text:
    RICHARD von LUSCH et ux. v. BOARD OF COUNTY COMMISSIONERS OF QUEEN ANNE’S COUNTY ET AL.
    [No. 463,
    September Term, 1974.]

      Decided January 22, 1975.

      The cause was argued before Moylan, Powers, Gibert and Mason, JJ.

      Herbert W. Reichelt, with whom was James F. Vance on the brief, for appellants.

      James E. Thompson, Jr., Robert R. Price, Jr., and Franklin Goldstein, with whom was Vachel A. Downes, Jr., on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

This case makes its second appearance in the Appellate Courts. The first time that it was present, the Court of Appeals, speaking through Judge Barnes, reversed the Queen Anne’s County Circuit Court’s approval of a zoning text amendment adopted by the Board of County Commissioners of Queen Anne’s County (Board). See von Lusch v. Bd. of Co. Comm’rs, 268 Md. 445, 302 A. 2d 4 (1973). The Court, in reversing, found it unnecessary to decide three of the then five issues posed to it by von Lusch. The decision of the Court of Appeals turned on the Board’s passing of an ordinance in which both commercial and private, non-commercial, airports were classified as conditional uses notwithstanding the fact that the County Planning Commission had recommended a non-conforming use status for airports, and the public notice required by Md. Ann. Code art. 66B, § 4.04 had referred to non-conforming use. See Rasnake v. Bd. of County Comm’rs, 268 Md. 295, 300 A. 2d 651 (1973).

Following the reversal by the Court of Appeals, the Board once again embarked on a course designed to amend the ordinance so as to accomplish the result it seemingly desired. This time the Planning Commission recommended that airports, commercial and private, non-commercial, be classified as a conditional use and the public notice concerning the proposed amendment to the Zoning Ordinance so stated. Von Lusch was not mollified by the Board’s compliance with the holding of the Court of Appeals inasmuch as he desired that the use of the Bay Bridge Airport, owned by Kent Island Limited Partnership, should be “grounded”. Mr. von Lusch regarded the proposed amendment as “another crude, biased, unethical attempt to pull ... [Bay Bridge Airport’s] chestnuts out of the fire.” The Board, after making findings of fact, adopted the proposed amendment to the ordinance. In so doing the Board stated:

“We have had the testimony of Mr. and Mrs. von Lusch . . . and Mr. Stevenson typed by the reporter and we have read and reread the testimony. It is quite obvious that with the exception of Mr. Stevenson there is no objection to the proposed Ordinance except for that portion thereof which ‘blankets in’, by virtue of what might be termed a ‘grandfather’s clause ’, the Bay Bridge Airport. Obviously, if there is to be a ‘grandfather’s clause’ it must apply to all airports and the Commissioners cannot pick and choose among them. The existing airports have given us considerable concern but this is not the first time that we have faced a similar problem. Because our Comprehensive Ordinance did not adequately treat the relatively new craze of camping and camping trailer parks, this subject was studied by the Planning Commission, a recommendation made, hearing held, and new Ordinance adopted. At that time (because some existing trailer camps were principal permitted uses, some conditional uses, some accessory uses, etc.) the Planning Commission recommended and the County Commissioners adopted an Ordinance which ‘blanketed in’ all camping facilities regardless of their prior status as conditional uses and made all future application, in whatever district in the county, a conditional use to be heard by the Board of Appeals. We feel that the same situation prevails here and that we should be consistent.”

Von Lusch appealed to the Circuit Court for Queen Anne’s County, and thereafter filed a suggestion for removal. Md. Rule 542. The matter was removed to the Circuit Court for Cecil County where Judge H. Kenneth Mackey affirmed the Board’s adoption of the amendment to the Queen Anne’s County Comprehensive Zoning Ordinance, thus setting the stage for this appeal.

Von Lusch assigns seven reasons for this appeal. We shall discuss each of the contentions.

I

“The ordinance adopted is ultra vires and void for failure to accord with the statutory zoning purposes.”

The appellants in their brief set forth with only slight modification to bring their argument to date, where applicable, the same contention they made in, but which was not considered by, the Court of Appeals in von Lusch primus. The thrust of appellants’ argument is that while the amendment to the ordinance is directed, ostensibly toward all commercial and private, non-commercial airports, landing fields and air strips within the county it, in reality, is concerned solely with validating what von Lusch deems to be an existent invalid operation of Bay Bridge Airport. Appellants perceive some devious purpose on the part of the Board in adopting the amendment. The appellants seem to agree, however, that the aim of the ordinance is correct, but argue that the inclusion of Bay Bridge Airport within the scope of the ordinance is wrong.

The County Planning Administration testified before the Board that “aviation, airfields or railroads” simply were not mentioned in the “Master Plan” and when referred to in the Comprehensive Zoning Ordinance of 1964, the references thereto were “vague”. The present “Airport amendment” was recommended by the Planning Commission “[i]n order to correct prior omissions, vaguenesses and inadequacy regarding Airports, air fields, and landing strips” in the comprehensive zoning ordinance. There are, according to the Planning Administration, three airfields in Queen Anne’s County. The number of private landing strips was not stated.

The amendment assailed in this Court provides:

“BE IT ORDAINED, that Article 17 of the Comprehensive Zoning Ordinance be amended by adding new Sections 17.14, 17.14T and 17.142 to read as follows:
17.14 — Airports
In any district an airport, airfield, landing strip, seaplane base or any similarly designed area for the landing or taking off of aircraft, either as a principal use or accessory use, shall be a conditional use and subject to approval of the Board of Appeals, provided that:
a. The area shall be sufficient to meet with Maryland State Aviation Commission and applicable Federal requirements for the class of airport proposed.
b. No application for a commercial airport shall be considered, unless it is accompanied by a plan, drawn to scale, showing the proposed location of the airport, boundary lines, dimensions, names of owners of abutting properties, proposed layout of runways, landing strips or areas, taxi strips, aprons, roads, parking areas, hangars, buildings and other structures and facilities; the location and height of all buildings, structures, trees and overhead wires falling within the airport approach zones and less than five hundred (500) feet distant from the boundary lines of the airport. Other pertinent data such as topography and the grading plan, drainage, water and sewage, etc. may be required if deemed necessary by the Board of Appeals.
c. No application for a private, non-commercial airport shall be considered unless it is accompanied by a plan showing the proposed location of the airport, boundary lines, dimensions, names of owners of abutting properties, proposed layouts of runways, landing strips of areas, taxi strips, aprons, roads, parking areas, hangars, buildings and other structures and facilities; the location and height of all buildings, structures, trees and overhead wires falling within the airport approach zones and less than two hundred (200) feet distant from the boundary lines of the airport.
17.141
Every existing airport, airfield, landing strip, seaplane base or any similarly designed areas for the landing and taking off of aircraft whether the same be private, commercial or non-commercial existing as of the date of enactment of this amendment shall be deemed a conditional use as of that date but the same shall not be extended or enlarged by complying with the procedures set forth in Section 17.14. Provided further, however, that any existing commercial airport shall comply with that portion of Section 17.14 which requires a plan drawn to scale; said plan to be provided to both the Board of Appeals and the Planning Commission within six (6) months of the date of enactment of this amendment.
17.142
The enactment of Section 17.14, 17.141 and this Section shall supersede all other regulations regarding airports, airfields, landing strips, and the like set forth in this Ordinance whether as an accessory or principal use.’-’

The law of this State is well settled that the same presumption of correctness attaches to a comprehensive zoning amendment as attaches to a comprehensive zoning plan and the “change-mistake rule” is not applicable thereto. Scull v. Coleman, 251 Md. 6, 246 A. 2d 223 (1968); Roberts v. Grant, 20 Md. App. 247, 315 A. 2d 103 (1974), cert, denied, Court of Appeals, May 17, 1974.

There was substantial evidence before the Board to the effect that the original comprehensive zoning plan, with respect to airports, airfields and landing strips, was vague and inadequate. In the light of such evidence we cannot say that the Board, in amending the original comprehensive zoning ordinance, acted in a “clearly arbitrary, unreasonable and discriminatory manner.” Cassel v. City of Baltimore, 195 Md. 348, 73 A. 2d 486 (1950). Even though the appellants presented testimony to refute the desirability of the Bay Bridge Airport, the evidence, considered as a whole, was fairly debatable. Under such circumstances the Courts are not free to substitute their judgment for that of the zoning authorities. Scull v. Coleman, supra; Bosley v. Hospital, 246 Md. 197, 227 A. 2d 746 (1967); Missouri Realty, Inc. v. Ramer, 216 Md. 442, 140 A. 2d 655 (1958); Largo Civic Ass’n v. Pr. Geo’s Co., 21 Md. App. 76, 318 A. 2d 834 (1974).

II

“The ordinance is void for failure to make requisite findings in compliance with Art. 66B Sec. 4.05 (a).”

Appellants’ argument in support of the second contention is difficult to comprehend. They assert that the Board of County Commissioners’ adoption of the amendment divested the County Board of Appeals (Zoning Board) of its authority to consider the conditional use of airports, airfields and landing strips on a case by case basis. Appellants say that because the Board’s approval of the zoning ordinance amendment blanketed in all airports, airfields and landing strips there is nothing for the Zoning Board to do with respect to airports, airfields and landing strips. The objective of the amendment to the ordinance was to set forth a standard by which the Zoning Board would be guided in determining the establishment of “airports, airfields, landing strips, seaplane bases or any similarly designated area for the landing or taking off of aircraft, either as a public use or accessory use.” Furthermore, even the existing commercial airports are required to submit a plan to the Zoning Board within six months from the effective date of the amendment.

