Kaouris v. Kaouris

BISHOP, Judge. Pursuant to Md. Rule 8-304, this Court certified three questions to the Court of Appeals: 1. Whether an Orphans’ Court has jurisdiction to determine the validity of a marital settlement agreement, the interpretation of which is necessary for the Court to decide whether the surviving spouse has waived her right to be appointed as Personal Representative, to receive a family allowance or an elective share of the estate; 2. Does an Orphans’ Court have jurisdiction to determine whether such a waiver has occurred, where in order to make that determination, the Court would have to determine whether the waiver, included in a marital settlement agreement, is ineffective because of a material breach of the agreement by the decedent; and 3.

Should the Court of Special Appeals entertain a motion questioning the jurisdiction of the Orphans’ Court in cases that have been appealed first to a circuit court and now before the Court of Special Appeals from the judgment of the circuit court? ²²⁵ The Court, in Kaouris v. Kaouris, 324 Md. 687 , 598 A.2d 1193 (1991) answered “yes” to the first two questions and “perhaps” to the third. The response to the third question is not pertinent to the appeal sub judice. The affirmative response to the first two questions required the case to be remanded to this Court in order that we respond to the issues raised in the original appeal: I. Whether the Dead Man’s Statute prohibited appellee’s testimony that, after executing the marital settlement agreement, she and the deceased lived together as husband and wife for 16 months.

II

Whether the marital settlement agreement between appellee and the deceased precludes appellee’s claim for the family allowance regardless of whether the appellee and the deceased lived together for 16 months after executing the agreement. FACTS We adopt the facts as set out in the Court of Appeals opinion at 324 Md. 687, 710-14 , 598 A.2d 1193 . Appellee Cynthia Kaouris married Nikolaos D. Kaouris, the decedent, in 1983. Approximately 16 months before their separation in November, 1988, while both were represented by counsel, they entered into a marital settlement agreement.

That agreement, inter alia, provided that: (1) “The parties have agreed to separate and to live separate and apart without any cohabitation, and they have so lived continuously since the date of this agreement first above written.” 9 ; (2) they would have joint custody of the child born to the marriage; (3) the decedent would pay appellee $100.00 per week child support, $50.00 per week alimony, and provide health insurance coverage for the minor child; and (4) the parties would transfer certain personal and real property between themselves. The agreement also provided: “14. Except as otherwise provided herein, each party hereby waives, releases and relinquishes unto the other all rights or claims of dower, curtesy, descent, inheri ²²⁶ tance, distribution and all other rights or claims growing out of said marriage between them and each shall be forever barred from any and all right in the estate of the other, whether real, personal or mixed and whether now or hereafter acquired, and each will, upon request of the other party, execute good and sufficient release of dower or curtesy to the other spouse, her or his heirs, assigns or personal representatives or will join with the spouse or her or his assigns in executing any deed to any real property now or hereafter acquired or owned by the other spouse, all at the expense of the spouse so requesting. This paragraph includes, but is not limited to, rights and claims under the Property Disposition Act, section 8-201 et seq., Family Law Art., Ann. Code of Maryland, and all amendments thereto.” The decedent died, leaving a will appointing appellant, Vasilios D. Kaouris, personal representative of his estate.

Appellee did not contest his appointment; rather, she filed a claim for a family allowance 10 and an election to take her intestate share. 11 Appellant opposed both claims, raising, by way of defense, the marital settlement agreement and, in particular, appellee’s waiver of rights in the decedent's estate. Relying on § 3-205, 12 he argued that, by executing the marital separation agreement, appellee forfeited her right to take an elective share. Following an evidentiary hearing, the orphans’ court ruled against appellant as to the surviving spouse’s allowance; it did not decide the propriety of appellee’s spousal election. Appellant appealed directly to the Court of Special Appeals, pursuant to Maryland Code (1974, 1989 Repl.

Vol.), § 12-501 of the Courts and Judicial Proceedings Article. 13 Inasmuch as the parties had never been divorced, at issue before the orphans’ court was whether, by virtue of her execution of the marital property agreement, appellee had waived her right to the spousal allowance and/or elective share. It was for that purpose — its bearing on the answer to that question — that appellant offered the ²²⁷ marital property agreement in the orphans’ court. That court determined, presumably after it, construing the agreement, concluded that the provisions of the agreement were interrelated, that the agreement was void because appellee and the decedent had never separated as the agreement contemplated. ²²⁸ I. Maryland Courts and Judicial Proceedings Code Ann. (1989 Repl.VoL): Sec. 9-116. Dead Man’s Statute.

A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against the, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless the testimony of the dead or incompetent has been given already in evidence in the same proceeding concerning the same transaction or statement. Critical to the outcome of this case before the Orphans’ Court and to our response to Issue II, is whether the Orphans’ Court erred in admitting appellee’s testimony contrary to the dictates of the Dead Man’s Statute. Appellant contends that appellee should not have been permitted to testify to any transactions she had with or statements made by, the deceased Nikolaos D. Kaouris. Appellant argues that she did so testify and that this testimony violated the Dead Man’s Statute, supra.

