Von Bretzel v. Von Bretzel

Pow’ERS, J., delivered the opinion of the Court. Upon complaint by the husband and counter-complaint by the wife, each praying a limited divorce for desertion (constructive or actual), and after trial, Judge Moore in the Circuit Court for Montgomery County granted a divorce a mensa et thoro to the wife on her counter-complaint. He directed that custody of the son of the parties remain in the father, reserved in personam jurisdiction to award alimony to the wife, and ordered the husband to pay $500.00 of the attorney’s fee incurred by the wife. In this appeal the husband raises only one point; that the Chancellor lacked the legal power to order the payment of the attorney’s fee, in the absence of a finding that ⁵¹⁴ the wife’s income is insufficient to care for her. needs.

He argues that since an award of alimony must be similarly justified, and none was made (although jurisdiction to do so was reserved), then the requisite finding of need is. absent. He does not question the amount of such. The statutory basis for award of alimony is Code, Article 16, Section 3. It provides: “In cases where a divorce is decreed, alimony may be awarded.” Section 2 deals with alimony as a separate cause of action (not involving a prayer for divorce).

Section 5 (sometimes known as the “golddigger statute”) places a limitation upon the award of alimony and counsel fees. Prior to July 1, 1969, that section read: “In all cases where alimony or alimony pendente lite and counsel fees are claimed, the court shall not award such alimony or counsel fees unless it shall appear from the evidence that the wife’s