Because the 1964 comprehensive zoning law was vague and inconclusive with respect to airports, airfields and landing strips, the Board was of the opinion that a better standard for the regulation of airports and landing fields was desirous. The Board found:

“Based on the testimony given at the prior hearing, the recommendation of the Planning Commission, and the testimony and the Exhibits produced at this hearing, the County Commissioners find as a fact that adequate consideration concerning aviation, and in particular airports, airfields, landing strips, etc., was not given in either the Master Plan or the Comprehensive Zoning Ordinance. That airports are both desirable and necessary. That the proposed Ordinance is in keeping with the Comprehensive Plan and will not adversely aiYoct the public health, safety, morals, or general welfare but on the contrary will promote the same by having the Appeals Board consider each request on an individual basis and by using the guide lines suggested will protect both the general public and the adjoining properties.”

Appellants argue that the Board’s findings do not comply with Md. Ann. Code art. 66B, § 4.05 (a). That section mandates that:

“. . . Where the purpose and effect of the proposed amendment is to change the zoning classification, the local legislative body shall make findings of fact in each specific case including, but not limited to, the following matters; population change, availability of public facilities, present and future transportation patterns, compatability with existing and proposed development for the area, the recommendation of the planning commission, and the relationship of such proposed amendment to the jurisdiction’s plan; and may grant the amendment based upon a finding that there was a substantial change in the character of the neighborhood where the property is located or that there was a mistake in the existing zoning classification.” (Emphasis supplied).

We think the Board’s findings comply with Md. Ann. Code art. 66B, § 4.05 (a). Moreover, § 4.05 (a) appears to be aimed at the so-called “change-mistake rule” and thus directed toward an individual application for reclassification of a particular property, Hardesty v. Dunphy, 259 Md. 718, 271 A.2d 152 (1970), as distinguished from the creation of an entirely new countywide conditional use classification.

Ill

“The ordinance is void because the findings made do not support the action taken and are not based upon substantial evidence.”

The evidence, before the. Board, presented by both the proponents and opponents of the proposed zoning ordinance amendment, was substantial and fairly debatable. When the evidence is substantial and fairly debatable the action of the Board is neither arbitrary nor capricious. We think the findings of the Board are supported by the record, and thus it is not for the courts to substitute their judgment for that of the Board even if ’ we disagreed with the Board’s conclusion on the evidence. Pallace v. Inner City Land Co., 239 Md. 549, 212 A. 2d 262 (1965); Alvey v. Michaels, 231 Md. 22,188 A. 2d 293 (1963); Temmink v. Bd. of Zon. Appeals, 212 Md. 6, 128 A. 2d 256 (1957); Robertson v. Board of Appeals, 210 Md. 190, 122 A. 2d 751 (1956).

IV

“The ordinance is void because a year had not elapsed since the previous denial of the rezoning.”

We think this argument is devoid of merit. Appellants rely upon Md. Ann. Code art. 66B, § 4.05 (b) which proscribes “an application' for reclassification” where a prior application has been “opposed or denied” within twelve months from the date of the decision in the prior application. What appellants overlook is that in the instant case there was no “application for reclassification” either in the case now before us or in von Lusch primus. The action taken by the Board was based on a recommendation from the County Planning Commission which originated either with the Commission’s desire to correct the vagueness found in the original comprehensive zoning ordinance or as a result of the Board’s own initiative. Although the appellants see the specter of the Bay Bridge Airport behind the Planning Commission’s recommendation, the record simply does not justify that conclusion.

V

“The ordinance is void for failure to give due public notice in compliance with Article 66B, §§ 4.05 and 4.06(c).”

This contention of appellants is grounded upon the fact that the proposed zoning ordinance, as quoted above, was advertised as creating new sections 17.13 through 17.132 when, in fact, it created 17. H through '17.112. The law is clear that when there is a substantial difference between what is advertised as the proposed ordinance and the ultimate zoning text amendment, the local legislative body must re-advertise the new and substantially different proposed ordinance, and have a hearing thereon. Rasnake v. Bd. of Co. Comm’rs supra; von Lusch v. Bd. of Co. Comm’rs., supra. The question of the propriety of the public notice was not presented to Judge Mackey and is, therefore, not properly before us. Md. Rule 1085. If, however, it were before us, we would have no hesitancy, under the circumstances of this case, in holding that the mere discrepancy in the numbering of the particular sections of Article 17 of the Comprehensive Zoning Code of Queen Anne’s County, proposed for amendment was not substantial and hence the ruling of Rasnake v. Bd. of Co. Commr’s, supra and von Lusch primus would not be applicable.

VI

“The ordinance is void because the Board of County Commissioners is not authorized to grant a conditional use.”

Appellants’ sixth contention is but an offshoot of their second argument as presented to this Court. That the Board has by its Comprehensive Zoning Ordinance of 1964 conferred upon the Zoning Board the right to grant special exceptions, does not deprive the Board of its legislative powers to amend the zoning ordinance so as to create a new category of conditional uses over which the Zoning Board may then exercise control. We find no merit in the appellants’ contention.

VII

“Ancillary relief in the form of mandamus and injunction is appropriate in this case.”

This contention, while presented to the hearing court in the appellants’ pleadings, does not appear to have been decided by the court. Appellants, as part of their appeal to the Circuit Court, sought to have the operation of the Bay Bridge Airport enjoined until the property was properly reclassified. Appellants simultaneously endeavored to have the Board, by writ of mandamus, required to enforce the zoning law without regard to the amendment. The hearing judge’s affirmation of the action of the Board in adopting the amendment, mooted the injunction request as well as the prayer for mandamus.

Judgment affirmed.

Costs to be paid by appellants.

      . The Board amended the proposed ordinance so as to substitute the term conditional use for that of non-conforming use. The change is, as Judge Barnes observed, substantial. Non-conforming uses, under the Queen Anne’s County Zoning Ordinance, must be phased out within a two to five year period, subject to certain special exceptions. The placing of airports within the aura of a conditional use conferred “a special exception status [to airports] thereby making them a permitted conforming use not subject to phasing out or the other restrictions applicable to .. . non-conforming use status....”

      . Both Mr. and Mrs. von Lusch appealed to this Court. In this opinion whenever we refer to “von Lusch” we mean both husband and wife unless we have prefaced the reference by the masculine or feminine title of respect.

      . Mr. Stevenson is not a party to this appeal.


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    JESSIE C. FLOOD v. IDA MAE FLOOD
    [No. 465,
    September Term, 1974.]

      Decided January 23, 1975.

      The cause was argued before Orth, C. J., and Morton and Gilbert, JJ.

      Jeffrey I. Goldman, with whom were Bruce Spizler and Walker & McCadden on the brief, for appellant.

      Joseph J. Askin for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

I

This appeal first calls upon us to decide whether an adulterous wife may be awarded alimony upon the grant to an adulterous husband of a divorce a vinculo matrimonii on a nonculpable ground.

The Law

Courson v. Courson, 213 Md. 183, concerned an act of adultery by a wife who was living separate and apart from her husband by virtue of a divorce a mensa et thoro. A majority of the Court, over the vigorous dissent of two of its members, said flatly, at 188: “We hold the proper rule, supported by reason and authority, is that when a wife, who is living separate and apart from her husband due to his fault and who has obtained no more than a limited divorce from him, commits adultery, she forfeits her right to her husband’s support and the future payments of alimony.” The rationale of the holding was found in the language of the New Jersey Court of Chancery in the case of G_v. G_, 56 A. 736, 740, with which the majority of the Court of Appeals voiced complete agreement: “Under a divorce a mensa et thoro the marriage relation still exists, and with it the duty of chastity. Such a divorce is not license to the wife to indulge in sexual connection with another man .'. . .” 213 Md. at 188.

The Court of Appeals does not appear to have expressly departed from its holding in Courson. In Flanagan v. Flanagan, 270 Md. 335, however, although referring to Courson only with respect to the history of alimony in Maryland, and not discussing the Courson holding, it dealt with wrongdoing as affecting alimony. Pointing out that in determining an award of alimony, a court should consider, among other factors, “the circumstances leading up to the separation, the fault which destroyed the home”, it observed that it was firmly established that when a wife’s fault precludes her from procuring a divorce she is prevented from obtaining alimony. At 339. It followed that in a divorce action on culpable grounds where there was no right to a divorce, there was no right to alimony. And, the Court determined, its previous opinions which established the standards for fixing alimony were equally applicable in a nonculpatory divorce action. Thus, concluded the Court, although the parties’ economic circumstances are certainly of great importance, “any of their conduct which contributed to the destruction of the marriage is also relevant to a determination of what is just.” At 341. It spoke of the discretion of the chancellor in such matters:

“As each factual situation is unique, it is obvious that the chancellor must be entrusted with wide discretion in awarding alimony. This would include those cases in which he is required to consider the culpability of the parties by taking into account the circumstances leading up to that point in time when the couple, who have been joined in marriage to become one, separate and become two once more, as well as the fault which destroyed the home.” 270 Md. at 341.

