Winkel v. Winkel

Parke, J., delivered the opinion of the Court. The bill of complaint was filed on March 10th, 1925, by the wife, Marian I. Winkel, against the husband, Bernard A. Winkel. Its object was to obtain separate maintenance or alimony for the wife, to require the defendant to deliver certain real and personal property which she claimed as hers, and for an injunction restraining the ⁴⁹³ defendant from selling and disposing of certain personal property. The bill was not for a divorce but for alimony.

It did not contemplate the dissolution of the marital tie. Nor have the spouses ever been granted either a divorce a mensa et thoro or a divorce a vinculo matrimonii. After disposing of the questions in dispute concerning the real and personal property, the court decreed “that the defendant pay to his wife pending further order oi the court the sum of twelve dollars a week” for her support and maintenance, beginning from the time she should fully comply with the requirement that she convey by deed to her husband all her title and interest in 'certain real estate. The decree is dated May 23rd, 1925, but the wife failed to convey, and the court appointed a trustee to grant the land to the husband, which was done on September 11th, 1931.

The alimony consequently began to accrue from September 11th, 1931. The questions on these appeals begin with that date. Winkel v. Winkel, 176 Md. 167, 169, 170 , 4 A. 2nd 128. The husband has never paid the wife any of the alimony awarded.

Her testimony is that her subsistence before September 11th, 1933, was mainly derived from the payment to her by her husband of a weekly rental of twenty-five dollars for a filling station operated by him on a property in Frederick which she owned and whereon she had her home. This source of income having stopped, the wife, on September 11th, 1983, filed a petition that the original decree awarding alimony be modified by an increase. The husband filed a motion for the dismissal of the petition on the ground of the wife’s contempt in not executing the grant to him of the property mentioned in the decree of 1925. There then ensued a protracted course of indecisive pleading and litigation, which culminated in the petition of the wife, which was filed on October 5th, 1937, and amended on March 10th, 1938.

In this petition she requested that the alimony be increased to fifteen dollars a week or to such sum as she might be found entitled to, and that she ⁴⁹⁴ be awarded what she should receive by reason of the husband’s default. The husband filed a combined answer and demurrer. There was a denial of the material facts and of the wife’s right to have revised the decree of May, 1925, and to have re-opened the amount of alimony to be paid. The chancellor overruled the demurrer of the husband and, on his appeal, the chancellor’s ruling was affirmed on February 2nd, 1939, in Winkel v. Winkel, supra.

The cause was remanded for further proceedings, which were had. At the time of the remand, the petition of the wife for an increase in the amount of alimony, which was filed on October 5th, 1937, was pending and awaiting determination. On April 13th, 1939, the wife filed three additional petitions. One was for an order to require the husband to pay the solicitors for the wife a counsel fee for their services in connection with the appeal of Winkel v. Winkel, supra; and the costs of the appeal in the equity court until the appeal was taken.

The second was for an ordér adjudging that the sum of 87488 was due the wife from the husband for unpaid instalments of alimony, and the third was to compel the husband to pay counsel fees and costs to the solicitors of the wife incurred in connection with the proceedings mentioned. These petitions were heard together. After consideration of the testimony and the argument of counsel, the court decreed, by four separate orders: First: On the petition of October 5th, 1937, for an increase in the amount of alimony awarded by the decree of May 23rd, 1925, the court reduced the alimony from twelve dollars a week to four dollars a week, accounting from October 5th, 1937, the date of the filing of the petition. Second: On the petition in reference to the unpaid instalments of alimony the wife was decreed the sum of 83785.14; which was computed, at the rate of twelve dollars a week, for the period from September 11th, 1931, the date of the conveyance of the trustee, to October 5th, 1937, the date of the petition praying for a modification of the decree of May 23rd, 1925. ⁴⁹⁵ Third: On the petition for counsel fees for the solicitors of the wife in the appeal in Winkel v. Winkel, 176 Md. 167 , 4 A. 2nd 128, the court allowed a fee of $250, and the costs subsequent to October 5th, 1937, which are to be paid by the husband.

Fourth: On the petition for further counsel fees on account of services rendered since the mandate of the appellate court, a fee of fifty dollars and the costs were directed to be paid by the defendant. After these orders were entered, the husband appealed in one order from every one of the four decrees. The wife took separate appeals from the first three orders. She then filed a petition to have the husband pay the costs of the stenographer’s transcript of the record, of the printing of the record and of her brief, and of a reasonable fee for the services of her solicitors on appeal.

