of the Court. On March 7, 1956, a husband sued for divorce a vinculo on the ground of voluntary separation in December, 1952. The wife answered, denying that the separation was voluntary, alleging that the husband deserted her on the date mentioned, and praying alimony. On May 15, 1956, the Chancellor passed an order awarding alimony pendente lite of $250 per month.

On January 28, 1958, the wife filed a cross-bill for divorce a mensa on the ground of desertion, praying alimony. After hearing, the Chancellor on July 25, 1958, dismissed the original bill, granted the wife a divorce a mensa, and ordered payment of permanent alimony in the amount of $500 per month, and a counsel fee of $1,000. The husband appealed on August 22, 1958, and the wife filed a cross-appeal on August 25, 1958, contending that the Chancellor should have allowed alimony of $1,000 per month. Subsequently, upon a show cause order to compel payment of the alimony order, the appellant petitioned the court to modify the order for permanent alimony pending the appeal and to reinstate the order for alimony pendente lite in the lesser amount.

The Chancellor declined to do so, but there was no appeal from that order. The appellant contends that the court erred in so ruling. If we assume, without deciding, that the point is properly before us, we find no error. It would seem that the previous order for alimony pendente lite, passed more than two years before the final order, was superseded by the final decree.

Cf. Rethorst v. Rethorst, 214 Md. 1, 15 . The Chancellor properly made a redetermination of the amount necessary for the wife’s needs, in the light of the financial status of the parties at the time of the final decree. ³¹⁶ It is well settled that the entry of an appeal from a final decree does not stay the operation of an order for the payment of alimony. Berman v. Berman, 191 Md. 699, 706 ; Daiger v. Daiger, 154 Md. 501, 508 .

A wife is entitled to the. continuance of alimony during the pendency of an appeal to this Court and until its final disposition. The Chancellor has jurisdiction to consider modification of the award, despite an appeal. Hornstein v. Hornstein, 195 Md. 627, 638 ; Dougherty v. Dougherty, 187 Md. 21, 33 . Ordinarily, that would only be appropriate where there is a change in financial status.

Hughes v. Hughes, 216 Md. 374, 377 . We find no abuse of discretion in his failure to modify the award. The appellant filed in this Court a motion to dismiss the cross-appeal on the ground that the wife is barred by estoppel or waiver from claiming an amount larger than that awarded, because she accepted the payments ordered. We reserved ruling on the motion.

We assumed in Brennecke v. Brennecke, 213 Md. 447 , that a cross-appeal would lie challenging the sufficiency of a counsel fee, although the point was not raised. Some support for the contention is found in Silverberg v. Silverberg, 148 Md. 682, 689 . But we are unwilling to follow the reasoning of that case that the appeal involved splitting ■ the decree and attempting both to accept and reject its terms. The cross-appellant could not contest that portion of the decree that was in her favor.

Cf. Riley v. Naylor, 179 Md. 1, 8 ; Inter-City Co. v. Balto. County, 218 Md. 80, 85 . Moreover, in the SUverberg case the decree set aside a deed from the husband to third parties and granted benefits to the wife over and above an award of alimony.

There is a split of authority on the point in the cases in other States. Some of them are distinguishable on the facts and involved property settlements and releases by the wife. In Harris v. Harris, 89 F. 2d 829 (D. C.), the court held that the wife was barred, but stated that she would have been entitled to a new award of alimony pendente lite, pending appeal. We find no support for such a distinction in the Maryland cases.

Cf. Nicodemus v. Nicodemus, 186 Md. 659, 668 , (modified as to the power to stay by Berman v. Berman, ³¹⁷ supra). The Chancellor in the instant case made a redetermination as to the amount necessary for the wife’s support pending the appeal as well as thereafter. The rule is stated in general terms in Moorman v. Moorman, 129 N. W. 13 (Mich.), in 2 Am.

Jur., Appeal and Error, § 219, and in 27 C. J. S., Divorce, § 284, note 13, but it has been repudiated or greatly