The Court then distinguished acts of wrong doing. It held that “. . . in those suits in which the actions of the party seeking such a pecuniary award constitute the sole cause for

the demise of the marriage, and their wrongdoing consists of acts which are either adultery or abandonment, then, except in rare instances where there exist extremely extenuating circumstances, the award of any alimony would be an abuse of discretion.” At 341. As to acts causing the separation, other than adultery or abandonment on the part of one party, or fault on both sides which caused the separation, “... the chancellor should consider the parties’ degree of blame as well as their relative guilt in those cases when applicable and, in conjunction with [other factors to be considered], decide upon the proper award. In this thought process, the greater degree of fault on the part of the wife demonstrated, the greater the need which she must show to entitle her to an award of alimony appropriate to the circumstances otherwise existing.” At 341-342.

Thus, Flanagan clearly concerned acts which caused or contributed to the separation of the parties, and which, therefore, were necessarily committed before the marriage’s demise. Courson concerned acts committed after the separation of the parties was a fait accompli. Under Flanagan, if it is the wife’s act which is the sole cause for the demise of the marriage, and that act is adultery, she is precluded from obtaining alimony “except in rare instances where there exist extremely extenuating circumstances.” Under Courson, if the wife commits adultery after the separation, she ipso facto loses all right to alimony; not even the mercy of “extremely extenuating circumstances” is indicated in Courson. So, to this point of comparison, it seems that an adulterous act causing the demise of a marriage is to be treated with somewhat more leniency than an adulterous act committed after the separation and not contributing to it. But in either event, the general rule is that the wife is not entitled to alimony.

Flanagan leaves unanswered what happens in a nonculpable divorce suit when the actions of the wife seeking alimony do not constitute the sole cause for the demise of the marriage, but there is fault on both sides which caused the separation of the parties, and the fault of the wife is an act of adultery. We can only read Flanagan as holding that in such circumstances the chancellor should consider the degree of blame as well as the relative guilt of the parties, and, in conjunction with other factors to be considered, decide upon a proper award. As quoted supra, Flanagan declares: “The greater degree of fault on the part of the wife demonstrated, the greater the need which she must show to entitle her to an award of alimony appropriate to the circumstances otherwise existing.” We note that the degree of fault on the part of the adulterous wife may be mitigated if the contributory fault of the husband is also an act of adultery.

The holdings of Courson and Flanagan, read together, may not be disparate, but they are anomalous. Under Flanagan, a wife whose act of adultery, committed before the fact of separation, contributed to it, may be awarded alimony if the husband is also guilty of wrongdoing contributing to the separation. But if she commits adultery after the fact of separation, she may not, under Courson, receive alimony in any event.

The Facts

We turn to the facts of the case before us. On 19 November 1969 JESSIE C. FLOOD (Husband) filed an amended Bill of Complaint against IDA MAE FLOOD (Wife) in the Circuit Court of Baltimore City for a divorce a vinculo matrimonii on the ground that the parties had been separated for more than five years. After a decree pro confesso and receipt of uncontested testimony of Husband, a decree was entered on 2 September 1971, granting the divorce, giving custody of minor children to Wife with support of them by Husband, and awarding permanent alimony to Wife. Husband’s motion to review and correct the decree was denied and he appealed, attacking only that portion of the decree with respect to alimony. We held that a decree of divorce based on a nonculpatory ground did not exonerate Husband from the payment of alimony, but, we reversed that portion of the decree granting alimony. We thought that the chancellor did not have before him any evidence from which it appeared that Wife’s income was insufficient to care for her needs. Code, Art. 16, § 5 (a). He could not, therefore, properly award a specific sum as alimony. We remanded for further proceedings. Flood v. Flood, 16 Md. App. 280.

Further proceedings below pursuant to our remand resulted in the entrance of a decretal order on 2 July 1974. Husband was to pay:

1) $15.45 per week through the Probation Department for support and maintenance of the minor child of the parties;
2) unto wife through the Probation Department $25.75 per week as permanent alimony accounting from 8 March 1974, subject to further order of the court;
3) $7.50 per week arrearages;
4) $300 as a contribution to the counsel fee of wife’s attorney;
5) costs of the proceedings.

Husband appealed. He first asks: “Can the Court award alimony to a wife in a nonculpatory divorce action when it is shown that she committed adultery during the period of separation? ”

The Decision

The chancellor found as a fact from the evidence adduced at the hearing that the fault which destroyed the home was Husband’s conduct. He found that Husband had committed adultery. He elaborated on Husband’s conduct — “... his continual going around with women, his admission which was not denied that he is the father of a child, the mother of which is not Mrs. Flood. The fact that the various women were in the home during the absence of Mrs. Flood on one occasion for six weeks,.... The argument that ensued as a result of the wife quite naturally confronting the husband with this behavior, I remember when I say this behavior, I mean staying away from home a great deal, staying out late at night, arguing with her, beating her. When she confronted him with that he not only admitted paternity, but he in effect told her to get out. So, looking at the totality of all those factors, I do find as a fact clearly that his conduct destroyed the marriage.” There was evidence sufficient to support these findings. The chancellor also found that Wife had committed adultery in 1968, and there was evidence sufficient to support that finding. On cross-examination she was asked if she knew a James Jones. She admitted she did. She was extensively questioned on cross-examination, redirect examination, re-cross-examination, and by the court at various times, with respect to whether she had sexual relations with Jones after she and Husband were separated in 1957. The net result of all the inquiries was that she did not remember whether she had sexual intercourse with Jones. But when she was asked if she “had intercourse with any other person other than your husband since you separated,” she replied, “Sure, I have. I’m human, ain’t I? ” On the other hand, Jones was positive that she had intercourse with him. He testified that in July 1968 he was in Baltimore looking for a job and lived for a week in her home. During that time he had sexual intercourse with her “in her front bedroom where I was sleeping . . . three times in that one night.”

The chancellor found it significant that the adultery of the wife occurred well after the separation of the parties, and did not contribute to the demise of the marriage. It troubled him, however, “in the sense that she is not blameless and she cannot get away from the adultery by saying I am only human, because that is persuasive to me, but the law is the law, and the law says you cannot commit adultery, but if you look at her adultery as compared to the other factors such as Mr. Flood’s adultery, persistence of it, the fact that he had a child, the fact he was brutal and sent her to a hospital, also this is uncontradicted, particularly as corroborated by Mrs. Davis who said he didn’t act as he should have, the fact that he stayed up all hours of the night, that he went with women. If you look at the test, it is ninety per cent his fault and ten per cent her fault.” He concluded that she was entitled to alimony. In doing so he relied on Flanagan.

We would have no difficulty arriving at a resolution of the question along the path charted by Courson. Like Courson, here the fault of the husband caused the demise of the marriage. Like Courson, here the wife committed adultery after the fact of the separation of the parties. That in Courson the parties were legally separated by an a mensa divorce where here they were voluntarily separated, but not under legal aegis, is a distinction without a difference. If all we had to look to was Courson, we would be obliged to hold the Wife forfeited her right to Husband’s support and the payment of alimony. But we have Flanagan also, and its light casts shadows on Courson’s path. For reasons we have indicated, we are hard pressed to apply the strict rule of Courson in the light of Flanagan. We think that Flanagan tempers Courson’s rule, sub silentio, or by implication, or by practical necessity in the interest of justice, at least, as it may have been applicable in the factual posture of the case here reviewed.

We hold that in the facts and circumstances of the case before us, Wife did not forfeit her right to payment of alimony by her adulterous act.

II

Husband next asks on appeal:

“In determining the amount of alimony to be awarded, does the party who asserts an inability to work, in order to sustain a greater award, carry the burden of proving the same? ”

Ability to work is a factor to be considered by the chancellor in arriving at a proper award of alimony. Timanus v. Timanus, supra. The chancellor found as a fact that Wife was not able to work. He said:

“I say that with a great deal of reluctance, because there is no medical testimony one way or the other. All I have is a report from the hospital which does show a rather serious operation in October of last year, but I don’t know whether that would prevent her from working. It is significant after a month after that she did work for four days, but then she was not able to work she says beyond that period.
“Neither side has presented medical evidence, so I am just left with her statement plus this discharge summary, and all I can say is as of this point I am not convinced she can work. I will go along with Mr. Smelkinson’s [Husband’s attorney] point that probably this lady — I say ‘this’ most kindly — probably if this lady were to lose some weight she might well not only be able to work, but be much healthier and in much less danger, but that is not my place to determine.”

