Rand v. Rand

Gilbert, J., delivered the opinion of the Court. Florence Mitchell Rand (Florence), appellant and cross-appellee, and Robert Collom Rand (Robert), appellee and cross-appellant, are both dissatisfied with some provisions of a decree of divorce entered in the Circuit Court for Montgomery County. The parties were married on January 26, 1942 in Lexington, Kentucky. Since that time both have been residents of Maryland.

Three children were born as a result of the marriage; however, only one child, a minor, age 13, is the subject of the child support order here present. In October, 1964, the parties separated and have continued to live separate and apart since that time. Robert filed a Bill of Complaint in July, 1970, seeking a divorce a vinculo matrimonii on the ground of five years continuous uninterrupted separation. 1 ⁵⁷⁶ The testimony clearly established the validity of the ground for divorce and that portion of the decree is not under attack. When Florence was called as a witness, Robert objected to her being allowed to testify as to her need for alimony, child support, and her request for reimbursement of an orthodontic bill contracted on behalf of the minor child.

The reason assigned for the objection was that Florence had requested alimony, child support and the reimbursement of the orthodontic bill in her Answer to Robert’s Bill of Complaint, 2 and had not filed a Cross-Bill affirmatively seeking such relief. The court allowed the testimony over objection. Robert had, at the time of the trial, a gross income of $2,057.00 per month. He claimed deductions of $852.00, thus leaving him a “take home” income of $1205.00.

Robert asserts that his monthly expenses are $1077.00 (including the child support payment of $250.00 and $100.00 per month voluntary payments made to his son and daughter, respectively). Therefore, Robert maintains he is left with $128.00 per month after all expenses for his cost of living. Robert’s financial statement as presented in evidence also indicated that he has $11,050.00 in bank accounts. Florence is a school teacher and receives a salary of $790.00 per month, less deductions of $340.00.

She asserts that her total expenses for herself and her child are $790.00, resulting in a deficiency of $340.00 a month. This figure, however, does not allow for the $250.00 per month that Robert has been paying for the support of the minor child. After the separation of the parties, Florence continued to maintain what was the marital domicile and apparently paid off the mortgage so that the property in which she and the child reside is unencumbered by a mortgage lien. Florence has also paid the real property taxes and ⁵⁷⁷ other maintenance costs of the house.

Seemingly, Robert is also in title to the house with Florence. The house, according to the testimony of Florence, is valued at approximately $28,000.00. Florence did not testify as to any specific sum that she needed in the way of alimony, but said, “Whatever is fair. That is all I can say; whatever is fair.

I have no idea what would be fair. All I know is I don’t think I should be left to live below the standard of Montgomery County. And I must under my present salary.” Robert objects to the payment of the orthodontic bill or any portion thereof because he was not consulted prior to the commencement of the orthodontist’s work on his daughter, although he admittedly was aware that the services were being performed, and he likewise objects because he asserts that the $250.00 per month child support is sufficient, in his opinion, to include payment of the orthodontic bill. Florence, in her testimony, itemized the child’s needs for clothes, food and other usual expenses.

At the conclusion of the testimony and argument of counsel, the Chancellor granted Robert a divorce, awarded Florence $75.00 per month alimony, declined to alter or modify the child support payment, ordered Robert to pay Florence the sum of $650.00 in partial reimbursement of monies she had expended in payment of the orthodontic bill, 3 and further ordered the payment of $600.00 to Florence’s counsel. Florence here contends: 1. The award of alimony is inadequate. 2. The amount of child support is insufficient and Robert should have been required to pay the orthodontic bill in its entirety and not just a portion thereof.

Robert argues: 1. No alimony should have been awarded. 2. The amount of child support is adequate. ⁵⁷⁸ 3. The Chancellor erred in requiring Robert to pay any portion of the orthodontic bill. 4.

The amount awarded as counsel fee should not have been allowed. ALIMONY Robert argues that the Chancellor should not have awarded alimony to Florence because she did not seek the same by way of a Cross-Bill. He cites Ballan v. Ballan, 251 Md. 737 ; Keys v. Keys, 251 Md. 247 ; Woodham v. Woodham, 235 Md. 356 , and Henderson v. Henderson, 199 Md. 449 , as authorities for his contention. Our review of those cases does not indicate to us that they are applicable to the situation in the instant case.

In Bailan, Judge Singley discussed constructive desertion and equity appeals. At page 743 he said: “In her brief, Mrs. Bailan seeks to have the amount of the fee allowed her counsel increased from $250. to $750. Since no cross appeal was taken, this question is not properly before us. Rule 812 a; * * Keys holds that where no cross appeal is filed, the Court of Appeals will not consider a statement in appellee’s brief to the effect that he “hereby appeals from the orders charging him with payment of appellant’s costs incident to this appeal * * The Woodham ruling modified an order of the trial court that had increased sua sponte child support payments, where no request was made for such an increase.

Henderson involved a Bill for divorce a mensa et thoro and a Cross-Bill for an annulment. The Chancellor granted the divorce a mensa et thoro and dismissed the Cross-Bill. There, the Court was concerned with the validity of a common law marriage entered into in a jurisdiction where it was recognized. The Cross-Bill had alleged that the parties were not married because the husband (cross-plaintiff) was not divorced at the time he married the plaintiff and cross-defendant in Iowa.

The ⁵⁷⁹ wife (plaintiff and cross-defendant) answered the Cross-Bill and alleged that the parties lived together as husband and wife in the District of Columbia, where common law marriages were valid, after the dissolution of the husband’s first marriage and subsequent to the purported formal marriage in Iowa. The factual situation in Henderson is inapposite. Judge Delaplaine in Henderson , at page 461, said: “A cross-bill is a proceeding to obtain a complete determination of a matter already in litigation in the court. As a general rule, whenever the defendant relies upon the equities of his case for anything beyond defense and seeks affirmative relief, he should file a cross-bill.” Appellant gleans from this statement in Henderson that Florence’s failure to file a Cross-Bill claiming alimony and reimbursement of the orthodontic bill precludes her from obtaining the same.

No such argument is advanced insofar as the child support is concerned. We think the question of alimony was properly before the trial judge. Article 16, § 3, of the Maryland Code provides: “In cases where a divorce is decreed, alimony may be awarded.” An examination of the case law in this state fails to indicate any case in support of Robert’s position insofar as alimony is concerned. While the specific point here raised was not present in Buehler v. Buehler, 229 Md. 317 (1962), the Court of