The court passed an order fixing the fee at $150, and requiring it and the reasonable cost of the transcript of the record and its printing, and that of her counsels’ brief, to be paid by the defendant, subject to the approval by the court of the amounts of these costs. Both parties entered separate appeals from this last order. Accordingly, there are six appeals entered on this record. In Nos. 8, 9, 10 there are cross appeals.

In No. 11 the husband appeals, and Nos. 12 and 13 are cross appeals. As a result of the recent decision of this court on the former appeal in this cause, the questions on these appeals are narrowed to a review of the orders made, after the remand, in reference (1) to the allowance of alimony for the period between September 11th, 1931, and October 5th, 1937, at the weekly rate of twelve dollars; (2) to the allowance, after the last named date, of alimony at the reduced rate of four dollars a week; and (3) to the several allowances of fees to the wife’s solicitors. It will be convenient to consider first the question on the awards of alimony. First: In it orders the chancery court selected the date of the filing of the petition of the wife for an in ⁴⁹⁶ crease in alimony, instead of the date of its decree, as the time for the reduction in the original award of alimony to begin.

In this choice the court is within its authority. The original decree of May 23rd, 1925, for alimony or maintenance was in full effect at the institution of the proceedings which give rise to the pending appeal. The amount of twelve dollars a week for her support and maintenance was awarded “pending further order of the court,” which was a reservation of the right and power of the court to change or stop the allowance whenever the known circumstances of the parties would give occasion for such equitable redress. Wygodsky v. Wygodsky, 134 Md. 344, 348 , 106 A. 698 ; infra; Beck v. Beck, 43 N. J. Eq. 668, 14 A. 812 .

With such a right expressly retained, there can be no question of the power of the court to make either a reduction or an increase in the alimony or maintenance as the conditions or circumstances may require. Moreover, the time when such modification may become effective was in the discretion of the chancellor. Commonly, the decree for alimony or maintenance is effective from the time of its passage, but the court may fix the time at which the alimony is to begin at either before, with, or after the date of the decree. The adaptability, according to the circumstances, of the time when payment of the periodical amount of a continuing alimony or maintenance is to begin is a particularly serviceable procedural discretion in the event of an increase or decrease in the instalment to be paid.

If the faculties of the husband are improved, the allowance to the wife ought to be increased, and if they decline, the wife’s allowance should be reduced. DeBlaquiere v. DeBlaquiere, 3 Hag. Ecc. 322, 329, 162 Eng. Repr. 1173, 1175; Robinson v. Robinson, 2 Lee Ecc. 593, 161 Eng.

Repr. 451; Kerr v. Kerr, (1897) 2 Q. B. Div. 439, 443; Cox v. Cox, 3 Add. Ecc. 276, 162 Eng. Repr. 480; Bishop on Marriage and Divorce, vol. 2, secs. 869-877; Tangye v. Tangye, L. R. (1914) Probate 201, 208; 10 Halsbury’s Laws of England, 2nd Ed., sec. 1267, p. 797. ⁴⁹⁷ In the instant case, the wife applied on October 5th, 1937, for an increase in the amount of alimony or maintenance.

The decree, which denied any increase, but reduced the weekly payment to four dollars, was not passed until September 2nd, 1939. It made the reduction effective as of October 5th, 1937, subject to the further order of the court. The wife had no fixed right in the alimony decreed on May 23rd, 1925, and the payment of the specific amount awarded was limited to the period of the pendency of the award of that date, which was constantly subject to modification. So, the continuation of the payments pursuant to the original decree became immediately subject, on the filing of the petition of October 5th, 1937, to the ultimate determination of the court on the issue thus presented.

The modification asked was referable to the date of the filing of this petition, and, therefore, any change effective as of that, or a later, date cannot be said to be retrospective. From the time of the filing of the petition for modification the amount payable thereafter was conditional on the decision to be made on the issue made by that petition. Hence, in the reduction of the periodical payment from this date, the court interfered with no right of the wife, but acted within its judicial discretion in limiting the pendency of the former provision for alimony or maintenance to October 5th, 1937. DeBlaquiere v. DeBlaquiere, 3 Hag.

Ecc. 322, 331, 332, 162 Eng. Repr. 1173, 1176. Having found that the effective date for the modification of a decree for alimony need not necessarily coincide with the date of the decree or order to that effect, the remaining questions for consideration relate to what modifications of a decree may be made with respect to periodical payments of alimony which are past due and those which are to become due. In giving the answers to this twofold inquiry, it is necessary to keep in mind the essential requisites and nature of alimony.