Wife testified that the last time she was employed was in October of 1973 when she worked for Life Like Products fixing lights and toys. She worked four days and had to go to the hospital. She asserted that she was not able to work. “It is my back and my side. I’m diabetic and I have high blood pressure.” She said she went to the doctor every week, and sometimes twice a week. Other than the four days in 1973,

the last time she worked was in 1967 when she did cleaning work in an office building. A discharge summary of the Maryland General Hospital covering the period 25 October 1973 to 9 November 1973 when Wife was confined in the hospital, was received in evidence. It noted that physical examination “ [o]n admission revealed an extremely obese black female in mild distress.” She “... has been known to have diabetes mellitus, acute pyelonephritis, hypertension and possible acute papillary necrosis in the past. She was at Maryland General Hospital in April, 1973 with the above diagnosis.” It was signed by James Kleeman, M.D. The court inquired if Dr. Kleeman had seen her recently. She said she had seen him “last Thursday — last Friday, and this last past Wednesday.” He tested “my blood, you know, and my urine.” He did not tell her anything and she was to go back to him next week. He gave her medication, “pressure pills. I have pills that I have to take for this operation that I had.” It appeared that this operation was for the removal of a kidney stone. She takes them four times a day and has been taking them since 1964. She also took insulin for diabetes. The only • income she had, “excusing my daughter give me twenty-five dollars”, was $140 a month from “the Welfare.” Assuming for the purpose of decision, that the party who asserts an inability to work must carry the burden of proof, Wife met this burden. The chancellor was satisfied, albeit, somewhat reluctantly, that she was unable to work, and as there was evidence to support this conclusion we cannot say he was clearly erroneous in his judgment thereon. Maryland Rule 1086. Husband complains about the absence of more probative medical evidence on the point. We observe that had he desired that she have further medical examination, he could have made proper request to that end.

Ill

Husband lastly asks:

“Can trial Court increase child support, sua sponte, where no request or petition has been filed for same? ”

Wife does not meet the question. She argues only that the increase was warranted, but that is not the point Husband makes. She suggests that the power to compel the payment of support for minor children is “inherent in the Trial Judge in Equity Court.” She does not, however, discuss this power in the light of Woodham v. Woodham, 235 Md. 356. The Court said in Woodham, at 361:

“We think that the chancellor was in error, however, in increasing the support payments to the child from $20 to $50 sua sponte. Appellant, as custodian for the child, made no request for an increase. The court in its opinion simply stated as a conclusion that since the child was older her needs were greater, and that since the support payments to Mrs. Woodham had been terminated, the appellee would now have the primary responsibility for the child’s support. No testimony was taken specifically directed to the child’s needs, but it was brought out at the time of the hearing that she was earning $12 a week which she was allowed to retain. Of course, the support for the girl is subject to modification, but if it is to be increased there must be some formal request for it, supported by evidence of the necessity for modification of that part of the decree.”

In Beshore v. Beshore, 19 Md. App. 474, 479, we quoted this language of Woodham with complete approval and applied its holding. See Gatuso v. Gatuso, 16 Md. App. 632.

Husband’s attorney was right. We think that Woodham is dispositive of the question. Wife made no formal request to increase the amount to be paid as support for the child. Therefore, the action of the chancellor with respect thereto was improper. The decretal order of 2 July 1974 is modified to reduce the payments to Wife through the Probation Department of the Supreme Bench of Baltimore City for the support and maintenance of Michael Flood, the minor child of the parties, to the amount ordered in the decree of 2 September 1971, namely $10.30 per week, and, as so modified, is affirmed.

Decree of 2 July 197U modified as set out in this opinion, and as so modified, affirmed; costs to be paid by appellant.

      . Adultery is a crime in Maryland with a fine of $10 as the authorized punishment. Code, Art. 27, § 4. It has been held that the legislature intended “adultery” as a crime to carry its common law meaning, that is,' criminal conversation with a man’s wife, the test being whether the woman was married. Evans v. Murff, 135 F. Supp. 907 (D. Md. 1955); Hughes v. State, 14 Md. App. 497, 505, n. 7. Cf. Cole v. State, 126 Md. 239. Code, Art. 16, § 24, however, establishing causes, of which adultery is one, for an a vinculo divorce is not penal in nature, but prescribes a remedy by civil suit for the violation of marital obligations. Dimpfel v. Wilson, 107 Md. 329; Elliott v. Elliott, 38 Md. 357; Herbert v. Gray, 38 Md. 529. We believe that “adultery” as used in the divorce statute is not restricted to its common law meaning but has the more general meaning of voluntary sexual intercourse between a married person and a partner other than the lawful husband or wife. See The American Heritage Dictionary of the English Language. We find this to be self evident in the opinions of the Court of Appeals dealing ■ with adultery as a cause for divorce. And see Shanbarker v. Dalton, 251 Md. 252,257.

      . Technically, “Alimony is a money allowance payable under a judicial decree by a husband at stated intervals to his wife, or former wife, during their joint lives or until the remarriage of the wife, so long as they live separately, for her support and maintenance.” Knabe v. Knabe, 176 Md. 606, 612. See Foote v. Foote, 190 Md. 171; Bart v. Bart, 182 Md. 477. Code, Art. 16, § 3, declares: “In cases where a divorce is decreed, alimony may be awarded.” The Court of Appeals reads “alimony” in this legislative declaration “not in the technical sense of the word, but as commensurate with ‘support’.” Clayton v. Clayton, 231 Md. 74, 77. See Dackman v. Dackman, 252 Md. 331. Although we need not go beyond the technical meaning of alimony in determining the case before us, nothing we say in this opinion is to be construed as implying that an equity court either may or that it may not make a pecuniary award in the nature of “alimony” payable by a wife to her husband. We shall decide that question when it is before us. See Colburn v. Colburn, 20 Md. App. 346.

      . The Court noted that it had not been required in the suit to pass upon the right of a wife, who has been granted an absolute divorce and alimony and who thereafter commits “adultery”, to continue to receive support from the former husband. It specifically refused to express an opinion thereon at the time. 213 Md. at 188-189. See Atkinson v. Atkinson, 13 Md. App. 65.

      . From Timanus v. Timanus, 178 Md. 640, 642.

      . The authority for allowing alimony is statutory, but the standards governing its award are judicial. Willoughby v. Willoughby, 256 Md. 590.

      . The Court said, 270 Md. at 340: “This is logically so and there is nothing in the public policy of Maryland as expressed in the statute to the contrary.”

      . Code, Art. 16, § 5 (a) prescribes that alimony or counsel Les may not be awarded “. . . unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs.”

      . Some of the factors to be considered were enunciated in Timanus v. Timanus, supra, at 642 and quoted in Flanagan at 339:
      “ ‘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 added.)”

      . We can see no practical distinction, under the Courson rationale alone, between a legal separation under an a mensa divorce and a separation in fact with the marriage relation in full force and effect.

      . The original Bill was filed 22 June 1964, alleging that Wife deserted Husband on or about 27 January 1957. An amended Bill was filed 9 August 1967, giving the cause for divorce that the parties had voluntarily lived separate and apart for more than 18 months.


author: Moore, J.,

text:
    NATIONWIDE MOTOR SALES CORPORATION v. MELVIN EDWARD TRUSTY
    [No. 254,
    September Term, 1974.]

      Decided January 28, 1975.

    The cause was argued before Thompson, Moore and Lowe, JJ.

      Howard I. Getlan, with whom were Edelstein & Getlan on the brief, for appellant.

      Archie D. Williams for appellee.
   Moore, J.,

delivered the opinion of the Court.

A passenger on a Greyhound bus was injured when a vehicle operated by a person other than the owner collided with the bus. In a declaration thereafter filed in the Superior Court of Baltimore City the passenger named Greyhound Lines, Inc. as well as the owner and the driver of the car as parties defendant. The owner and driver subsequently filed a third party claim against appellant, Nationwide Motor Sales Corporation, from which the car had been purchased some three weeks prior to the accident. Nationwide’s liability was predicated upon breach of warranty by reason of an alleged defective accelerator. The Sheriff’s return showed service upon Nationwide on September 25,1971.

A verdict was returned against the driver on November 14, 1972 and thereafter, on January 29, 1973, he obtained a judgment by default against Nationwide based upon the latter’s failure to plead to the third party claim. Invoking the court’s authority under Maryland Rule 625, Nationwide filed a motion to strike the judgment by default on the ground, inter alia, that it had never been served. Approximately one year later, on February 14, 1974, Nationwide’s motion was denied “without prejudice.” Some ten days thereafter, a new motion to strike the default judgment was filed; again asserting lack of service of process but also claiming a meritorious defense.

What next transpired — the taking of testimony on the second motion to strike — is related to us only in the briefs of the respective parties. All the record reveals is the following “Ruling by the Court” on April 18,1974:

“Third-Party Defendant Nationwide Motor Sales Corporation’s Motion to Strike Judgment came on for rehearing on Wednesday, April 10th. After hearing argument and extending counsel an opportunity to submit memoranda in support of their respective positions, it is the Court’s opinion that the Nationwide Motor Sales Corporation’s Motion to Strike Judgment be and is hereby DENIED.”

It is from that ruling that Nationwide has appealed, claiming that the trial court, possessing revisory power over the default judgment under Rule 625, abused its discretion in failing to strike the judgment. Reliance is placed not only upon testimony before the court on the motion to strike (including especially the testimony of the mechanic who inspected the vehicle for Nationwide prior to its sale) but also upon testimony of the driver of the car, appellee, Melvin Lee Trusty, during the trial of the original action. While both briefs are replete with transcript references, the record contains no transcript — or partial transcript — either of the trial or of the hearings on the motions.

