Silverberg v. Silverberg

Parke, J., delivered the opinion of the Court. On August 21st, 1921, Rose Cohan, a widow with an infant child, was married to Simon Silverberg, who was divorced, with an infant son, who was in the custody of the mother. Ro children were bom of this second marriage. Their married life was unhappy and, finally, they separated on December 11th, 1923, and since then have lived apart. •The wife, Rose Silverberg, instituted proceedings on December 19th, 1923, against her husband, Simon Silverberg, and his father and mother, Samuel Silverberg and Goldie Silver-berg, and the Old Town Rational Bank, the Union Trust Company, the Equitable Trust Company, the Chesapeake Building and Loan Association, the Whittier Building and Loan Association, the Merit Building and Loan Association and the Silverberg Building and Loan Association.

The principal objects of this bill of complaint were to secure an award of permanent 'alimony.,, on the grounds of cruelty of treatment, of excessively vicious conduct and of abandonment and desertion; and of an allowance of counsel fees and temporary -alimony pending the litigation because of the wife’s inadequate means. ⁶⁸⁵ In addition to making the allegations upon which the complainant based her right to temporary and permanent alimony and counsel fees, the bill of complaint made charges which need not be set out at length, but which were, in effect: (a) that the husband, Simon Silverberg, is the actual owner of the Chesapeake Building and Loan Association, which is a corporate cover for certain of his own personal business and financial affairs; and that in the other corporate defendants he either has a controlling interest as stockholder or as owner of their obligations or as a depositor, and that much of these assets are hidden under the name of some corporation or individual other than said Simon Silverberg; (b) that the said husband was the actual owner of a number of Valuable properties which, without consideration and in fraud of the marital rights of the wife, had been conveyed to the defendants, Samuel Silverberg and Goldie Silverberg, his wife, in one form or another, but that the said Simon Silverberg was the real owner thereof and the said Samuel Silverberg and Goldie Silverberg but the nominal owners for the secret use and benefit of the said Simon Silverberg; and (c) that the said husband, Simon Silverberg, is also the owner of money, stocks, bonds and other property of great value, which the complainant averred he was disposing of, or SO' intended, in the names of third parties for the express purpose of defrauding the complainant of her rights as his wife. On these allegations the ancillary relief prayed for was: (1) that the defendants be severally enjoined from making, or permitting to be made, any change in the status of any of the realty and personalty, which in various forms were alleged to be the property of the defendant, Simon Silverberg, although the indicia of title might be to the contrary, and from receiving and collection any rents, income or profits from any property; (2) that a receiver be appointed for all the property and estate mentioned in the bill of complaint, and to collect all the rents, income, and profits thereof; (3) that the said defendants make full discovery of all the property held by them in any manner or form for or on behalf of the said ⁶⁸⁶ Simon Silverberg, or for his use or subject to his order and control; and, also, of all financial arrangements and relations among them; and (4) that all deeds or other writings made by Simon Silverberg to Samuel Silverberg and Goldie Silverberg, his wife, or to either of them, in fraud of the marital rights of the complainant, be annulled and set aside. The answer of the defendant, Simon Silverberg, denied all the material allegations of the bill of complaint and made a counter-charge of abandonment and desertion. Samuel Silverberg and Goldie Silverberg, his wife, answered separately, but denied all the allegations of the bill of complaint that affected them in any way, or that imputed fraud or the possession of their son’s property, and ascribed the marital differences of their son to the conduct of his wife.

The answer of the Old Town National Bank, Union Trust Company, Equitable Trust Company, Chesapeake Building and Loan Association, Whittier Building 'and Loan Association, Merit Building and Loan Association and the Silverberg Building and Loan Association were severally filed, and every one denied the incriminating allegations of the bill of complaint so far as each one was concerned, and their respective answers to the discovery demanded showed an aggregate deposit by Simon Silverberg in all the institutions named of $6,321.93; an obligation of $10,577.88 by Simon Silverberg on notes discounted at the Equitable Trust Company; a mortgage obligation of $20,000 of Simon Silverberg and wife to the Union Trust Company; and a maximum obligation of Simon Silverberg of $55,000 to the Equitable Trust Company as guarantor with Samuel Silverberg and others for the Silverberg Building and Loan Association, the Whittier Building and Loan Association and the Merit Building and Loan Association, which had been respectively loaned under these guarantees the sums of $11,900, $11,000, and $10,000, aggregating $32,900. In this connection, it may be stated that Simon Silverberg’» answer denied the statement of the bill of complaint that he was a man of large ⁶⁸⁷ ineans and earning capacity, but asserted that he was in financial distress. ■ The answer of the husband was immediately followed by a cross-hill against his wife, charging her with abandoning and deserting' him on the day she accused him of a similar marital breach of duty, and praying for a divorce a mensa et ihoto. The wife answered denying the marital accusations of the husband’s bill of complaint. The parties took the testimony in open court.

