McCann v. McCann

Parke, J., delivered the opinion of the Court. In a proceeding wherein there was an original bill for divorce a mensa et thoro by the wife on the ground of abandonment and desertion, and a prayer for the care and custody of a minor daughter, and later a cross-bill by the husband seeking a divorce a mensa et thoro on a similar charge against the wife and the custody of the minor, the chancellor, on January BO, 1933, dismissed the complaint of the wife, but retained jurisdiction over the minor child and decreed the divorce a mensa et thoro of George It. McCann, the husband, from the wife, Zoe L. McCann. The decree awarded the care and custody of the minor child, Evelyn Z. McCann, to the mother from March 1st, 1933, with the right of the father to see the child at all reasonable times, and ordered the father to pay to the mother the sum of four dollars a week for the care and maintenance of the child, subject, as to all the terms of the decree with respect to the child, to the further order of the court.

The husband became dissatisfied with the conduct of his wife in reference to his opportunities to see the child, and, on May 31st, 1933, filed a petition for a modification of the decree with respect to the custody of the infant. The mother answered, and the question was heard before the chancellor, and, after hearing the witnesses, the decree was ratified and confirmed on October 19th, 1933, in so far as it concerned the custody of the child. Upon further consideration, the court, on October 31st, modified its decree by providing: That the infant daughter should remain with the mother at her home in Allegany County, Md., every year from September 1st, the opening of the fall term of school, until June 1st, the ending of the spring term of school; that the infant should be delivered by the father to the mother at her home at the beginning of every term and called for at its ending; that during the period from June 1st to September 1st ¹⁷⁰ of every year the infant should remain with the father; that during the period the child is with the mother, the father should have the right to visit the child and have her with him twice during every month, and the child shall not be removed from the county during this period and the visits shall not interfere with the child’s schooling; and while the infant is with the father the mother shall have the right to Visit the child and to have the child with her twice in every month for one day but, during this period, the child shall not be removed from Baltimore City. The wife appealed from this decree of October 31st, 1933, and petitioned on February 19th, 1934, for an order requiring the husband to pay the costs of her appeal and a reasonable counsel fee for her solicitors.

The husband answered and denied the right of the wife to these allowances, and testimony was offered before the chancellor, who' on March 6th, 1934, refused the application and dismissed the petition. On March 9th, 1934, the wife took an appeal from this order, and her two appeals are on this record. There is no difficulty in sustaining the order from which the second appeal is taken. The husband had obtained a decree a mensa et thoro from his wife.

The time for an appeal from that decree was suffered to pass, and the mother’s resistance to the motion of the father for a modification of the decree of court awarding her the care and custody of the infant was, on the face of the pleadings, in her own defense, and not primarily in behalf of the infant. She answered in her own name by a solicitor whose appearance was for her personally, and throughout the entire subsequent proceedings the litigation was conducted with the father and mother as the adverse litigants. The application for the payment of the costs of appeal and counsel fees was made after the mother had entered the appeal in her own name, and it was grounded on her own financial position, which she averred rendered her unable to prosecute the appeal or ¹⁷¹ to compensate her solicitor for his services. There seems to be no equitable basis for the petition, and the chancellor’s order refusing to require the father to advance the costs of appeal and counsel fee and dismissing the petition will be affirmed.

See Carter v.