It is the responsibility of the appellant to include in the record “a transcript of all the testimony.” Maryland Rule 1026 c 2. Failing this, or in the absence of a written stipulation as contemplated by the Rule, a motion may be made for permission of the court to correct the omission. Maryland Rule 1027 b. See White v. State, 8 Md. App. 51 (1969). It must be shown, however, that the failure to transmit the record, as defined in Rule 1026 b, was occasioned by the neglect, omission or inability of the clerk of the lower court, the court stenographer or appellee. Rule 1025 d. Laukenmann v. Laukenmann, 17 Md. App. 107, 299 A. 2d 466 (1973).

We observe also that appellee’s counsel should examine the record before its transmittal to this Court. Had this procedure been followed in the instant appeal, a motion to dismiss by the appellee under the provisions of Rule 1036 would have been indicated.

In the state of the record before us, we have no alternative than to dismiss the appeal sua sponte pursuant to Maryland Rule 1035.

Appeal dismissed; appellant to pay the costs.

      . A verdict was also returned against Greyhound Lines, Inc. The court, however, granted Greyhound’s motion for judgment n.o.v. on January 15, 1973. A directed verdict had previously been granted in favor of the owner.

      . As we see it, no exercise of discretion under the first sentence of Rule 625 a was involved. The denial of the original motion “without prejudice” was not, of course, effective to extend the thirty day period during which the court has revisory power and control over a judgment. Appellant could, of course, proceed under the latter part of Rule 625 a seeking relief on the basis of “fraud, mistake or irregularity” and the existence of a meritorious defense. Williams v. Sriyder, Adm’r, 221 Md. 262, 267-8 (1959); Suburban Properties Management, Inc. v. Johnson, 236 Md. 455, 459 (1964).


author: Menchine, J.,

text:
    ROBERT M. LEATHERBURY et ux. v. FRANK PETERS et al.
    [No. 120,
    September Term, 1974.]

      Decided February 13, 1975.

      The cause was argued before Moylan, Menchine and Davidson, JJ.

      William W. Grant for appellants.

      James Alfred Avirett and W. Dwight Stover for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Robert M. Leatherbury and Phyllis Leatherbury, his wife (Leatherburys), filed a bill asking that prospective use of property for a quarry operation be declared a nuisance; that its owners be enjoined from using the property for quarry purposes and that they have other and further relief. The action was filed against Gaylord Fuel Corporation, doing business as Gaylord Stone, a Virginia corporation (Gaylord) as owner, against James Paul Sebold and Edna Sebold, his wife, as mortgagees and against Frank Peters as President of Gaylord. On motion and over the objection of appellants, the individual defendants were dismissed as party-defendants. The case then went to trial on the merits against Gaylord, resulting in an order dismissing the bill of complaint. The Leatherburys have appealed.

The bill of complaint had alleged that the Leatherburys were the owners of an 80 acre parcel of land in Garrett County, Maryland, and that Gaylord was the owner of a 33.06 acre parcel of land adjacent thereto; that Gaylord was proposing to operate a limestone quarry upon its land in such a way that: the discharge of waste waters from the quarry into nearby Hoyes Run; the discharge of limestone dust into the air; and the loud noises resulting from its operation would combine to make the Leatherburys’ home unfit for use as a dwelling. It was alleged that limestone dust, noise and water pollution from the respondent’s quarry would constitute a nuisance; would cause irreparable injury; that the nuisance would be continuing and thus would result in a multiplicity of suits unless operation of the quarry was enjoined. It was not alleged that there was a zoning impediment in the proposed use of the land.

It is well-established that courts of equity may intervene to prohibit a threat of harm that has not yet occurred. A leading case in the country is Hamilton Corporation v. Julian, 130 Md. 597, 101 A. 558. In Hamilton the Court said at 601-02 [560]:

“The real question in all such cases, as stated by the authorities, is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and as in view of the circumstances of the case is unreasonable and in derogation of the rights of the party.”

See also: Prosser, Law of Torts, Ch. 15, § 90 at 603 (4th ED. HB, 1971); Annotation 7 A.L.R. 749, et seq.

In the subject case there was directly conflicting testimony by witnesses offered by the Leatherburys on the one hand, and by Gaylord on the other upon the question whether there would be such discharge of waste water, or such discharge of dust into the air, or the creation of such noises as would be naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits. The trial judge heard this conflicting testimony and said in his written opinion:

“The operation of a stone quarry is an essential and lawful business and is not a nuisance per se; furthermore, the court was more impressed with the expert witnesses produced by the Respondents than those of the Complainants, especially with reference to new and modern scientific advances and developments of modern machinery for the control of noise, air and water pollution. The testimony being in effect that there would be no undue noise, air or water pollution which would constitute a nuisance or violate any governmental regulation or standards pertinent to the operation of a stone quarry.”

The record on appeal furnishes abundant support for the finding of the trial judge. We cannot find his determination to be clearly erroneous. Rule 1086.

In such circumstances the case is controlled by City of Bowie v. County Commissioners, 260 Md. 116, 271 A. 2d 657, and cases therein cited. In City of Bowie the Court of Appeals restated with approval the language used in the earlier case of Adams v. Michael, 38 Md. 123 (1873), saying at 126-27:

“ ‘The granting of injunctions on applications of this character [enjoining prospective harm] involves the exercise of a most delicate power, and the Court is always reluctant to act except in cases where the right is clear and unquestioned, and the facts show an urgent necessity. The general rule is, that an injunction will only be granted to restrain an actual existing nuisance-, but where it can be plainly seen that acts which, when completed, will certainly constitute or result in a grievous nuisance, or where a party threatens, or begins to do, or insists upon his right to do certain acts, the Court will interfere, though no nuisance may have been actually committed, if the circumstances of the case enable the Court to form an opinion as to the illegality of the acts complained of, and the irreparable injury which will ensue.’ ”

The testimony in the subject case falls far short of such a showing.

In a second string to their bow, the Leatherburys contend that Natural Resources Article Section 1-302 confers upon them special standing to sue stemming from the following language in subsection (d):

“Each person has a fundamental and inalienable right to a healthful environment, and each person has a responsibility to contribute to the protection, preservation, and enhancement of the environment.”

We hold that accomplishment of the purposes sought to be subserved by Sections 1-301 to 1-304, inclusive, of that Article (Ch. 702, Acts of 1973) was committed by the Legislature to “State Agencies” as therein defined. The Legislature did not intend to create new or enlarged actionable rights under the statute.

We will not assume that State Agencies will not abide by the strictures of those sections of the code, or assume that the State Department of Health and Mental Hygiene will shirk the statutory obligation imposed upon it by Article 43, Section 691, et seq.: (a) to establish standards for air quality control; (b) to assure the enforcement of such standards or (c) to properly authorize issuance of required permits.

The decision that we have reached makes it unnecessary to consider: (1) the propriety of the order dismissing the complaint as to the individual defendants; or (2) the propriety of the rejection of evidence as to the value of appellants’ property on the issue of damages.

We find no error.

Order dismissing Bill of Complaint affirmed.

Costs to be paid by appellants.

      . We note that the Department is conscious of its obligation under law and active in carrying out its mandates. See: Maryland Register, Volume 1, No. 3, p. 167; No. 4, p. 231; No. 5, p. 258; No. 6, p. 307.


text:
    FREDERICK CHARLES BACK et al. v. THE REISTERSTOWN LUMBER COMPANY
    [No. 155,
    September Term, 1974.]

      Decided February 13, 1975.

      The cause was argued before Orth, C. J., and Powers and Moore, JJ.

      B. Conway Taylor, Jr., and Robert M. Wright, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellants.

      W. Lee Harrison, with whom was Cooper C. Graham on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, May 23,1975.

   Moore, J.,

delivered the opinion of the Court.

This case, involving lien claims for building materials and supplies, arose out of the subdivision of a small parcel of real estate located at Hunt Road and Denby Road in Baltimore County and its development into seven improved lots. An appeal was taken from a decree of the Circuit Court for Baltimore County (Maguire, J.) ordering enforcement of lien claims for building materials and supplies against Lot 4, owned by appellants Back; Lot 5, owned by appellants Culotta and Lot 7, owned by appellants Mott. The appellants have paid the contractor for the materials and supplies. Their exposure to the lien claims of the supplier results from the forgery of the supplier’s signature to releases of liens.

On behalf of all appellants, it is contended that the supplier, the Reisterstown Lumber Company, may not claim entitlement to liens for items furnished prior to ninety days from the dates of its written notices of lien claims given pursuant to the Mechanics’ Lien Law then in effect, Art. 63, § 11 (a). In addition, on behalf of appellants Culotta only, it is argued that Reisterstown failed to prove delivery of certain materials on August 21, 1969, within the above ninety day period.

