Westphal v. Westphal

Briscoe, J., delivered the opinion of the Court. The single question, raised by this appeal, is, whether the-Court committed an error in directing the husband, the-defendant in the Court below, to pay the wife, the plaintiff,, the sum of seventy-five dollars per week, as alimony pendente Hie for the support and maintenance of herself and of their children, residing' with her, during the pendency of divorce proceedings. The bill for a divorce a mensa et ihoro, permanent alimony, alimony pendente Hie, and counsel fee, was filed by the wife against the husband, in the Circuit Court No. 2 of Baltimore City, on the 24th of November, 1916. A cross-bill thereafter for a divorce a vinculo matrimonii was filed by the husband against the wife, on the 18th of December,, 1916. , On the 5th of December, 1916, the plaintiff (wife) filed a petition, for alimony pendente i lite, wherein it is alleged, that the husband is a man of large fortune, being worth over $400,000, and is possessed of an income and earnings aggregating $40,000 per year, that she has no means or resources, whatsoever wherewith to- support herself or her four children except the sum of twenty-five dollars per week, which, her husband has been sending her.

The prayer of the petition is, that the defendant be required to pay her such sum of money per week for the support and maintenance of herself and children, during the pendency of the divorce proceedings, according to his financial resources, as may be proper and equitable. Hpon this petition, the Circuit Court No-. 2 of Baltimore City, on the 5th of December, 1916, ordered and directed the defendant to pay to the petitioner the sum of seventy-five ³³² dollars per week, accounting from the 24th of December, 1916, as alimony pendente lite, unless cause was shown tp the contrary by a certain day named in the petition, provided, that a copy of the order was served upon the defendant, on or before the 11th day of December, 1916. The defendant answered this petition, and averred in substance that his income was not sufficient to warrant the payment of the amount directed to be paid by the Court, but that he was willing to pay a sum based upon his actual income. The case was heard, upon the petition, answer and testimony taken in open Court, and from an order of Court dated the 17th day of March, 1917, directing the defendant to pay the plaintiff the sum of seventy-five dollars per week, .as alimony pendente lite, during the pendency of the divorce proceedings, and also, to have the use and occupation of a dwelling house owned by the defendant in the City of Baltimore, free of rent, until the further order of the Court.

From this order, this appeal has been taken. The appellant contends, that the order should be reversed, •first, because there was no sufficient hearing before the award of alimony, and, second, because the amount allowed by the ■Court is grossly excessive. The first objection is answered by an examination of the record, wherein it appeal’s, that the defendant was not only represented by counsel'at the hearing, but testified at length,' both upon examination in chief, upon cross-examination, upon re-direct and then upon re-cross examination. It further appears, that at the conclusion of his testimony, the plaintiff was produced as a witness on the call of the Court, and "testified in the case.

There was no proffer so far as the record discloses, for the introduction of further testimony •on the part of either the defendant or the plaintiff, or any offer to produce other testimony reflecting upon the case, until after the Court had delivered its opinion and had determined upon the amount of the allowance for alimony .and had stated its reasons therefor. At this stage of the pro* ³³³ ceedings, the following appears from the record to have occurred: (Mr. Harley): I would like to have it noted that we have not had any opportunity to put in any testimony at all. (The Court): Of course, I do not want to consider1 any final alimony now. (Mr. Straus): About what my brother says about not going into this ease also applies to us.

We did not develop our case. (The Court) : T have not taken any advantage of you. (Mr. Harley): We will be allowed for the money we have already paid? (The Court): Oh, yes.

(Hearing ended.) It is difficult to see, upon what ground, it can be nrged, that the defendant was deprived of any legal right, or that he was not given