Stansbury v. Stansbury

Hammond, J., delivered the opinion of the Court. This appeal is concerned with an oft recurring phase of the war of the sexes—the primeval struggle for division of the husband’s financial productivity after the couple have separated. When the husband, the appellee, deserted his wife, the appellant, he agreed to pay her $100.00 a week. Temporary alimony was set at $75.00 a week when her bill for divorce was filed, and on June 25, 1959, Judge Niles granted her an a mensa divorce and awarded permanent alimony of $125.00 a week.

An appeal was noted on July 2, and the time for filing the record in this Court later was extended to September 28. Just before this deadline, the husband employed a new lawyer who dismissed the appeal and filed a petition for modification of the decree of June 25, alleging “a drastic change” in the financial condition of both the husband and the wife. The matter came on for hearing before Judge Cullen, who in an ordinary course of rotation of the members of the Supreme Bench had succeeded Judge Niles in the equity court. Judge Cullen estimated the husband’s income from his busi ⁴⁷⁷ ness at $10,000 a year instead of the $20,000 which Judge Niles had found, and reduced the alimony from $125.00 a week to $75.00 a week.

When his decree was appealed by the wife, Judge Cullen, on February 19, 1960, refused to order the husband to advance the cost of preparing the record, saying that there was no reasonable ground for the appeal and that the wife had independent means. The appeal is from both the decree reducing the alimony and the order refusing the costs. Since the dismissal of the appeal from the decree of June 25 made that decree final and in full force and effect, it must be accepted as having been correct when it was entered. “It 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.” It is, of course, equally established that the equity court which made the original award of 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. The case turns, then, on whether there had occurred such material change in conditions as to justify Judge Cullen in reducing the alimony set by Judge Niles.

In his answer to the original bill of the wife for divorce and alimony, the husband alleged that his business (Nationwide Service, Inc., an employment agency at the executive level, with offices in Baltimore and Philadelphia) was, and for some time had been, operating at a loss, that he was in debt to the amount of $10,000, that his net earnings did not equal his wife’s and his expenses greatly exceeded hers. Pie attempted to sustain these allegations at the trial. Judge Niles found that the couple, during their married life ⁴⁷⁸ together of some twenty-three years, had spent $18,000 a year, that “his earning capacity is in the neighborhood of $20,000 to $21,000 a year,” that he was the beneficiary of a trust fund worth some $140,000, which produced an annual income of about