I

The entire parcel was originally owned by the appellants Mott. Prior to 1967 Mr. and Mrs. Mott decided to subdivide the land, to retain one lot for their own residence and to sell the others. Mr. Mott, a registered professional engineer, entered into a “50-50 partnership” with one John E. Wiser for the construction and sale of houses on the other lots. Both partners were engaged full time in other employment. Mr. Wiser was to handle advertising, selling and financing; Mr. Mott prepared the plans and specifications. The venture engaged as builder the firm of Winter Construction Co., Inc., of which Walter R. Winter, then 33, was president. The partners had known Mr. Winter for three or four months before signing an agreement with him for the construction of a house on Lot 3 in late May, 1967 and were familiar with his construction work in the nearby area. Each of the houses was to be custom built. The prospective buyer would first acquire title to the lot and obtain his own construction loan. Thus the partnership put up no funds for construction, its only expense being for engineering and surveying. For each house, a construction agreement was entered into between Mott and Wiser as “Developer” and Winter Construction Co., Inc. as “Contractor.” When work was commenced on the first house. (Lot 3) there was no purchaser. The house was bought, however, when half-completed and was then finished to the purchaser’s requirements. Thereafter, there was no predetermined schedule of construction. As Mr. Mott explained in response to a question from the chancellor:

“A. We normally, we were overlapping at the end of one — if I might answer it this way, Your Honor, we were overlapping finishing one house and starting another. We had no set schedule. We were completely dependent upon when our client showed up.”

The eventual sequence of construction was as follows, the dates being the dates of commencement, not completion:

Lot 8 — May, 1967 Lot 2 — October, 1967 Loti — December, 1967 Lot 5 — March, 1968 Lot 4 — May, 1968 Lot 7 — July, 1968

Winter Construction Co., Inc. received its final draw payment for each house upon presentation of a mechanic’s lien release sheet, as required by the respective lenders. In November, 1968 the partnership and the home purchasers became aware of claims of Reisterstown Lumber Co., Inc. for unpaid deliveries of materials and supplies in fairly substantial sums. The president of Reisterstown, Charles R. Forbes, Jr., characterized as forgeries the signatures on behalf of his company appearing on the releases of liens. Mr. Winter could not be produced as a witness at the time of trial and the court received in evidence, at the instance of the appellants, his deposition taken on February 7,1969.

The material delivered by Reisterstown to the three properties in question together with the relevant dates, according to the supplier’s records and contentions, may be tabulated as follows:

Lot 4 (Back) Lot 5 (Culotta) Lot 7 (Mott) Date of first delivery Date of last delivery Date of Notice Total claimed (less interest) Amt. in 90-day period prior to Lien Notice 5/3/68 3/36/68 7/2/68 9/16/68 8/21/68 11/1/68 11/18/68 11/13/68 1/9/69 $1,073.25 $7,563.59 $9,135.22 $ 116.66 $14.36 $1,316.94

Appellants Back and Mott do not contest the fact of delivery pursuant to the lien notice. Appellants Culotta, however, deny that the last delivery in the amount of $14.36 on August 21, 1967 was in fact madé. (The next preceding delivery to the Culottas was on August 9, 1968 and was thus outside the statutory ninety day period.) It is the position of all appellants that the liens properly attach only for specific deliveries made within ninety days of the lien notice, in the amounts above tabulated, and not for all prior unpaid deliveries. The chancellor concluded that the latter contention was unsupportable and that the delivery of the materials to the Culottas on August 21 had been established. He therefore decreed that the respective liens be enforced. For the reasons hereafter stated we do not find error. Maryland Rule 1086.

II

The issues raised call for a construction of Section 11 of the Maryland lien law which provides that if “the contract” for furnishing materials is made with any person except the owner of the lot on which the building may be erected, the supplier shall not be entitled to a lien unless, within ninety days after furnishing them, he shall give notice in writing to the owner of his intention to claim a lien. “The purpose of this notice is to inform the property owner of the nature and amount of the claim intended to be fixed as a lien upon his property, in order that he may be able to protect himself in his future dealings with the contractor.” District Heights Apartments v. Noland Company, Inc., 202 Md. 43, 95 A. 2d 90 (1953).

The principal controversy involving the parties (including the Culottas) centers on the fact that, as shown by the tabulation above, most of the materials and supplies were delivered to each of the sites more than ninety days prior to the dates of the respective notices of intention to file liens. In essence, the three appellants contend that each order and delivery constituted a separate “contract” as that term is employed in Section 11 and, therefore, that the lien claims must be limited to the amount of materials delivered in the 90-day period prior to the notice. Reisterstown Lumber, on the other hand, contends in effect that there was a single open account contract and that the notices reach all the deliveries because they were given within ninety days from the last delivery to each site.

The factual context in which the resolution of these issues must be made is further reflected in the following tabulation of orders and deliveries to the respective sites based upon the lien claims and the particulars thereof:

Orders Deliveries Delivery Dates Total Invoices Lot 4 (Back) 44 37 5/3/68-9/16/68 $6,480.47 Lot 5 (Culotta) 57 42 3/28/68-8/21/68 $7,563.59 Lot 7 (Mott) 41 37 7/2/68-11/1/68 $9,135.22

These orders and deliveries were not made pursuant to an express contract. The evidence before the chancellor concerning the arrangements between the supplier and the builder may be summarized as follows:

1. A sales representative of Reisterstown for more than 25 years, Mr. Jacob M. Hundertmark, called upon the builder, Mr. Winter, at the construction site of Lot No. 3 (the first to be improved) when the builder had completed only the foundation work. In this way, the relationship between the supplier and the builder presumably began.
2. The evidence was conflicting as to whether estimates were supplied by the lumber company and if so, their number and extent. According to the deposition of the builder, there was at least one estimate. The president of the company did not recall any estimates. The salesman, Mr. Hundertmark, testified that he prepared several estimates for building materials which Reisterstown could supply. The estimates, he testified, included lumber, millwork, roofing, flooring and insulation. Estimates were not given for all of the houses, he testified, because “Mr. Winter said he was satisfied with our material and prices and our delivery.”
3. Orders for materials and supplies were given by the builder on an average of twice each week, either to the salesman at the job site or by telephone call to him at the company’s offices or at the salesman’s home. According to Mr. Winter’s deposition, he called Reisterstown “practically every day.” He also ordered from other suppliers but “mostly I called Reisterstown.. ..”
4. The orders would be designated at the offices of Reisterstown by lot number for the respective homes and deliveries were made usually on the day the order was received, trucked to the site by the lumber company.
5. The contractor was given wholesale or builders’ prices and was billed on open account once each month. As shown by the particulars, the items sold fell into the category of building materials, hardware and millwork.
6. Less than all the materials and supplies required for the construction of the several houses came from Reisterstown Lumber Company. The builder was free to purchase from other suppliers and did so. According to the testimony of the salesman, however, Reisterstown provided “the majority” of the building materials which went into the houses constructed on Lots 4, 5 and 7.
7. Most of Reisterstown’s supply business was done without an express contract.

The leading case involving the meaning of the term “contract” in Section 11 of the lien law is Trustees of the German Lutheran Church v. Heise, 44 Md. 453, decided by the Court of Appeals in 1876 in an opinion by Judge Alvey. The chancellor in the instant appeal took careful note of the pronouncements of the Court in Heise. With respect to the meaning of the term contract, the Court of Appeals there stated (p. 469):

“The lien law, Code, Art. 61, secs. I, II, speaks of the contract for furnishing work or materials to the builder, or other person than the owner; but we do not understand from this that it is incumbent upon the claimant to establish the fact that there was an express antecedent contract made with respect to the exact quantity of work or materials to be done or furnished by him.” (Italics in original.)

Immediately thereafter the Court set out the following standards to be applied in the absence of evidence of an express contract:

“In the absence of evidence of such express contract, the character of the account, the time within which the work was done or the materials were furnished, and the object of the work or materials, may afford proper grounds for the presumption that the work was done or the materials were furnished with reference to an understanding from the commencement that such work or materials should be done or furnished, if required by the builder; and in such case, it is from the last item in the account that the notice, and the time within which to take the lien, should date. If this were not so, in every case where there is no express contract, the mechanic or material man would be under the necessity of taking several liens during the progress of a single building.” (Emphasis added.)

Further, the Court in Heise delineated the circumstances where the above presumption did not arise (p. 470):

“But where the materials are furnished for separate and distinct purposes, or at different times, and at considerable intervals, or under distinct contracts or orders, though to be used by the contractor or builder in executing one and the same contract with the owner, no such presumption will arise, and the right to take the lien must date from the time of furnishing the different parcels of material, and not from the last item in the account.” (Emphasis added.)

In Heise, the Court had before it the bill to enforce a lien by Heise and Company, the supplier of the lumber used for the construction of the church. (The proceedings were consolidated with a bill to enforce the lien claim of a partnership which furnished the bricks.) The Court rejected the argument that the lumber was not furnished under a continuous contract and concluded that the court below was correct in regarding the lien as established. The language of the Court of Appeals in reaching this conclusion casts further illumination on the question before us:

“In this case, there was such a continuous dealing, and running account of the materials furnished, and the deliveries were at such short intervals, and in such quantities, that the presumption arises that it was understood from the beginning that the claimants were to furnish the materials charged for as they were required in the progress of the building. And this presumption, we think, upon a fair construction of the evidence, is not overcome or removed by anything stated either in the testimony of William Heise, or his witness, J. G. Jones.” (p. 470).

In the instant appeal, there was also continuous dealing, a running — on open account — for the materials furnished, and the deliveries were at short intervals, over a period of four to five months when the construction of the three houses overlapped. This is shown in the suppliers’ records which are impeccably detailed. And, of course, in each instance and for each lien claimed, the materials were furnished for the same general purpose — the building of each house. It is true, as appellants emphasize, that the contractor was free to purchase elsewhere and did so. The Court of Appeals has held, however, in a case subsequent to Heise, that it is not incumbent upon the lienor to show that the agreement with the general contractor was entire and indivisible or that there was an intention from the beginning to furnish all the material that would be required by the contractor. Caltrider v. Isberg, 148 Md. 657, 664, 130 A. 53 (1925).

