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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1852 September Term, 1995 ___________________________________

ANGELO C. GUARINO

v.

HELENE A. GUARINO

___________________________________ Wenner, Cathell, Alpert, Paul E. (Retired, specially assigned), JJ. ____________________________________ Opinion by Alpert, J. ____________________________________

-2 Filed: October 31, 1996

In this appeal, Angelo C. Guarino, appellant, challenges an award of alimony pendente lite and initial attorney's fees to Helene Ann Guarino, appellee, by the Circuit Court for Montgomery County. He brings to our attention four allegations of error: I. Did the Chancellor err in granting any alimony or counsel fees to Mrs. Guarino where Mrs. Guarino had no cause of action and had no probability of success based upon the causes of action she alleged in her pleading? II. Did the Chancellor err in granting any alimony, let alone $3,500.00 per month, to Mrs. Guarino where Mrs. Guarino's needs did not require such an award of alimony, the Chancellor failed to properly exercise his independent judgment, as required by Domingues v. Johnson, 323 Md. 486 (1991), to determine Mrs. Guarino's reasonable needs, Mrs. Guarino was capable of contributing financially toward her own support, Mrs. Guarino had voluntarily impoverished herself, and Mr. Guarino lacked the ability to pay alimony? III. Did the Chancellor abuse his discretion in awarding retroactive alimony where the award represented 90% of Mr. Guarino's income earned during the retroactive period, the Chancellor failed to consider the funds that Mrs. Guarino had taken from the parties' bank accounts, Mrs. Guarino's ability to support herself as further shown by her only nominal debts since the parties' separation through the date of [the] hearing? IV. Did the Chancellor err in awarding initial counsel fees where Mrs. Guarino had already paid her attorney a fee with the parties' joint funds and the retroactive alimony gave her further ability to pay her attorney additional means?

-2When shorn of verbiage, appellant's issues are: did the chancellor err in granting (1) alimony pendente lite and (2) initial attorney's fees to appellee. On August 15, 1994, appellee filed a complaint for limited divorce, alimony, and other relief, to which appellant filed an answer. The case proceeded to a hearing on January 27, 1995,

during which the master heard testimony from appellee, appellant, and two expert witnesses, received exhibits, and entertained arguments. Thereafter, on April 20, 1995, the master filed her We shall recount the relevant

Report and Recommendations. portions of her findings.

On August 11, 1994, after some thirty-three years of marriage to appellant, appellee, who was in her fifties, left the couple's marital residence with only her purse and family automobile. Thereafter, she returned to collect personal

belongings and assorted documents. Prior to her departure, and going back to 1979, appellee had worked alongside appellant in the couple's corporation, Guarino Corporation. When she left home, her paychecks from the

corporation were terminated. Lacking the financial resources to obtain housing, appellee sought and obtained shelter with her father in Pennsylvania and family and friends in Maryland. She borrowed money from her

father and cashed in a $3,100.00 life insurance policy to meet

-3her living expenses. Appellee also withdrew $7,500.00 from a

joint savings account, which amount she paid to her legal counsel as a retainer. Appellant provided appellee $750.00 at Christmas

and an additional $1,000.00 the week before the January 27, 1995 hearing. Appellant, who remained in the eleven room, three and onehalf bath Potomac, Maryland marital home, refused to provide appellee with any support apart from the $1,750.00. He

liquidated $33,000.00 residing in the couple's joint investment account and deposited the couple's joint tax refund into his own account. Subsequent to appellee's departure, and contemporaneous

to appellant's dominion of the aforementioned monies, he spent $8061.00 on home improvements and furnishings, and undertook other home improvement projects. Financial records relating to the couple's personal and business dealings and testimony as to the corporation's financial status revealed that appellant, "without question," had the financial resources to contribute to appellee's financial needs during the pendente lite period. Appellee, who was not in a

position to support herself during that period, had reasonable needs of approximately $3,500.00 per month. Furthermore,

appellee's homelessness and inability to support herself constituted extraordinary circumstances justifying an entry of an

