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Docket Number

No. 85, September Term, 1978.

Attorney(S)

Reargued by George Chartrand, with whom were Alan Hilliard Legum and Legum, Cochran Chartrand, P.A. on the brief, for appellant. Reargued by Thomas M. Schifanelli for appellee.

Judges

MORTON, J., delivered the opinion of the Court.

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Smart Summary

Case Summary: Hilton W. Maynard, Sr. v. Lucille Hunt Maynard

Factual and Procedural Background

This appeal arises from a divorce action filed by Hilton W. Maynard, Sr. against his wife, Lucille Hunt Maynard, on the ground of voluntary separation under Md. Code, art. 16, § 24. In answer, the appellee charged the appellant with desertion and filed a cross-bill seeking separate maintenance both pendente lite and permanent. A preliminary hearing on alimony pendente lite was held on May 27, 1977, before Judge Bruce C. Williams, who on June 3, 1977 ordered the appellant to pay the appellee $30.00 bi‑weekly (accounting from May 27, 1977). After a full hearing on the merits before Judge James L. Wray, the Circuit Court granted a divorce a vinculo matrimonii by decree signed January 11, 1978, and ordered the appellant to pay the appellee $65.00 bi‑weekly as permanent alimony. The appellant appealed, challenging only the award of permanent alimony on the ground that, absent a material change in circumstances, a permanent award may not exceed an earlier alimony pendente lite award.

Legal Issues Presented

Whether, absent an intervening substantial or material change in the parties' circumstances, a court may award permanent alimony in an amount greater than the amount previously awarded as alimony pendente lite.

Arguments of the Parties

Appellant's Arguments

Appellant contended that Judge Wray lacked authority to award permanent alimony in an amount greater than the alimony pendente lite award because there had been no substantial or material change in the financial circumstances of the parties during the seven‑month interval between the two awards.
At the preliminary hearing, counsel for appellant argued that alimony pendente lite is intended to preserve the status quo pending litigation and suggested that the $30.00 bi‑weekly already being paid (about $60.00 per month) was a reasonable pendente lite amount, reflecting past practice and the wife's prior means of support.
Appellant relied on the principle, quoted from Lott v. Lott, that a court may modify a decree for alimony for sufficient cause but "may not litigate matters that were or should have been considered at the time of the initial award," arguing this principle precluded increasing permanent alimony over the pendente lite amount absent changed circumstances.

The opinion does not contain a detailed account of appellee's separate legal arguments in support of the permanent award beyond her filing of a cross‑bill for separate maintenance and the evidence presented at the merits hearing (financial statements and testimony) that formed the basis for the permanent award.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lott v. Lott, 17 Md. App. 440 (1973)	The general rule that a court of equity may, for sufficient cause, modify a decree for alimony at any time, but in so doing may not relitigate matters that were or should have been considered at the time of the initial award.	The Court acknowledged Lott as good law on modification of existing permanent awards but distinguished it from the present situation: Lott addressed modification of an already‑granted permanent alimony award, whereas the present question concerned the initial permanent award following a pendente lite award. Thus, Lott's rule did not restrict the chancellor's authority to set a greater initial permanent award than the earlier pendente lite amount.
Flanagan v. Flanagan, 270 Md. 335 (1973)	Quoted principle (via Timanus) enumerating the factors a court should consider in determining an appropriate award of permanent alimony (husband's duty to support, wealth, earning capacity, station in life, age, physical condition, ability to work, length of cohabitation, circumstances of separation, fault, child support responsibilities).	The Court relied on Flanagan (which quoted Timanus) to emphasize that determination of permanent alimony requires consideration of multiple, detailed factors that ordinarily cannot be fully developed at a preliminary pendente lite hearing; this supported the conclusion that pendente lite awards are not dispositive of subsequent permanent awards.
Timanus v. Timanus, 178 Md. 640 (1940)	The rule describing the substantive factors a court should weigh when determining permanent alimony (see Flanagan quoting Timanus for the list of factors).	The Court used the Timanus factors (as quoted in Flanagan) to demonstrate the broader and more detailed inquiry required for permanent alimony versus the narrower, prima facie showing sufficient for pendente lite awards, supporting the view that the pendente lite amount does not limit the initial permanent award.