Alimony, whether temporary or permanent, is not a debt. Roberts v. Roberts, 160 Md. 513, 522 , 154 A. 95 ; ⁴⁹⁸ Bishop on Marriage and Divorce, vol. 2, sec. 837. Generally speaking it is a periodical allowance during the joint lives of the spouses for the wife’s support and maintenance when they live separate and apart or she is divorced from her husband. Dickey v. Dickey, 154 Md. 675, 678 , 141 A. 387 .

If the wife is without adequate means for her support and maintenance, alimony pendente lite is usually allowed her as a privileged suitor in a divorce suit without the necessity of a preliminary inquiry and determination of the relative merits of the controversy. Bishop on Marriage and Divorce, vol. 2, secs. 862, 935; 17 Am. Juris, secs. 531, p. 432; 540, p. 435; Bishop on Marriage and Divorce, vol. 2, sec. 862; Hood v. Hood, 138 Md. 355 , 113 A. 895 ; Miller v. Miller, 153 Md. 213 , 138 A. 22 ; Daiger v. Daiger, 154 Md. 501 , 140 A. 717 ; McClees v. McClees, 160 Md. 115 , 152 A. 901 ; Cook v. Cook, 166 Md. 704 , 171 A. 722 ; Kalben v. King, 166 Md. 632 , 172 A. 80 ; Spellman v. Spellman, 169 Md. 760 , 182 A. 342 . See Coles v. Coles, 2 Md. Ch. 341 ; Tayman v. Tayman, 2 Md. Ch. 393 ; Roth v. Roth, 143 Md. 142 , 122 A. 34 ; Kalben v. King, 166 Md. 632 , 172 A. 80 .

But, as a general rule, the wife is not allowed permanent alimony unless she is entitled to a decree for divorce. Bishop on Marriage and Divorce, vol. 2, secs. 863-867; Buckner v. Buckner, 118 Md. 101 , 84 A. 156 . In the matter of alimony, the chancellor, however, must act in the present in reference to a variable ability to support. Thus, if the husband have neither tangible property, nor income nor earning capacity, there is no basis for an allowance of alimony, and none may be made.

Feigley v. Feigley, 7 Md. 537 , 61 Am. Dec. 375 . Nevertheless, if the husband should later acquire faculties for the payment of alimony, the chancellor may then proceed to its allowance. 17 Am. Juris, sec. 633, p. 484.

Again, if there be faculties and alimony be awarded, and the faculties should later increase or decline or utterly fail, the amount of the alimony may be varied accordingly or rescinded. 17 Am. Juris., secs. 643, 644 ⁴⁹⁹ pp. 491, 492; Marshall v. Marshall, 162 Md. 116 , 159 A. 260 ; Dickey v. Dickey, 154 Md. 675 , 141 A. 387 ; Gloth v. Gloth, 154 Va. 511 , 153 S. E. 879 ; Tangye v. Tangye, L. R. (1914) Probate 201, 208. The doctrine is founded in an equality of right and obligation, and its enforcement is indifferent to whether the change is in the relief of one spouse, so long as the rights of the other are not denied.

It is patent that of its nature alimony is in amount subject to variations from time to time as the circumstances, needs, and pecuniary condition of the parties change. As pointed out by Bishop in his work, this doctrine of relative adjustment to contemporaneous faculties rests upon the mutual rights and obligations of the parties, which they assumed for the duration of their joint lives, as well with reference to their children as to themselves. A responsibility of the husband is the support and maintenance of his wife and children in the measure of his ability and station in life. The duties and rights in these respects are subject to changes which are not foreseeable, and so cannot be adequately anticipated and taken care of by any judicial decree.

So if, by his fault, the marriage ties are breached and the parties are thereby separated, the husband’s conduct does not lessen his obligation to provide for, the support and maintenance of his wife, to which she was entitled while in cohabitation. The obligation of support is continuous and the husband’s marital delinquency may not earlier terminate the obligation. The obligation must be correspondingly fulfilled out of the husband’s contemporaneous faculties, whether in wealth, in moderate means, or in poverty. Within this gamut of fortune the wife shares.

From the nature of affairs, change in tangible property and in income and in earnings may occur as well after as before the separation of the spouses. Although the power to modify provisions of a decree in respect of future instalments of alimony is well settled in this state, and by the weight of authority of other jurisdictions, there is notwithstanding a conflict ⁵⁰⁰ of opinion in reference to overdue instalments. In a number of jurisdictions the view prevails that instalments of alimony become vested as they come due, and hence there is no power in the court to modify the decree in this respect. 17 American Juris, sec. 648, pp. 494-495. The reasons in support of a modification of future instalments of alimony are only less in degree in reference to the instalments which have accrued due.