-4immediate order for pendente lite support from the date of the hearing, January 27, 1995, onward. Appellee incurred $12,403.11 in attorney's fees and expenses, of which she paid $7,385.61 from joint funds. Five

thousand seventeen dollars and fifty cents remained outstanding, in addition to $2,500.00 she paid as a retainer to an expert for the purposes of valuation of marital assets. In light of those findings, the master recommended that the chancellor order appellant to pay appellee alimony pendente lite of $3,500.00 per month, commencing from August 15, 1994, and $7,500.00 for initial attorney's fees and costs. The very next day, April 21, 1995, the chancellor signed an Immediate Pendente Lite Order, in which, among other things, he ordered that appellant pay to appellee "as pendente lite alimony the sum of $3,500.00 per month, commencing and accounting from February [sic] 15, 1995 . . . ." Appellant filed exceptions to On July 19, 1995, the

the Master's Report and Recommendations.

chancellor heard exceptions to the Report and Recommendations. Nine days later, the chancellor issued an Order overruling appellant's exceptions to the master's Report and Recommendations. To preserve his appellate posture, appellant

timely noted an appeal from the overruling of his exceptions. Thereafter, appellant filed a counter-complaint for Absolute Divorce and appellee filed an amended and supplemental complaint

-5for Absolute Divorce. The issues of alimony pendente lite and

initial counsel fees remained unresolved until May 2, 1996, when the chancellor signed an Order granting to appellee alimony pendente lite of $3,500.00 per month from August 15, 1994, entered judgment against appellant in the sum of $15,750.00 for unpaid alimony pendente lite, credit given for the $1750.00 given to appellee, and ordered that appellant pay to appellee for initial counsel fees $7,500.00. noted an appeal to this Court. I. Alimony Appellant crafts his first assault on the chancellor's judgment from our quotation of Nelson on Divorce and Annulment (2d ed. 1945). We quoted that work in Maynard v. Maynard, 42 Md. On the ninth of May, appellant

App. 47, 50 (1979), which, in turn, we quoted in James v. James, 96 Md. App. 439, 450-51 (1993). In Maynard, we noted the

differences between alimony pendente lite and permanent alimony and cited to Nelson for the rationale underlying an award of alimony pendente lite. Section 12.24 of Nelson, as quoted in

Maynard, read as follows: 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

-6action 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 payments. Maynard, 42 Md. App. at 50. In James, the alimony issue before us was whether the chancellor should have considered educational expenses in making a pendente lite or temporary alimony award. In addition to

quoting from Maynard for the quotation of Nelson's factors found therein, we utilized those factors as if they were legitimate. In the case sub judice, there is no dispute as to the pendency of the matrimonial action in which the allowance is sought, the existence of the marriage between the parties, a probable cause of action or defense on the part of the appellee with a reasonable probability of his success at trial, and the ability of appellant to make the payments. James, 96 Md. App. at 453. Appellant latches on to the third Nelson factor and contends that the master ignored that factor, along with the others, and that appellee's evidence "was totally insufficient to meet the requirements for 'a probable cause of action with reasonable probability of success.'" His foothold is of our own making.

The Court of Appeals has not issued writs of certiorari for either case or cited the same. Our review of the citations to

-7each case, all from this Court, reveal that no mention is made of the Nelson factors. See Payne v. Payne, 73 Md. App. 473, 482,

cert. denied, 312 Md. 411 (1988) (Maynard); Rosenberg v. Rosenberg, 64 Md. App. 487, 535, cert. denied, 305 Md. 107 (1985) (Maynard); Bender v. Bender, 50 Md. App. 174, 182 (1981) (Maynard); Bunn v. Kuta, 109 Md. App. 53, 69 (1996) (James); Lemley v. Lemley, 102 Md. App. 266, 276 (1994) (James); Reuter v. Reuter, 102 Md. App. 212, 229 (1994) (James); Speropulos v. Speropulos, 97 Md. App. 613, 617 (1993) (James). The third Nelson factor is in direct opposition to Maryland common law. In McCurley v. McCurley, 60 Md. 185 (1883), the

Court recognized that an award of alimony pendente lite is made without an inquiry into the merits of the underlying action. [T]he chancery practice in this State, resting upon adjudicated cases, is so well settled that recourse to other authority is unnecessary to show that the right of the wife to require her husband, when she is living apart from him and without means of her own, to defray the expenses of prosecuting her suit for a divorce, is almost a matter of course, independently of the actual merits of the case; the Court exercising its sound discretion as to when and to what extent, as it may be advised in the progress of the case, such allowance shall be granted. Id. at 188-89. The Court cited to, among others, the cases of

Daiger v. Daiger, 2 Md. Ch. 335 (1850), Buck ex rel. Coles v.

