Frana v. Frana

Gilbert, J., delivered the opinion of the Court. In early 1969, as a result of some marital discord, Hilary E. Frana (Appellee) consulted Lawyers Referral Service of Montgomery County and was referred by them to a member of the Montgomery County Bar. The Appellee had discussions with the attorney relative to a separation from her husband. At her request her husband, Donald F. Frana (Appellant) accompanied her to the attorney’s office on two occasions.

Appellant testified that the first meeting was a discussion concerning the existing state of affairs between him and his wife and the assorted property. The second occasion, April 28, 1969, was for the signing of the “settlement agreement”. At that time the parties signed a paper writing entitled “Property Settlement Agreement” which was executed and acknowledged before a Notary Public. This “Property Settlement Agreement” is in usual form except that no clauses are contained therein (a) providing for the nullification of the Agreement if the parties should cohabit together, or (b) containing a proviso concerning the Agreement’s acceptance or rejection by a court.

The Agreement does, however, contain the following clause which is significant here: “8. The wife covenants that she will not claim maintenance, alimony or support of any kind ²⁷⁵ for herself, temporarily or permanently, at any time from the husband.” The Agreement also provided that the custody of the two minor children was granted to the wife who “will move to England, and the husband’s visitation privileges shall have to be exercised in England, or wherever else the wife may reside”. It was agreed that “the husband will pay all the expenses of moving the wife and the aforesaid children to England.” The husband further agreed to pay for the support of the children at the rate of $300.00 per month until the last surviving child attained the age of twenty-one, married or was emancipated and unusual medical expenses not covered by medical insurance. There was a division of personal property and the right to the husband to reside in the residence of the parties which was owned as tenants by the entireties upon conditions.

The husband agreed to make the monthly mortgage payments including expenses, and to maintain the property. Either party could demand at any time that the residence be sold and the net proceeds divided equally between the parties. Both parties agreed not to molest the other or to contract bills in the other’s names or to compel or endeavor to compel the other to cohabit or dwell with him or her. Each declared that he or she had a right to counsel of his or her own choosing and renounced the right to share in each other’s estates or to administer thereon.

The husband paid the attorney’s fee. The amount of child support was agreed upon by the parties in order to provide tax-free income. The record reveals the following testimony: “MR. D’ERASMO — Did you discuss the tax aspects of this agreement with Mr. Lynott?” “MRS.

FRANA — Yes, I did.” “MR. D’ERASMO — What did he tell you?” “MRS. FRANA — He suggested to me that if ²⁷⁶ the money was allocated to me were all put into child support that I might not be taxed on this amount.” Immediately after the execution of the Agreement of April 28, 1969 the parties returned to the marital domicile and continued to cohabit together as man and wife until May 12, 1969 when the wife sailed for England accompanied by their two children. On the wedding anniversary of the parties, August 20, 1969, the wife initiated a phone call from England to the husband in which she testified, “I told him that I would like to come back and would he be agreeable ?” He said “that he would like to think about it, but that probably we should return.” On September 20, 1969, the Appellant had written to the Appellee advising her that “there is plenty of lolly in your checking account”; that he had “reassembled Erica’s doll house and it should be ready for her when she gets back”, and that “I have washed some windows as I know you won’t do them.” Thereafter, on October 4, 1969, the Appellee returned with the two children to this country and the Appellant met them at Dulles Airport.

The parties went immediately to their former place of abode in Rockville, Maryland. Both parties testified that the Appellant did not stay with the Appellee the night of October 4 at their house, and, in fact, he did not return to the house until October 10. Appellee further testified that on October 10 the Appellant returned to the house and they occupied the same bed until October 18, 1969 when she moved downstairs. Mrs. Frana recanted later and testified that she believed she didn’t move downstairs until the 22nd of October, and Appellant stated they slept in the same bed for five days from October 9, 1969.