There may have been error in the amount fixed because of mistake in the husband’s faculties. The capacity to pay may be materially reduced either by unforeseen diminution in estate or by failure in earnings through incapacity, loss of position or of employment. When the failure to pay is attributable to such a cause, it is equitable to make a conformable modification in alimony which has accrued due. To deny a court of chancery such a power prevents the rectification of an obligation which would not have been created had the chancellor been able to anticipate the later faculties of the husband, and defeats the rule that the maintenance afforded the separated wife through alimony is not to be greater than what she would have enjoyed in cohabitation.

On reason the power of the court of equity to adapt its remedial relief to existing conditions and circumstances should not be curtailed. The flexible quality of its procedure is oppressively limited by the denial of redress for the chancellor’s unforeseeably mistaken estimate of future faculties which the husband, without fault on his part, has not possessed in such a measure as to enable him to comply with the payment of the alimony imposed. Nor is it believed that there is to be found in this jurisdiction a rejection by the appellate court of this humane and equitable relief. After a careful review and consideration of the decisions, the settled conclusion of this court is stated in the opinion written for the court by Judge Offutt in Knabe v. Knabe, 176 Md. 606 , page 616, 6 A. 2nd 366, page 370, where it is said: “So that the law of this ⁵⁰¹ state now is that where alimony is allowed in a decree awarding a divorce a mensa or a vinculo, or in a decree awarding alimony alone, the jurisdiction of the court as to alimony is continuing whether reserved or not, and so much of the decree as relates to the allowance of alimony may be from time to time changed, and the allowance increased or decreased or otherwise modified so as to conform to changed conditions.” See Winkel v. Winkel, 176 Md. 167, 170 , 4 A. 2nd 128; McCaddin v. McCaddin, 116 Md. 567 , 82 A. 554 ; Emerson v. Emerson, 120 Md. 584, 591, 594 , 87 A. 1033 ; Wygodsky v. Wygodsky, 134 Md. 344 , 106 A. 698 ; Hubbard v. Hubbard, 131 Md. 291 , 101 A. 772 ; Fairbank v. Fairbank, 169 Md. 212 , 181 A. 233 ; Braecklein v. Braecklein, 136 Md. 32 , 109 A. 546 ; Dickey v. Dickey, 1928, 154 Md. 675 , 141 A. 387 ; Marshall v. Marshall, 1932, 162 Md. 116 , 159 A. 260 ; Id., 164 Md. 107 , 163 A. 874 ; Langrall v. Langrall, 1924, 145 Md. 340 , 125 A. 695 ; Winchester v. Winchester, 138 Md. 95 , 113 A. 584 ; Bowers v. Bowers, 135 Md. 452 , 109 A. 111 ; Clarke v. Clarke, 1926, 149 Md. 590 , 131 A. 821 ; Blades v. Szatai, 151 Md. 644 , 135 A. 841 ; see Slacum v. Slacum, 158 Md. 107, 110, 111 , 148 A. 226 ; Kriedo v. Kriedo, 159 Md. 229, 232 , 150 A. 720 .

In Braecklein v. Braecklein, 1920, 136 Md. 32 , 109 A. 546 , the amended bill of complaint was for a divorce a vinculo matrimonii; and in its grant of this relief the chancellor decreed, on March 10th, 1919, that the husband pay to the wife" a weekly specific amount of money, accounting from February 24th, 1919, as permanent alimony. The instalments of alimony accrued due weekly. Although the decree had become enrolled and contained no provision in terms expressly reserving the right to modify the alimony awarded, the chancellor, on August 1st, 1919, rescinded and vacated its award of alimony. One of the questions on appeal was the general power of the court to strike out of the decree the provision as to alimony.

This court determined that a court of equity possessed the power “to modify that part of the decree providing for alimony, whether the decree grants ⁵⁰² divorce a vinculo or a mensa," 136 Md. page 38, 109 A. page 548. The power to rescind, after enrolment, the right to be paid instalments of alimony would necessarily include the power to modify the allowance by a fractional reduction. So, the decision cited affirmed the rule that the power to modify by rescission or reduction was inherent in a court of equity, and did not exist by reason of an express reservation in the decree. The later case of Clarke v. Clarke, 1926, 149 Md. 590 , 131 A. 821 , is one in which a decree for divorce a mensa et thoro was obtained on January 31st, 1924.

The chancellor declared by the decree that the wife was not entitled to receive alimony. There was no provision for a later application by the wife for alimony. The decree became enrolled, and the wife did nothing for more than a year. On May 28th, 1925, she filed a petition for a modification of the decree by an allowance of alimony.

The basis of her application was the altered circumstances of the spouses: She set forth in her petition the increased faculties of the husband and her own ill health and resultant loss of employment and