Willoughby v. Willoughby

Digges, J., delivered the opinion of the Court. An increase of alimony to a wife by $2.00 a week appears to have generated this appeal by the husband. The Circuit Court for Montgomery County granted the appellee wife, Nan T. Willoughby, a divorce on the ground of adultery. By its decree the wife was awarded custody of a minor child and the husband was ordered to pay alimony of $52.00 a week.

The husband, Robert Lee Willoughby, does not contest those portions of the decree granting a divorce and awarding custody, but appeals solely on the ground that the alimony award was excessive. The parties were married in 1928 and have children, two of whom are now emancipated and a third who will be very shortly. The relationship between the parties ⁵⁹² was apparently stormy for many years. The wife left their jointly owned marital abode in September of 1966, and has never returned.

Alleging constructive desertion, she filed her initial bill of complaint seeking a divorce a mensa et thoro in October of 1966. After the complaint was filed the husband moved from the marital home into the apartment of a female friend. After discovery of this occurrence the wife filed a supplemental bill by which she sought an absolute divorce on the ground of adultery. At the hearing the husband testified he lived in the friend’s apartment from January 1968 until the time of the trial.

Even though the husband and his roommate denied any wrongdoing the chancellor found adultery as a fact, relying on the decisions of this Court in Breault v. Breault, 250 Md. 173 , 242 A. 2d 116 (1968) and Blankenship v. Blankenship, 239 Md. 498 , 212 A. 2d 294 (1965). Appellant concedes that under these decisions the chancellor’s determination that the husband was guilty of adultery can not successfully be challenged on appeal and he does not desire to question the award of custody of the minor child. The authority for allowing alimony is statutory, Maryland Code (1957, 1966 Repl. Vol.) Art. 16, §§ 2-5, but the standard whereby it is awarded is judicial.

As we heretofore stated in Lopez v. Lopez, 206 Md. 509, 520 , 112 A. 2d 466 (1955): “The ability of the husband to provide support and the wife’s need for it are controlling factors. The amount to be allowed is governed by all the circumstances of the case and is in the sound discretion of the chancellor. The Court of Appeals has the right to review the amount of alimony allowed, but the award should not be disturbed unless the chancellor’s discretion was arbitrarily used or his judgment was clearly ■ wrong.” Mays v. Mays, 232 Md. 122 , 192 A. 2d 80 (1963); Gosnell v. Gosnell, 208 Md. 179 , 117 A. 2d 861 (1955). Of ⁵⁹³ course the discretion vested in trial judges in this regard is not unlimited and we have not hesitated to modify an award where we felt it was “clearly wrong.” Donigan v. Donigan, 208 Md. 511 , 119 A. 2d 430 (1956).

This Court in many decisions has indicated factors the trial court should consider in arriving at an alimony award. Our statement enumerating some of these factors in Timanus v. Timamis, 178 Md. 640, 642 , 16 A. 2d 918 (1940) has been frequently repeated in subsequent cases. “It is a general rule that a court, before determining the award of alimony, should consider the maintenance of the wife in accordance with the husband’s duty to support her suitably, together with the husband’s wealth and earning capacity. In addition to the financial circumstances of the parties, the court should also usually consider their station in life, their age and physical condition, ability to work, the length of time they lived together, the circumstances leading up to the separation, the fault which destroyed the home, and their respective responsibilities for the care and support of the children.” We have also said that alimony is based upon need and is never a punitive measure. Danziger v. Dcmziger, 208 Md. 469 , 118 A. 2d 653 (1955).

It is obvious that the reason the trial judge