Court's Reasoning and Analysis

The court's analysis proceeded in these primary steps, following the text of the opinion:

Clarification of the precise issue on appeal: whether a permanent alimony award may exceed a previously entered alimony pendente lite award in the absence of an intervening material change in circumstances.
Recognition of the appellant's reliance on Lott v. Lott and the general proposition that a modification of permanent alimony requires a sufficient change in circumstances and should not relitigate matters that were or should have been considered earlier. The court stated this is still "good law" but explained it applies to modification of an existing permanent award, not to setting an initial permanent award.
Definition and contrast of the two types of awards: the court explained that "alimony pendente lite" is a temporary monetary allowance pending litigation (citing Black's Law Dictionary and Nelson on Divorce and Annulment), and that "permanent alimony" is a lifetime provision for support. The court emphasized that pendente lite awards are made on preliminary showings (prima facie matters) and serve to maintain the status quo pending a full hearing.
Explanation of the differing standards and factual development required: the court cited Nelson's description of the prima facie elements required for pendente lite relief (pendency of the action, existence of marriage, probable cause or defense, financial inability of the wife to support herself and prosecute/defend, and husband's ability to pay). The court contrasted this with the more comprehensive set of considerations for permanent alimony, as articulated in Timanus (via Flanagan), which include wealth, earning capacity, station in life, age and health, ability to work, duration of the marriage, circumstances of separation, fault, and child support responsibilities.
Conclusion drawn from the distinctions: because a preliminary pendente lite hearing cannot fully develop all factors relevant to a permanent award, a pendente lite award is necessarily limited in scope and purpose (maintaining the status quo) and therefore does not operate to constrain or control the amount a chancellor may award as permanent alimony following a full hearing on the merits.
Application to the facts: the court noted counsel for appellant's own recognition at the preliminary hearing that pendente lite was intended to maintain the status quo and was not intended to address the full range of elements considered for permanent alimony. The court thus found no principle (including that in Lott) that would prohibit awarding permanent alimony in an amount greater than the pendente lite award in the initial permanent determination.

Holding and Implications

Holding: The Court affirmed the judgment of the Circuit Court. The appellate court held that an award of alimony pendente lite does not limit or constrain a subsequent initial award of permanent alimony; the awards are separate and distinct, and a chancellor may award permanent alimony in an amount greater than the pendente lite award without a prior intervening change in circumstances. The decree below ordering the appellant to pay the appellee $65.00 bi‑weekly as permanent alimony (after a pendente lite award of $30.00 bi‑weekly) was affirmed. Costs were to be paid by the appellant.

Implications: As applied in this case, the direct legal consequence is that the Circuit Court's initial permanent alimony award of $65.00 bi‑weekly is valid despite the earlier pendente lite award of $30.00 bi‑weekly. More generally, the opinion explains and confirms the principle that alimony pendente lite serves a distinct, temporary function (preserving the status quo pending litigation on a prima facie showing) and does not operate as a ceiling on the amount a court may set as an initial permanent alimony award after full consideration of the factors relevant to permanent support. The opinion does not purport to establish a novel exception to modification law as stated in Lott; rather it distinguishes modification of an existing permanent award from the separate task of determining an initial permanent award following a pendente lite order.

Decision rendered by the Court of Special Appeals of Maryland (Morton, J., delivered the opinion). Decree of January 11, 1978 (permanent alimony $65.00 bi‑weekly) affirmed; costs awarded against appellant.

