Newmeyer v. Newmeyer

⁴³³ Hammond, J., delivered the opinion of the Court. These are cross-appeals from a decree granting the wife a divorce for the adultery of the husband, giving her custody of the live year old daughter, awarding her $100.00 a week as alimonjr and support for the child, dividing the personal property, and awarding a fee to counsel for the wife. The husband did not below, and does not here, contest the divorce or the custody of the child. He says the alimony and support award of $100.00 a week and the counsel fee of $2,250.00 for services below and in this appeal are disproportionate to his means and grossly excessive.

The wife seeks here, as she did below, $150.00 a week for her and the child, and defends the counsel fee given her lawyer. Three items of personal property are in dispute. The chancellor awarded the wife the marital “king-size” bed, a half interest in four debentures of Fidelity Credit Company, and a station wagon the husband had given her for Christmas free and clear of the unpaid balance of the purchase price still due. The husband contests, and the wife supports, the propriety of the action of the chancellor as to these items.

When the 266 pages of the record extract are brought into focus they reveal this picture. The couple married in 1947 and for some five years lived in an apartment in New Jersey where the husband’s job was finding outlets for vending machines. In 1952 a daughter was born and they moved back to Harford County. Both his mother and father, who are separated, are well to do, and after the birth of the child the mother gave him a job in her ladies’ clothing store in Aberdeen, paying him approximately $15,000 a year.

This employment terminated in 1956. The wife says that this was for the purposes of the litigation so that his income would not justify a substantia] award of alimony. The husband says it was because of his bad back, and offered some medical support for this contention. The husband’s counsel at the argument said that it was because the ladies of Aberdeen would not patronize a mercantile establishment whose manager was an admitted adulterer.

With the help of his father and mother, the husband has acquired considerable personal and real property, most, if not all, since the birth of his daughter ⁴³⁴ in 1952. He is of a speculative bent, and his estate, which is mortgaged to the hilt, produces a high rate of return. The standard of living of the couple rose after they returned to Maryland, and at the time of the separation, which occurred when the wife discovered the husband’s adultery in July of 1956, was quite high. Most of the comforts and luxuries were paid for with borrowed money.

The parties differ sharply as to both the income and net worth of the husband. The wife claims each to be several times that admitted by the husband. The chancellor made no finding of fact as to either income or net worth and the award of $100.00 a week for support of the wife and child approximately split the difference between the $60.00 the husband had agreed to pay and the $150.00 the wife wanted. No good purpose would be served by our analyzing in detail the husband’s income and net worth.

It is sufficient to say that from his investment assets he has a gross income of some $9,200 a year and pays approximately $3,200 a year in interest. In estimating his income for the consideration of alimony and support, there must be added to the $6,000 that remains whatever he earns or has a reasonable expectation of earning. He says this is now only $2,500 a year. We find nothing in the record to support a finding of present total income, so estimated, of more than $12,000 a year.

His net worth is admitted by him to be approximately $59,000, and is finally estimated by the wife — a considerable reduction from her original estimate — to be $80,000 or $85,000. The wife has an income of $200.00 a year and capital assets of some $10,000, and the child, by gifts, has acquired an estate of some $9,000. Bearing in mind the role this Court plays in reviewing the award of alimony by the chancellor, as restated in Donigan v. Donigan, 208 Md. 511, 521 , and the factors to be considered' — the husband’s wealth and earning capacity, the-station in life of the parties, their physical condition and ability to work, the length of time they have lived together, the circumstances leading up to the divorce and the fault that destroyed the home, Waters v. Waters, 191 Md. 436, 440 ; Donigan v. Donigan, supra — we think that no more than ⁴³⁵ $80.00 a week is justified. If the husband is reemployed by his mother or if his income increases for any