The decree dismissed the cross-hill of Simon Silverberg, and dismissed the bill of Rose Silver-berg against all the defendants except Simon Silverberg, the husband, and Samuel Silverberg and Goldie Silverberg, his parents. The decree annulled a deed frofm Simon Silver-berg and Rose Silverberg, his wife, to Samuel Silverberg and Goldie Silverberg, bis wife, dated December 11th, 1923, and recorded among the Land Records of Baltimore City in Liber S. C. L. ISTo. 4118, folio 124 etc., conveying what is known as the Silverberg Building. The decree awarded Rose Silverberg permanent alimony at the rate of $150 a month, payable in equal instalments quarterly, accounting from December 17th, 1924, and the sum of $2,000 for the use of her counsel as a fee, and imposed the costs upon the husband. The decree was passed on December 29th, 1924, and on February 9th, 1925, an attachment was issued in equity on this decree and laid in the hands of the Equitable Trust Company, where the husband had a deposit of about $600 due him personally; and the writ was also laid in the hands of the Merit Building and Loan Association to attach cer^ tain shares of stock owned by the husband.

The husband thereupon filed a petition asserting that he had paid $350 on account of the fee of $2,000, and had tendered another $150 on account, hut it was declined and counsel refused to accept less than $1,650. The husband asserted that $500 was the maximum counsel fee allowable, and that be should not be required to pay more, unless and until the matter should be so adjudged on appeal; and he asked that the chancellor ⁶⁸⁸ dissolve the writ of attachment on his indemnifying the counsel against any loss which they might sustain by the dissolution of the attachment. The chancellor granted this petition, provided that the husband bring into court $1,650 to be deposited at interest and to answer the claims of the attaching creditors when and if the decree should be affirmed by the Court of Appeals. The sum was forthwith brought into court and deposited accordingly on February 12th, 1925.

An appeal was entered, from the decree passed on December 29th, by Simon Silverberg, Samuel Silverberg and Goldie Silverberg, his' wife, three of the defendants to the original bill, and by Simon Silverberg as the plaintiff in the cross-bill. And Rose Silverberg, also-, appealed from so much of the decree as dismissed the bill against the defendants, the Chesapeake Building and Loan Association, Merit Building and Loan Association and the Silverberg Building and Loan Association; and “so much thereof as fails to order a payment of more than o-ne hundred and fifty dollar's per month as permanent alimony, and so much thereof as fails to allow a sum in excess of two thousand dollars as counsel fee, and so much thereof as denies the remedies and relief prayed for in'said bill of complaint, and not in said order and decree specifically provided for.” Ata. appeal was also taken from the order of February 12th, 1925, dissolving the attachment on condition that $1,650 be paid into court. 1. The first question confronting the Court is whether or not the appeal of Rose Silverberg will be entertained. And this question involves two points.

In the first place, the appeal is expressly limited to so much only of the decree as does not give to Rose S-ilverberg relief toi the extent she asked; and, in the second place, the appellant includes an appeal from an order passed subsequent to the decree of December 29th. The plaintiff under the first bill of complaint was entitled to an appeal from the decree of December 29th, and all previous orders which had been passed in the cause would have been open for review on that appeal, as no other appeal had been taken in the cause. Code 1924, art. 5, secs. ⁶⁸⁹ 32, 31. Hendrickson v. Standard Oil Co., 126 Md. 577, 581 .

Her appeal was not from the decree of December 29th, nor even from any integral part thereof, but it accepted the decree to the extent that it was favorable, and, while retaining the benefit of the decree, attempted to have it reviewed because the lower court did not extend the relief to the degree desired. The decree was not so separable for the purpose of an appeal. The plaintiff, Rose Silverberg, had no right to hold fast to what the decree had given her, and, at the same time, seek an enlargement of the relief awarded her by the decree. To hold differently would be an arbitrary interpolation into the statute of a right not thereby granted, and would have an evil effect through the consequent encouragement to speculative appeals.

As an illustration of the possibilities presented by splitting a decree, we find on this record a decree for the payment of a counsel fee of two thousand dollars, an attachment issued under the decree to secure the payment of this fee, and an appeal from so much of the decree “as fails to allow a sum in excess of two thousand dollars as counsel fees.” In other words, an acceptance of the decree in so far as it is beneficial, and a rejection only so far as it disappoints. The Court has neither the power nor