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HILTON W. MAYNARD, SR. v. LUCILLE HUNT MAYNARD

DIVORCE — Alimony Pendente Lite — Permanent Alimony — The Amount Of An Alimony Pendente Lite Award Does Not Serve As A Limitation On A Subsequent Award Of Permanent Alimony. The Court stated that an award of alimony pendente lite is a monetary payment pending the outcome of litigation which has been instituted but not concluded while it is apparent that all factors which a chancellor must consider in a divorce proceeding looking to an award of permanent alimony cannot be developed in a preliminary hearing which forms the basis of an award pendente lite and held that the awards are separate and distinct awards and the amount found reasonable as alimony pendente lite does not control or place a constraint upon the chancellor awarding permanent alimony. pp. 48-53

MORTON, J., delivered the opinion of the Court.

This is an appeal by Hilton W. Maynard, Sr., from a decree entered in the Circuit Court for Anne Arundel County (Wray, J.) divorcing the parties and awarding his wife, Lucille Hunt Maynard, permanent alimony. There is a single contention:

"Absent an intervening substantial or material change in the circumstances of the parties, the Court may not issue an Order for an increase in permanent alimony over the amount previously awarded for alimony pendente lite."

The record reveals that appellant brought the suit for divorce on the ground of voluntary separation. Md. Code, art. 16, § 24. Appellee, in her answer, charged appellant with desertion and later filed a cross-bill for separate maintenance both pendente lite and permanent. A hearing on the bill for separate maintenance pendente lite was held on May 27, 1977, before Judge Bruce C. Williams. After reviewing the testimony and financial statements filed by the parties, Judge Williams signed an order dated June 3, 1977, directing appellant to pay the appellee "the sum of $30.00 bi-weekly accounting from May 27, 1977."

The proceedings went to hearing on the merits before Judge James L. Wray. Testimony was taken, the parties again filed financial statements and by a decree signed on January 11, 1978, the parties were granted a divorce a vinculo matrimonii and appellant was ordered to pay the appellee "$65.00 bi-weekly as permanent alimony * * *."

It is in this procedural and factual posture that appellant contends that Judge Wray was without authority to enter the award of permanent alimony in an amount in excess of the award of alimony pendente lite, since there had been no material or substantial change in the financial circumstances of either of the parties during the seven-month period between the award of alimony pendente lite and the award of permanent alimony.

At first blush appellant's argument has a certain appeal. He points to the statements of this Court in Lott v. Lott, 17 Md. App. 440, 444 (1973), where we said:

"It is well settled in this State that a court of equity may, for sufficient cause shown, modify a decree for alimony at any time. In so doing, however, it may not litigate matters that were or should have been considered at the time of the initial award."

This, of course, is still good law in our opinion. Appellant's effort to have it apply in this case, however, would require us to lift the statement out of context since in Lott the issue was whether to modify a permanent award of alimony, previously granted, as a result of alleged changes in the financial circumstances of the parties.

Here, however, we are concerned with the difference in the amount of alimony pendente lite and the amount of permanent alimony awarded, which, in our opinion, is not comparable to a situation where a court modifies an award of permanent alimony previously granted. As the nomenclature indicates, an award of alimony pendente lite is a monetary payment pending the outcome of litigation which has been instituted but which has not been concluded.

In Black's Law Dictionary (4th ed., 1951) alimony pendente lite is defined as "an allowance made pending a suit for divorce or separate maintenance, including a reasonable allowance for preparation of the suit as well as for support." On the other hand, Black defines permanent alimony as a "provision for the support and maintenance of a wife during her lifetime."

Md. Code, art. 16, § 5 authorizes the payment of alimony and alimony pendente lite in terms of a "spouse" rather than a wife.

In Nelson on Divorce and Annulment (2d ed., 1945), alimony pendente lite is spoken of in terms of "temporary alimony." In § 12.13 it is stated:

"An application for temporary alimony or for suit money, in a pending matrimonial action, while not a separate suit, is a collateral proceeding within the basic suit, and is a proceeding for a separate order, independent of the final judgment in the action."