Appellee apparently does not dispute that appellee’s redirect testimony did violate the statute. We agree that it did. Appellee contends, however, that appellant’s cross examination of appellee activated the exception to the Dead Man's Statute that the statute applies unless the witness is “called to testify by the opposite party.” Heil v. Zahn, 187 Md. 603, 605-06 , 51 A.2d 174 (1947). The trial court in Heil struck the answer to a question asked on cross examination that violated the statute.

The Court reversed stating: We think the answer was responsive to the question and was admissible and should not have been stricken out. It would seem that a witness cross-examined by the opposite party is “called to testify by the opposite party”. In any ²²⁹ event when the opposite party asks a question he not only invites but requires an answer and thereby waives any right to object to a responsive answer. Id. at 606 , 51 A.2d 174 .

Appellee further cites Cooper v. Davis, 226 Md. 371 , 174 A.2d 144 (1961) for the proposition that once the forbidden issue is raised on cross-examination, redirect examination of the witness on the matter raised during cross-examination is permissible. In referring to the disputed testimony the Cooper court observed at page 375, 174 A.2d 144 : Almost all of this testimony came in on cross-examination. It is contended that Davis should not have been allowed to testify as to transactions with the deceased Cooper under Code (1957), Art. 35, Sec. 3. It has been held that an adverse party who is cross-examined as to a transaction with a decedent has been “called to testify by the opposite party” and therefore his answers are admissible under the express exception to the prohibitions of the statute.

Heil v. Zahn, 187 Md. 603, 606 [ 51 A.2d 174 ]. The redirect examination was limited by the chancellor to matters which had been explored on cross-examination, and we find no error in the admission of Davis’ answers on redirect. Bauer v. Harman, 161 Md. 131 [ 155 A. 312 ]. Both Heil and Cooper involved the Dead Man’s Statute contained in former Article 35, § 3 of the 1939 Code.

The current statute embodies virtually the same exception. The current statute prohibits the witness from testifying concerning any transaction with or statement made by the dead person “unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.” The former statute provided “unless called to testify by the opposite party, or unless the testimony of such testator ... shall have already been given in evidence — ” The exception has been iterated in many appellate decisions. DeMarco v. DeMarco, 261 Md. 396, 400 , 275 A.2d ²³⁰ 471 (1971); Taylor v. Mercantile-Safe Deposit & Trust Co., 269 Md. 531, 538-39 , 307 A.2d 670 (1973); Stacy v. Burke, 259 Md. 390, 406-07 , 269 A.2d 837 (1970) (cross-examination of witness in regard to documents not admissible under the statute renders them admissible); Cooper v. Davis, supra. In Heil v. Zahn, supra, the following exchange took place on cross examination: Q. You say you bought groceries, did the cleaning and scrubbing about the House?

A. I did. Q. And you were perfectly satisfied with the arrangements and conditions under which you were working for those six years, were you not? A. I was not. Q. Were you compelled to stay there for any reason whatsoever?

A. You heard the note, loyalty, I am loyal. Q. Other than loyalty, that was the reason you stayed, was it? A. No, I was promised more when he was able to pay it. The last answer clearly indicated a promise by the decedent.

The trial court sustained an objection and ordered that the answer be stricken. The Court of Appeals reversed based on the cross-examination exception contained in the statute. The cross-examination of appellee in the case sub judice was similar to the cross-examination in Heil . Appellee was cross-examined in detail about almost every specific part of the agreement except that part that had to do with appellee and appellant living together.

Appellee was asked repeatedly whether the husband complied with each section of the agreement. Each question produced an affirmative reply. It would be grossly unfair to permit appellant to question appellee about the terms of the agreement that would produce responses favorable to appellant and then prohibit appellee from asking questions pertaining to those issues unfavorable to appellant. We hold that the cross-examination in the case sub judice clearly satisfied the ²³¹ exception contained in the statute, as that exception has been applied and explained by Maryland courts.

In addition, appellant raised no objection to any of the redirect examination of appellee which brought into evidence the exact nature of the relationship between appellee and appellant before the actual separation occurred. It is possible that appellant assumed that he had a continuing objection and, since appellee did not raise this as an .issue, we have assumed that it was preserved below. Our review of the record would confirm that the presiding judge of the Orphans’ court indicated to appellant that the judges understood his objection and that he would have a continuing objection, although the words, “continuing objection” were not used by the presiding judge.

II

Appellee contends, as the Orphans’ Court found, that the agreement between the decedent and appellee was a nullity at the time of decedent’s death because appellee and decedent did not separate following the execution of the agreement, but rather continued to live together as husband and wife for approximately 16 months thereafter. We do not agree. In Mach v. Baranowski, 152 Md. 53 , 136 A. 34 (1927), the parties, while living apart, executed an agreement providing, inter alia, that, in consideration of $800 paid to the husband, all the property held jointly, or subject to