Both parties denied that they had sexual intercourse notwithstanding the fact that they shared the same bed, and continued to ²⁷⁷ occupy the same house until the Appellant removed himself from the same on December 23, 1969. From the time of Appellee’s return from England she was keeping a calendar of “things that were happening.” Sometime around October 4, 1969 the Appellee received telephone information relative to her husband and she then obtained the services of an investigator. As a result of such services suit was brought in the Circuit Court for Montgomery County on February 11, 1970, charging the Appellant with the marital offense of adultery and praying: (1) divorce a vinculo matrimonii, (2) custody of the minor children, (3) support and maintenance of Appellee and the minor children, (4) counsel fees, suit costs and private investigator fee, and (5) for such other and further relief as the merits of her case may require. The Appellant answered the Bill in which he neither admitted nor denied the averment of adultery on advice of counsel, pursuant to Maryland Rule 372 b. 1., but denying that he was in anywise responsible for the support and maintenance of the wife as the result of the “terms and provisions of a voluntary separation and property settlement agreement entered into between the plaintiff and the defendant on the 28th day of April, 1969.” The matter was referred to a Master for the taking of testimony.

The evidence pertaining to the adultery was uncontraverted. The Master concluded that the Appellee had proven adultery and that the parties had reconciled so as to nullify the Agreement of April 28, 1969. The Master recommended that a decree be signed awarding $245.00 a month to the wife as alimony, and that the sum of $180.00 per month be paid as support and maintenance for the two minor children. Both parties promptly filed exceptions.

The Appellant excepted on the ground that the wife had waived her right to alimony. The Appellee excepted because she had requested as part of her relief that counsel fees, suit costs and the private investigator fee be paid by the Appellant, and that no reference was made ²⁷⁸ to the payment of them in the Master’s report. The matter came on for hearing before a Judge of the Circuit Court for Montgomery County and the Appellant’s exceptions were overruled; the Appellee’s exceptions were sustained, and the matter remanded to the Master to recommend counsel fees and costs. On September 16, 1970 the Master filed a supplemental report in which he recommended that the Appellant pay a counsel fee of $300.00 to Appellee’s attorney, court costs including costs before the Master of $105.00, and detective bill of $180.00.

On September 25, 1970 the court signed the decree of divorce, embodying therein all of the recommendations of the Master, including the supplemental report. The Appellant vigorously objects in this court to the award of alimony on the basis that the wife had expressly covenanted that she would not claim maintenance, alimony or support of any kind, temporarily or permanently, at any time from her husband. He argues that the trial court’s award of alimony is erroneous and that it was incorrect in its application of the law to the' facts. We agree.

Section 28 of Article 16 of the Annotated Code of Maryland provides: “Any deed or agreement made between husband and wife respecting support, maintenance, property rights, or personal rights, or any settlement made in lieu of support, maintenance, property rights or personal rights shall be valid, binding and enforceable to every intent and purpose, and such deed or agreement shall not be a bar to an action for divorce, either a vinculo matrimonii or a mensa et thoro, as the case may be, whether the cause for divorce existed at the time or arose prior or subsequent to the time of the execution of said deed or agreement, or whether at the time of making ²⁷⁹ such deed or agreement the parties were living together or apart; provided, that whenever any such deed or agreement shall make provision for or in any manner affect the care, custody, education or maintenance of any infant child or children of the parties the court shall have the right to modify such deed or agreement in respect to such infants as to the court may seem proper, looking always to the best interests of such infants.” The Court of Appeals has long held that property settlement agreements as between husband and wife are valid. Cf. Grossman v. Grossman, 234 Md. 139 , 198 A. 2d 260 (1964). In this case the wife specifically waived alimony by the terms of Paragraph 8 of the “Property Settlement Agreement”, supra.

There was no testimony of any of the parties as to mistake, collusion or fraud, and in the absence of the same a court of equity had no right to modify the contract. See Rice v. Rice, 246 Md. 212 , 227 A. 2d 742 (1967), Grossman v. Grossman. To hold that the parties’ cohabitation immediately following the execution of the agreement of April 28, 1969 terminated the agreement does injury to the intention of the parties; nor are we persuaded that the wife’s return from England on October 4, 1969 constituted such a reconciliation as would abrogate the agreement as a matter of law. In fact, both she and Mr. Frana testified that no sexual relationship