In § 12.24 Nelson states:

"The applicant for the allowance must show, at least prima facie * * * in order to obtain an allowance pendente lite of temporary alimony, allowance for support of children, and/or suit money, including counsel fees, (1) the pendency of the matrimonial action in which the allowance is sought; (2) the existence of a marriage between the parties; (3) a probable cause of action or defense on the part of the applicant, with reasonable probability of success of the applicant on the trial; (4) financial inability of the wife to support herself and/or to prosecute or defend the action; and (5) the ability of the husband to make the payments."

This, of course, is a substantially different measure than that employed in awarding permanent alimony. In Flanagan v. Flanagan, 270 Md. 335, 339 (1973), the Court of Appeals quoted with approval Timanus v. Timanus, 178 Md. 640, 642 (1940):

See Marshall and May, The Divorce Court, p. 119.

"`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.'" (Emphasis omitted.)

The Court in Flanagan went on to say, at 340-41:

"[W]e think, that the General Assembly intends that when alimony is permitted the factors to be weighed in determining an appropriate award are considered in the same light in Maryland whether the bill for divorce is brought on a fault or no fault basis."

It is perfectly apparent that all the factors which a chancellor must consider in a divorce proceeding looking to an award of permanent alimony cannot be developed in a preliminary hearing which forms the basis of an award pendente lite. It is only after a full and complete hearing on the merits of the respective claims of the parties that a chancellor is in a position to formulate a judgment which has a greater degree of permanency than the judgment he pronounces after a hearing on temporary alimony. Counsel for appellant seems to recognize this distinction for he argued below that since the appellant had been giving the appellee the sum of $30.00 bi-weekly prior to the hearing on alimony pendente lite, "we would at this time agree to consent to the award of alimony pendente lite in that same amount, $60.00 per month, to Mrs. Maynard. I believe this would be justified in consideration of the fact that this has been the amount which Mrs. Maynard has been receiving over the past three years and therefore, in accordance with the purpose of alimony pendente lite which is to maintain the status quo of the parties so the wife would not suffer financial hardship, I believe that that sum would be fair and reasonable under the circumstances of this case."

Later counsel for appellant at the preliminary hearing below aptly described the function of alimony pendente lite:

"So I think to continue the status quo in this case, the Court need only require that Mr. Maynard continue the same payments which he has been making and which he is up to date on, and that is $30.00 bi-weekly. I don't think provisions of alimony pendente lite are intended to cover all the various nuances and elements that a permanent alimony is supposed to provide for. In this case we're merely trying to provide for the status quo. This isn't a situation where the parties have been living together and there's suddenly a separation for one reason or another and now the Court has to decide how much money do we have to give to the wife in order that she can maintain herself pending the outcome of the divorce proceedings. In this case, the wife has been maintaining herself for ten years and for the last two or three years at least has been maintaining herself based on this $30.00 bi-weekly."

While this Court does not desire to have counsel for appellant feel that his argument below has come back to haunt him in this appeal, the fact remains that he recognized, and we think properly so, the distinction between alimony pendente lite and permanent alimony. Judge Williams, who awarded the alimony pendente lite, indicated he was very much aware of its nature when he said in response to a question from counsel:

"Well, I don't think they [answers to Interrogatories] do mean an awful lot in a pendente lite hearing when you try to figure out how much she needs and how much he can afford to pay on a temporary basis."

Thus, we think the principle that an award of permanent alimony will not be modified or terminated unless there is a change in the financial circumstances of one or both of the parties, Lott, supra, at 445, does not limit the initial award of permanent alimony, which may or may not be in excess of an amount awarded to a spouse as alimony pendente lite. They are separate and distinct awards and the amount found reasonable as alimony pendente lite does not control or place a constraint upon the chancellor awarding permanent alimony.

Judgment affirmed; costs to be paid by appellant.

MAYNARD v. MAYNARD