Herget v. Herget

ADKINS, Judge, dissenting. The majority holds that Mary Elizabeth Herget’s claim for a monetary award from her former husband, Charles E. Herget, Jr., is barred by an antenuptial agreement. In the course of reaching that result it recognizes that “ ‘a court, in construing an agreement, must first determine from the language of the agreement itself, what a reasonable person in the position of the parties would have meant at the time it was effectuated.’ ” Maj. op. at 470 (quoting Aetna Cas. & Sur. v. Ins. Comm’r, 293 Md. 409, 420 , 445 A.2d 14, 19 (1982)).

The majority concludes “that the intent of the parties manifested by their antenuptial agreement was to prevent the very type of claim that is now being made.” Maj. op. at 477. I respectfully dissent because I cannot agree that an antenuptial agreement that makes reference only to property or interests therein manifests an intent to abandon a claim for a remedy that is neither property nor an interest in property; a remedy that was, moreover, utterly unknown to Maryland law when the antenuptial agreement was executed. ⁴⁷⁸ The Hergets executed the agreement on 27 September 1973. The agreement stated their intent to mutually “waive, relinquish and bar ... all ... rights and interests ... with respect to any property, real or personal, now owned or hereafter acquired by the other party.” The future Ms. Herget also released and surrendered any and all claims she may have, now, or at the time of any termination of the proposed marriage between the parties, ... in any estate or property of [Mr. Herget], now owned or hereafter acquired by him, including all rights to support, dower, thirds and halves, and all other rights and interests of every kind therein that shall arise out of the relation of the parties as husband and wife____ There was a reciprocal undertaking on the part of Mr. Herget. Each party also waived and released “unto the other party ... all of her and his respective rights, interests and claims in and to said property of the other____” The plain language of the agreement dealt with property and interests in property; those words are repeated numerous times.

There is also a release or surrender of “rights to support.” But the agreement does not address the possibility of a then non-existent equitable monetary adjustment between the parties, which is something quite different from conventional “support” or conventional alimony. Nor does it purport to waive any possible remedy one spouse-to-be might have against the other. Almost two-and-a-half years after the antenuptial agreement was signed, the Governor’s Commission on Domestic Relations Laws was created. Some two years after that, in January, 1978, the Commission submitted its report, in which it recommended the creation of the concept of marital property and the remedy of a monetary award as a means of curing “the perceived existing inequity in present Maryland law governing the disposition of real and personal property upon divorce or annulment____” Report of the Governor’s Commission on Domestic Relations Laws, at 2 (1978).

That recommendation was embodied in Chapter 794, Laws of 1978. It is now set forth in §§ 8-201 et seq. of the ⁴⁷⁹ Family Law Article, Maryland Code (1984,1989 Cum.Supp.). The purpose of the monetary award is to permit a court to make an equitable monetary adjustment after identifying and valuing “marital property” and considering many factors, including both monetary and non-monetary contributions to the marriage, and the economic circumstances of each party. Queen v. Queen, 308 Md. 574, 577 , 521 A.2d 320, 322 (1987); Unkle v. Unkle, 305 Md. 587, 595 , 505 A.2d 849, 853 (1986), and cases there cited.

Marital property is not property in the conventional sense. Falise v. Falise, 63 Md.App. 574, 580 , 493 A.2d 385, 388 (1985). It is a device created by the legislature to correct a potential inequity that may arise upon the dissolution of a marriage. The “only function of ‘marital property’ is to form a base for a ‘monetary award.’ ” Id.

What is more to the point, the right to a monetary award ... is not an interest in the estate or property of one’s spouse. Rather, it is a remedy provided to divorcing spouses to seek financial compensation to cure inequity in the distribution of property acquired during the marriage according to how that property is titled. Watson v. Watson, 77 Md.App. 622, 634 , 551 A.2d 505, 511 (1989). See also Zandford v. Wiens, 314 Md. 102, 106 , 549 A.2d 13, 14-15 (1988); Niroo v. Niroo, 313 Md. 226, 230-231 , 545 A.2d 35, 37 (1988).

When the majority decides that the Hergets’ antenuptial agreement bars a monetary award, it rewrites the contract for the parties, despite the majority’s recognition that “ ‘[cjourts have no right to make new contracts for the parties.’ ” Maj. op. at 470 (quoting Joffe v. Niagara Fire Ins. Co., 116 Md. 155, 160 , 81 A. 281, 282 (1911)). It expands their waivers and relinquishments