We find entirely proper the chancellor’s application of Heise and also his reliance upon Humphrey v. Harrison Bros., Inc., 196 F. 2d 630 (4th Cir. 1952) decided under the lien law of Maryland. Appellants mistakenly maintain in their brief that Humphrey involved an express understanding between the supplier and the builder. The opinion of Judge Soper, writing for the Court, makes it abundantly clear that the only formal contract was between the plumbing and heating subcontractor (Alexander Green) and the owner and builder (James Humphrey). Prior to the execution of that contract “Green arranged” with the supplier (Harrison Bros.) to purchase the necessary material to perform his contract with Humphrey and 90% of the supplies required for the job were actually purchased from Harrison, the supplier. The arrangements between the subcontractor and the supplier were thus described by Judge Soper:

“Prices were named by Harrison at the beginning of the operation but there was no written or oral contract between Harrison and Green fixing the prices or binding the parties to a sales agreement for the entire project; and the goods were bought on open account as needed during the ensuing months, and payments on account were made from time to time.”

The Court found that the lien for furnishing of plumbing supplies was enforceable.

We apprehend that the appellants, in their assertions of error on the part of the chancellor, fail to distinguish between a regular course of dealing between a supplier and a contractor, as exemplified in the instant appeal and cases like Humphrey, supra, and situations where separate and distinct contracts were entered into. A graphic illustration of the latter is the case of Clark v. Boarman, 89 Md. 428 (1899) where a dwelling was erected under one contract for the sum of $1400 and, under another agreement, four outhouses were constructed at a cost of $200.50. The Court of Appeals held that these were distinct contracts and that, in such case, the material man was not entitled to a lien under both contracts by simply accounting from the date of the last item of one of them and, in all respects, the requirements of the lien law had to be observed as to each contract.

In another early case, a material man entered into an agreement to supply bricks at the prices of $9.00, $17.50 and $25.00 per thousand for the construction of twenty houses, with no definite quantity being stipulated. Deliveries were made from November to May and once again in August. In May, however, bricks were ordered for paving purposes at a different price, namely, $10.00 per thousand. The Court of Appeals held that the paving bricks were furnished under a separate contract whereas all the others were supplied under one continuous contract and the paving bricks were not allowed as part of the lien claim under the earlier agreement. The Maryland Brick Company of Baltimore City v. Dunkerly, 85 Md. 199 (1899); see also Watts v. Whittington, 48 Md. 353 (1878).

We conclude also that the appellants have misread the cases of Hensel v. Johnson, 94 Md. 729 (1902) and Brunt v. Farinholt Company, 121 Md. 126 (1913), upon which they rely in support of their contention that each order and delivery in the instant case constituted a distinct contract and that the lien is governed by the respective dates of delivery and not from the last item in the account.

Hensel also arose on a bill to enforce mechanics’ liens. As the opinion of Page, J. discloses, the record developed an enormous amount of evidence. In a relatively brief disposition of the case, however, the Court succinctly set forth the facts relating to the lien claims of some ten mechanics and/or suppliers who were involved. Appellants in their brief refer to the tenth claim only. This was the claim by the firm of Myohl & Luken for the lumber supplied in the construction of five houses located in Baltimore County. The original undertaking of the lumber firm was to furnish “not such lumber as might be needed for the construction of the houses but a specific quantity contained on a list, a copy of which is in the record.” (Emphasis added.) These specific quantities were to be supplied at a stated price of $1487.45. Thereafter, the builder purchased more lumber and, in the language of the Court, “not by virtue of the original agreement, but as he needed it.” In our view, the following language of the Court is at variance with the position advanced by appellants in this case: “The lumber furnished in addition to the kinds and quantities included in that list was as much under a separate contract as was the lumber furnished by the firm to Eckstine (the builder) for other work that the latter was then conducting.” (p. 736). In other words, the Court is speaking of two separate contracts rather than the “list” contract and multiple separate contracts for additional lumber ordered as needed. This interpretation of the opinion is supported by the Court’s disposition in Hensel of the very first claim considered by the Court in that case, that of Pearson & Co., 94 Md. at p. 732. An objection to the latter’s claim for hardware supplied to the site was thus expressed in the opinion of the Court (p. 732):

“It is contended that there was no contract verbal or written under which the materials were furnished and that the claim is not effective as to materials delivered more than thirty days before the service of the notice.”

Rejecting this contention, the Court stated in language appropriate to the instant appeal:

“The proof shows that there was an understanding between Eckstine, and Pearson & Co., that the latter should furnish such hardware as would be needed in the construction of the houses, and it also appears that the several items of the account were furnished continuously and at short intervals as the materials were wanted at the building. Under these circumstances it must be presumed that they were furnished in accordance with the understanding originally existing between the parties, and it is therefore from the last item in the account that the notice, and the time within which to take the lien must date. Trustees of the German Luth. Ch., &c., v. Heise & Co., 44 Md. 469.” (Emphasis added.)

With respect to Brunt v. Farinholt, supra, appellants rely upon that portion of the case (a consolidated appeal also involving three lien claims) which related to a decree against the house of Henry Brunt. The bill of particulars contained items furnished from July 2, 1910 to October 26, 1910 amounting to $634.64 and a charge on October 29 for $8.29. Notice of an intention to file a lien was served on December 21, 1910. Mr. Brunt conceded that the supplier was entitled to a lien for items furnished from October 5 to October 26 but contended that items delivered prior thereto were not “furnished under the same contract or understanding between the [supplier] and the contractors” and therefore as to such items the notice was not timely.

The Court of Appeals concluded that the decree should have included only the items delivered in October. The crucial factor in the Court’s decision was that the builder, after the Brunt house was more than half completed, asked for and received from the supplier a bid dated October 1, 1910 for a list of materials which amounted to $252.64. These items were delivered to the Brunt site beginning on October 5. Testimony quoted in the opinion of the Court reveals that all prior deliveries had been made on separate orders without any similar “estimate” or other writing. The Court made a finding that “the materials furnished in October were furnished under a separate and distinct contract from the arrangement under which those delivered prior to October 5 were furnished.” (Emphasis added.) The Court did not find, as appellants have implied, that the pre-October 1st “arrangement” consisted of a number of separate and distinct contracts. Rather, the Court made the following analysis:

“The articles delivered during the month of October were furnished under the contract of October 1st, and if it be conceded that as to those delivered prior to that month the presumption spoken of in paragraph (2) of what we have taken from l±k Md., supra, would arise, they were furnished under a different contract from that under which those in October were furnished. What is said of the claim of Myohl & Luken in Hensel v. Johnson, 94 Md. 729, is very applicable to this claim.” (Emphasis added.)

The Court’s assumption negates the inference drawn by appellants that the pre-October deliveries were necessarily under separate contracts.

In addition, we find appellants’ attempt to distinguish the case of T. Dan Kolker, Inc. v. Shure, 209 Md. 290, 121 A. 2d 223 (1956), unavailing. The case involved an appeal from a decree granting enforcement of part of a material man’s lien pertaining to millwork, and denying enforcement of the remainder pertaining to rough lumber. There, a written contract for the millwork in the amount of $2,587.51 for the construction of a private house in Baltimore County was entered into between the builder, Mr. Miller, and the supplier, Mr. Kolker, on October 30, 1953. At or about that time, the builder and supplier discussed the rough lumber requirements for the job. Miller testified that he agreed to buy the rough lumber from Kolker only if the prices “were right.” Miller felt free to call on other suppliers, and did so, but testified that “Kolker always got first preference” because of the arrangement on the millwork. Both the millwork and the rough lumber were carried as a single account on the invoices and on Kolker’s books. Deliveries of rough lumber spanned a period from January until May, the last delivery being on May 24 — within the then 60-day statutory period required for a notice of intention to file a lien. As disclosed in the opinion of the Court (Collins, J.), the rough lumber deliveries, far fewer in number and much less frequent than in this case, were as follows:

January 5, 6, 24, 28
February 4,15, 17, 24
March 8
May 24

Applying the rules contained in Heise the Court concluded that the chancellor erred in not holding the mechanic’s lien valid as to the rough lumber as well as the millwork: “[A]s all the rough lumber was furnished for the same purpose, the construction of the Shure home, and even though it was delivered at different times, these deliveries were so connected together to show that the parties contemplated that all of the deliveries formed one entire matter for settlement.” It is to be noted that the Court in Kolker applied the standard set out in Heise for a single contract and specifically found inapplicable the following qualification in Heise:

“ ‘But where the materials are furnished for separate and distinct purposes, or at different times, and at considerable intervals, or under distinct contracts or orders, though to be used by the contractor or builder in executing one and the same contract with the owner, no such presumption will arise, and the right to take the lien must date from the time of furnishing the different parcels of material, and not from the last item in the account.’ ”

The Court in Kolker also relied — as did the chancellor in this case — on the case of Humphrey v. Harrison Bros., Inc., 196 F. 2d 630 (4th Cir. 1952), supra, and quoted the following language from the opinion of Judge Soper, 196 F. 2d at p. 635:

“It is not necessary that there be a binding contract between the contractor and furnisher for all the materials if the parties in their dealings with each other treat the project as a single enterprise and the goods are delivered continuously as needed during the building operation.”

