Waters v. Waters

⁴³⁸ Collins, J., delivered the opinion of the Court. On March 11, 1947, Dora Baldwin Waters, appellee and cross-appellant, hereinafter designated as the appellee, filed a bill for a divorce a vinculo matrimonii on the grounds of adultery against her husband, Warner W. Waters, appellant and cross-appellee, hereinafter designated as appellant. She prayed a divorce a vinculo matrimonii, permanent alimony, costs of suit, counsel fees, and other and further relief. To that bill the appellant filed an answer denying the material allegations of the bill.

After testimony before the examiner and filing of depositions, a decree was signed by the chancellor granting the appellee a divorce a vinculo matrimonii, monthly alimony in the amount of $75, and counsel fee of $150 to appellee’s solicitor, and costs of suit. From that decree both parties to this suit appeal here. That part of the decree awarding a divorce a vinculo matrimonii is not contested by the appellant, Warner W. Waters. He appeals from that part of the decree ordering him to pay permanent alimony and counsel fee.

He claims that the income of the wife is sufficient to care for her needs and she is amply able to pay counsel fees to her solicitors. The wife, Dora B. Waters, appeals from the order granting permanent alimony and counsel fees and contends that the amounts awarded by the chancellor should be substantially increased. The only child of this marriage is a son now twenty-one years of age. Chapter 261 of the Acts of 1935, added a new section to the Code, 1939 Code, Article 16, Section 17.

This section provides: “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 income is insufficient to care for her needs.” The primary question for our decision, therefore, is whether, under the facts presented, the income of Dora B. Waters “is insufficient to care for her needs”. ⁴³⁹ The facts show that the wife is forty-nine years of age and her salary is $4,000 a year, she having been employed for twenty years by the United States Treasury Department. She owns a combination store and dwelling in Laurel, Maryland, which she values at $15,000 and from which she receives rent of $1,860 a year, the expenses being $905, leaving her an annual net rental income of $955. She owns building and loan stock of the value of $2,500 and Government bonds amounting to $1,-500. She also has a small checking account of $250.

Therefore, according to the testimony, she has assets of approximately $20,000 and a net income of approximately $5,000 a year and lives in a home owned by her husband. At the termination of this suit undoubtedly she will be required to remove from her husband’s house and obtain another home. Although the assets and income of the wife are more or less admitted and not disputed, there is considerable dispute as to the husband’s assets and income. In his answer, as above set forth, he denied that his annual income is approximately $4,000.

The chancellor found that the appellant’s income was not more than from $4,000 to $5,000 a year. The chancellor, in the opinion filed in this case, said: “However, it might well be that he earns a great deal more than that.” At the time of the hearing the husband admitted that he had the following assets: ⁴⁴⁰ From the evidence we can fairly assume that his capital assets are at least worth $40,000. He admits that his income from January 1, 1947, to September 2, 1947, was approximately $20,000 but claims that his expenses for the same period were approximately $17,000. Included in this figure of $17,000, however, are the appellant’s living expenses, not all of which were incurred because of his business.

He admits that his race horses won as much as $80,000 during the year 1946 and the first six months of 1947. He admits also that