-8Coles, 2 Md. Ch. 341 (1851), and Tayman v. Tayman, 2 Md. Ch. 393 (1851), for that proposition. In Coles, Mrs. Coles had come before the chancellor, John Johnson, praying for alimony pendente lite and for means to defray the costs and expenses associated with her suit for a divorce a vinculo matrimonii. At the outset, chancellor Johnson

noted the possibility that Mrs. Coles' suit might lack merit. It may turn out that the grounds upon which the interposition of the court is asked in the original bill, are not sufficient, even if established by the clearest proof, to entitle the party to a decree dissolving the marriage, though, in that event, a qualified divorce may be granted, if the causes proved to be sufficient to entitle the complainant to that relief . . . . Coles, 2 Md. Ch. at 346.1 He then referred to the general rule

pertaining to the granting of alimony pendente lite The general rule is clear and undisputed, that the wife, in these cases, is a privileged suitor, and that the court, without inquiring into the merits, and whether she be plaintiff or defendant, will allow her alimony, pendente lite, and a sum for carrying on the suit. The rule is believed to be almost universal, to allow a destitute wife, who has been abandoned, or is living apart from her husband, temporary alimony, and the means of prosecuting or defending a suit for divorce, and this without any inquiry whatever, into the merits.

Indeed, after a final hearing on the cause, Chancellor Johnson concluded that Mrs. Coles did not support her case for a divorce a vinculo matrimonii or a mensa et thoro. Coles, 2 Md. Ch. at 351-52.

1

-9Id. at 346-47. Chancellor Johnson's conclusion was grounded upon the research he conducted for Daiger. In Daiger, a case wherein a

wife petitioned the Court for an allowance of alimony pendente lite and money to pursue her suit, he candidly observed that [m]y impression, when the petition was first presented, was, that the court, at this stage of the cause, might, to some extent, at least, examine into the merits, and the order of the 12th of November last, authorizing the parties to take depositions, was passed under that impression, but, upon looking into the authorities, I have come to the conclusion, that such is not the practice, and that if an examination was instituted now, and a decision made, adverse to the application of the wife, it might have the effect of defeating her suit altogether, before the usual opportunity has been afforded of developing the full merits of the case; for if it be true, and in the absence of proof to the contrary, it must be assumed to be true, that she has no means of living, or of defraying the expenses of the suit, and if the court, upon a preliminary proceeding like the present, and before she is furnished with the means of procuring the attendance of witnesses, undertake to investigate, and decide upon the merits of the case, it is obvious that very few suits by married women against their husbands, can ever be prosecuted successfully. Daiger, 2 Md. Ch. at 336-37. Chancellor Johnson continued: The application presupposes, and is founded upon the allegation, that the wife is destitute of the pecuniary means of carrying on her suit, and, therefore, at that stage of the cause, to require her to show merits, or to engage in a contest with her husband, in

-10regard to merits, would expose her to almost inevitable defeat, not only in the particular application, but at the final hearing, for which, if her prayer for money to conduct the suit fails, she would be wholly unprepared. Id. at 337. The decision in Tayman is in accord with that of Daiger and Coles. And it must also be considered as settled, that upon an application by the wife for temporary alimony, and for money to carry on the suit, the merits will not be looked into, the allowance being made almost, if not entirely, as a matter of course. Such was the conclusion to which I came in the case of Daiger vs. Daiger, after an examination of numerous cases in this country and in England. Tayman, 2 Md. Ch. at 397. In 1947, in Dougherty v. Dougherty, 189 Md. 316 (1947), the Court of Appeals favorably quoted from Coles and pointed to the integrity of that decision. That case [Coles] has repeatedly been quoted or cited and followed by this court. Wives found to be at fault both by the lower court and on appeal have been held entitled to alimony, as well as 'suit money' (including counsel fees), pending appeal. Dougherty, 189 Md. at 320. The Court of Appeals acknowledged the

Daiger/Coles/Tayman principle eight years later in Frank v. Frank, 207 Md. 124, 130-31 (1955). This Court is also aware of the principle. See Carney v.

Carney, 16 Md. App. 243, 253 (1972); Stenger v. Stenger, 14 Md.

-11App. 232, 244 (1972). We have stated that the "purpose of

alimony pendente lite is to maintain the status quo of the parties pending the final resolution of the divorce proceedings," Speropulos, 97 Md. App. at 617, and that the award "is based solely upon need." (1983). With the passage of what is now

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