Finally, the chancellor correctly rejected appellant’s claim that United, States v. Allied Contractors, Inc., 171 F. Supp. 569 (D.C. Md. 1959) and Noland Co. v. Allied Contractors, Inc., 273 F. 2d 917 (4th Cir. 1959), reversing the case first cited, support their position. The litigation there involved was under the federal Miller Act and we are not bound by nor do we indeed concur in the interpretations in those cases of Heise and Farinholt,

In sum, it is our conclusion that there were sufficient facts before the trier of facts upon which a judgment could be made that there was an understanding between Reisterstown and Winter upon the commencement of construction of these houses from which the builder’s purchases from Reisterstown derived. These facts included, as in Heise, the character of the account, the time and frequency within which the materials were furnished, their quantity, and the purpose for which the materials were used; and therefore it is from the last item in the account that the notice and the time within which to take the lien should date. As the Supreme Court of Utah had occasion to state in Gwilliam Lumber and Coal Co. v. El Monte Springs Corp., et al., 48 P. 2d 463 (1935), an appeal involving priority between a mechanic’s lien and real estate mortgages: “The one outstanding rule is that each case must be decided on its own circumstances and on its own evidence.” In this case, not only was the chancellor not clearly erroneous, Maryland Rule 1086; his finding on these contentions of the appellants, considered above, was amply supported.

Ill

Appellants Culotta complain that the trial court made no finding on the controverted issue of delivery vel non of materials to their lot valued at $14.36 on August 21, 1968; and they contend that the evidence produced by Reisterstown was insufficient to establish a prima facie case of delivery “or to support a finding of delivery by the trial court.” While we note that the learned chancellor stated in his memorandum opinion that the “pertinent dates . . . are not at issue,” he immediately thereafter added: “Mr. Charles Forbes, President of Reisterstown Lumber Co., testified as to the above dates without contradiction from the defendants.” Upon our review of the record, we find this statement of the chancellor amply supported. First, during the direct examination of Mr. Forbes, two printed “Delivery Receipt” forms, one for the delivery of four pieces of sheet rock and the other for two window screens, each bearing the signature “W. Winter,” and each inscribed “delivered August 21, 1968 by Richard Forbes” (identified as the son of the president), together with the “truck log” of Richard Forbes, were received in evidence as records kept in the regular course of business, Code, Art. 35, § 59. These papers constituted prima facie evidence of the facts stated.

Mr. Culotta did not deny the August 21 delivery date. On direct examination he testified that the invoices above described “don’t ring any bell to me. I am not home during the day, like most of us are not, so I can’t say positively one way or the other, but they don’t ring any bells to me as to any materials that we needed to complete our house at that time, because that is August 21st, well over a month after we took occupancy of the house.” Thereafter, the witness admitted that a basement bathroom was constructed after the family moved in and that sheet rock was used to enclose the shower, although he believed that the work was performed within days rather than weeks of the family’s occupancy of the house.

The questions of credibility presented here were, of course, for the determination of the chancellor. Felder v. State, 6 Md. App. 212, 250 A. 2d 666 (1969); Ritter v. Danbury, 15 Md. App. 309, 290 A. 2d 173 (1972). The answer to appellants’ contentions that Reisterstown should be required to produce “direct testimony” of the date and fact of delivery, especially because “a minor delivery in the amount of $14.16 opens up a claim of $7,563.59, under circumstances which make the date and fact of delivery suspect,” is found in the opinion of Judge Delaplaine writing for the Court of Appeals in District Heights Apartments v. Noland, 202 Md. 43 (1953), supra:

“It is an accepted rule that where a plaintiff has established a prima facie case, and the defendant seeks to support his defense by facts which are or ought to be within his knowledge, the burden shifts to him. So, while the burden is on the material man in a mechanic's lien case to establish the fact that he delivered the materials for which he claims the lien, it will be presumed that all materials which he shipped to the defendant were duly delivered, in the absence of some direct evidence to the contrary. In the case before us no evidence was produced to contradict the prima facie evidence that the materials as ordered and charged had been delivered to the defendants.”

And the following statement of the law thereafter expressed in Noland (p. 52-53) is strikingly appropriate here:

“It is also firmly established that where the time allowed for filing a mechanic’s lien has begun to run, the claimant cannot thereafter extend the time within which the lien may be filed by doing or funishing small additional items and thereby fixing a date from which the period must begin to run anew, especially where the doing or furnishing of such items is merely colorable and the real intention is to save or restore a right which is already imperiled or lost, or where the additional work is done or additional materials are furnished without the knowledge, request or consent of the owner. But where a claimant, after a contract is substantially completed, does additional work or furnishes additional material which is necessary for the proper performance of his contract, and which is done in good faith at the request of the owner or for the purpose of fully completing the contract, and not merely as a gratuity or act of friendly accommodation, the period for filing the lien ivill run from, the doing of such work or the furnishing of such materials, irrespective of the value thereof. ’’(Emphasis added.)

Here the invoices disclosed the job site, the date of delivery and the signature of the builder. The truck log of the driver disclosed the delivery of the order to Lot 5, the Culotta lot. There was at least one other delivery to the Culotta home in August — on August 9 — which they did not challenge. When called to testify, Mr. Culotta could not contradict the delivery of the materials. We are unable to find on this record that the chancellor was clearly erroneous in rejecting the contentions of the appellants Culotta that the August 21, 1967 delivery of materials had not been made.

Judgments affirmed; appellants to pay the costs.

      . They are husband and wife in each instance. Suits to enforce the liens against Lots 4 and 5 were filed on January 22, 1969 and against Lot 7 on April 17, 1969. The cases were not consolidated and tried until November 5, 1973.

      . Repealed by Acts 1972, Ch. 349, § 1, effective January 1,1973. For new section containing provisions similar to those of §§ 11 and 12 of Art. 63, see Real Property Article, § 9-103.

      . Mr. Winter at his deposition was directed by his counsel not to answer a question as to whether he had any knowledge of “any mechanic’s lien releases being furnished on any of those properties.”

      . For a discursive analysis of the Statute, see “The Maryland Mechanics’ Lien Law — Its Scope and Effect,” 28 Maryland Law Review 225 (1968). “In 1791 Maryland enacted the first mechanics’ lien law in the United States,” the authors state in the opening sentence. The Court of Appeals in T. Dan Kolker, Inc. v. Shure, 209 Md. 290, 121 A. 2d 223, infra observed that “the mechanic’s lien law was passed to protect material men. This Court has laid down the rule that it is to be construed in the most liberal and comprehensive manner in favor of mechanics and material men.” (p. 296) (citations omitted.)

      . Appellants Culotta, as previously stated, also contend that no materials were delivered within the ninety day period.

      . As Judge Soper pointed out, the “more important question” in the case was whether the lien was invalid because the materials were not installed in the houses against which the lien was asserted but in other houses in the project. The Court held that where materials are furnished to a number of houses in a single project, it is not essential to the validity of the lien claims that the supplier show in what houses the specific materials were used.

      . The reference here is to a prior paragraph in the Court’s opinion quoting the standard set down in Heise, supra, as follows:
      “(2) In the absence of evidence of such express contract, the character of the account, the time within which * * * the materials were furnished, and the object of the ** * * materials may afford proper grounds for the presumption that the * * * materials were furnished with reference to an understanding from the commencement that such * * * materials should be * * * furnished if required by the builder.”

      . The Court’s holding did not require it to decide whether the lumber and millwork together constituted one contract since, as it stated: “The requirements of the statute are satisfied whether deliveries are treated as made under a separate contract for the rough lumber, or under a single contract for the millwork and rough lumber as the parties apparently regarded it.”

      . 40 U. S. Code, § 270 a providing that one who has furnished labor or material in a contract for the construction of a public building and has not been paid in full within ninety days after the date on which the last work was done or materials furnished, shall have the right to sue on the payment bond for the unpaid balance and providing that any person having direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor shall have the right of action on the bond after giving written notice to the contractor within ninety days from the date of the last performance or last delivery. In the cases cited, the principles of the Heise case were applied at the trial level by District Judge Watkins but were found not controlling by the Circuit Court of Appeals.

      . In the District Court opinion we find inaccurate the statement that the Court of Appeals held in the Farinholt case that “unless there is a continuing contract to furnish materials on a project, notice must be given within (then 60 but now) 90 days of furnishing material under each separate order.” In addition, the opinion of the Court of Appeals in Noland expresses incorrectly (p. 919-920) the ratio decidendi of Heise when it states that in the construction of the mechanics’ lien law of Maryland “emphasis was laid upon the term contract between the builder and the supplier of materials and the notice was held to run from the completion of each distinct contract or order.” As we have previously noted herein, the holding in Heise was quite to the contrary.

      . The same records for other deliveries had previously been received in evidence without objection, as the chancellor observed in overruling the objection of the appellants to the August 21 delivery receipts.

      . Mr. Culotta stated that he was present in court as an “observer” and was apparently unaware that he would be called as a witness.