Lott v. Lott

Carter, J., delivered the opinion of the Court. The appellee and cross-appellant, Velma Lott (wife) was awarded a divorce a vinculo from the appellant and cross-appellee, Leymond W. Lott (husband) on May 28, 1970 by the Circuit Court for Howard County. At the time of the decree the husband was directed to pay the monthly sums of $250 alimony and $200 support for the only child of the parties, Edmund Lott then about 9 years of age. On September 14, 1970 the decree was modified to require the husband to pay the wife an additional sum of $40 per week to defray the expense of affording their son treatment for dyslexia (impairment ⁴⁴² of the ability to read).

On June 24, 1971 the wife filed a petition to increase the amounts of alimony and child support. The petition was duly heard and a modification order and supporting opinion were filed on February 15, 1972. The order increased the monthly alimony from $250 to $332.50 and the monthly child support from $200 to $266. The $40 weekly payment for tutoring services for the son was not disturbed.

Both parties appealed to this Court. The husband contends (1) that the trial court was without jurisdiction to increase the alimony and child support because there was no showing of a substantial change in the circumstances of both parties since the original award, and (2) that the increases were not justified under the circumstances. The wife contends that the trial court committed obvious error in computing the increase of alimony and child support. FACTS The parties were married June 22, 1952 and lived together until 1968.

In the early years of the marriage the wife worked and assisted her husband in defraying the cost of his medical education. He began the practice of medicine about 1962 and soon enjoyed a lucrative income. The parties ultimately purchased a $65,000 home and their living conditions were correspondingly oriented to persons living in similar circumstances. In 1968 the husband requested the wife to allow him a divorce and she refused.

At that time he was about 39 years of age and his wife was 38. Thereafter he left the State and went West with his paramour and her child by a former marriage. After remaining away for about nine months and being unable to procure a license to practice medicine in a foreign jurisdiction, he returned to Maryland with his paramour, her child, and a child born to them. During the husband’s absence the expensive home of the parties was sold under a mortgage foreclosure and ⁴⁴³ the wife was required to move to a modest apartment.

Soon after the husband left, the wife, of necessity, became employed as an assistant in the office of the Clerk of the Circuit Court for Howard County. Her take home pay was $70 per week. It was substantially the same figure at the time of the supplementary decree. She has no assets of consequence other than her wages.

Following the divorce (May 1970) the husband married his paramour. They now have a household consisting of one child of hers by a former marriage and their two children. At the time of the divorce the husband had an annual net income before taxes of $24,048. After his second marriage he purchased a home for $62,500 in which he now resides with his second family and maintains an office for the practice of medicine.

This property is subject to a $50,000 mortgage. In his application for this mortgage loan in April 1971, he listed his yearly earnings as $32,000. His accountant gave his net income for the nine-month period, January 1, 1971 to September 30, 1971 as $23,591.77. This net figure was computed on the basis of his gross cash income from medical practice less expenses.

Projecting this figure for the remainder of 1971, the anticipated net income of the husband before taxes for the calendar year 1971 would amount to $31,455.60. The husband filed an itemized list of his indebtedness which totaled about $16,000. This figure included loans from banks, balances due for office equipment, plumbing repairs to the home, and attorney’s fees. He is also presently paying $434 per month on the mortgage indebtedness against his home.

It was conceded by the wife that her needs had not substantially changed since the date of the original award. ⁴⁴⁴ LAW SUBSTANTIAL CHANGE IN CIRCUMSTANCES OF BOTH PARTIES IS NOT A CONDITION PRECEDENT TO COURT’S JURISDICTION TO MODIFY AN ALIMONY AWARD. The husband’s contention, that the court was without jurisdiction to entertain the wife’s petition for an increase in alimony because there was no showing of a substantial change in the circumstances of both parties since the original award, is without merit. It is well settled in this State that a court of equity may, for sufficient cause shown, modify a decree for alimony at any time. In so doing, however, it may not relitigate matters that were or should have been considered at the time of the initial award.

In so holding the Court of Appeals said in Stansbury v. Stansbury, 223 Md. 475, 477 , 164 A. 2d 877 : “* * * Tt is not within the province of this Court, in considering a petition for modification, to review the propriety or sufficiency of the original award.’ Warren v. Warren, 218 Md. 212, 214 . In Hughes v. Hughes, 216 Md. 374, 379 , Judge Henderson, for the Court, adopted the words of 17 Am. Jur. Divorce and Separation Sec. 719, p. 764, that * * all questions concerning alimony which are or ought to be determined in a divorce proceeding are res judicata in a subsequent proceeding in the same jurisdiction.’ 1 “It is, of course, equally established that the equity court which made the original award of ⁴⁴⁵ alimony may modify that award if thereafter there comes about material change in circumstances which justify the action.

Langrall v. Langrall, 145 Md. 340, 345 ; Moore v. Moore, 218 Md. 218 ; Warren v. Warren, supra. In this jurisdiction most of the cases concerned with the modification of alimony that have reached the appellate courts have involved situations where there was a substantial change in the circumstances of both parties. It is clear, however, from the principles enunciated and applied in these cases and from the uniformly accepted rule in such matters that a substantial change in the circumstances of both parties is not a necessary condition to the court’s jurisdiction or authority to modify an initial award of alimony. In Winkel v. Winkel, 178 Md. 489 , 15 A. 2d 914 , the Court of Appeals discussed at length the principles or rules of law governing the fixing of the amount of initial alimony as well as any modification thereof.

In reducing the amount of alimony upon the wife’s petition for an increase in this case, the Court said at 498-499: “In the matter of alimony, the chancellor, however, must act in the present in reference to a variable ability to support. * * * [/]/ there be faculties and alimony be awarded, and the faculties should later increase or decline or utterly fail, the amount of the alimony may be varied accordingly or rescinded. * * * The doctrine is founded in an equality of right and obligation, and its enforcement is indifferent to whether the change is in the relief of one spouse, so long as the rights of the other are not denied. It is patent that of its nature alimony is in amount subject to variations from time to time as the circumstances, needs, and pecuniary condition of the parties change. “* * * The obligation must be correspondingly ⁴⁴⁶ fulfilled out of the husband’s contemporaneous faculties, * * (emphasis added) These enunciated principles were applied by the Court in determining the validity of the decree modifying the amount of alimony. In so doing the Court said at 508: “With the principles ascertained and in mind, the court, thus advised and governed, * * * finds no sufficient basis for any modification of the decree of the court in reducing the alimony * * (emphasis added) In Stevens v. Stevens, 233 Md. 279 , 196 A. 2d 447 , the Court of Appeals denied a husband’s petition for a reduction of alimony on the basis that there was no showing of a substantial change in the circumstances of either party. In commenting on when modification is justified the Court, speaking through Judge (later Chief Judge) Hammond, said at 282: “* * * It has long been established in Maryland that an equity court can modify a decree providing for the payment of alimony when changed circumstances indicate that it should be modified, * * (emphasis added) In discussing the general rule it is stated in an annotation titled “Modification of Alimony Decree”, 18.

A.L.R.2d pp. 13-91 at p. 16: “§ 2. General rules. It is a ground — and perhaps the most common ground — for the modification of a decree for alimony or maintenance that there has been a substantial change in the financial condition of the husband or