Noffsinger v. Noffsinger

BLOOM, Judge. By a decree dated 3 February 1992, the Circuit Court for Montgomery County granted Dr. Theodore J. Noffsinger Jr. ²⁷⁰ an absolute divorce and his wife, Gloria Noffsinger, a monetary award of $82,198 and counsel fees of $8,000. Mrs. Noffsinger appeals from the judgment of divorce claiming (1) that the decree was based upon stale testimony, (2) that a certain limited partnership investment and a boat are marital property, and (3) that the marital property interest in the marital home has a value far in excess of that determined by the trial court. Dr. Noffsinger cross-appeals, asserting that a separation agreement executed by the parties was not abrogated by their subsequent reconciliation and that the judge who adopted the master’s findings regarding the agreement failed to exercise independent judgment.

We shall first consider the issue raised by Dr. Noffsinger’s cross-appeal, then address each of Mrs. Noffsinger’s issues in turn. FACTUAL BACKGROUND The parties were married 12 August 1977. Each party had children as a result of prior marriages. Dr. Noffsinger adopted Mrs. Noffsinger’s two children, William and Kimberle.

The couple’s marital discord came to a head in June of 1986 when Mrs. Noffsinger left the marital home, complaining that her husband drank excessively. She took up residence with a girl friend in Annapolis until November 1986 when she returned to her husband. In February of 1987, Mrs. Noffsinger again left her husband. During that separation, the parties negotiated and signed a separation agreement dated 11 February 1987.

The agreement required that Dr. Noffsinger continue to pay for the college education of Kimberle, his adopted daughter. As part of the agreement, each party waived the right to claim any monetary award as an adjustment of his or her marital property rights, waived any claim to a share in the other’s estate, and waived the right to serve as a personal representative of the other’s estate. The parties also agreed to a division of personal property and of state and federal income tax refunds, and Dr. Noffsinger agreed ²⁷¹ to pay his wife $1,290 a month for a twelve month period as alimony. The parties began to see each other again in June of 1987 and resumed living together in the marital home in September of the same year.

When the couple reconciled, Dr. Noffsinger ceased paying spousal support but continued to pay Kim’s college expenses. Mrs. Noffsinger left her husband for a third and final time in October of 1988 at which time she filed a complaint for limited divorce, alimony, monetary award, and other relief, alleging that Dr. Noffsinger had constructively deserted her. In his answer, Dr. Noffsinger asserted the validity of the separation agreement. The issue as to the validity of the separation agreement was severed and referred to a master for hearing and recommendations.

After a hearing on 22 June 1989, Master S. Michael Pincus found that the parties intended that the separation agreement be abrogated by virtue of their subsequent reconciliation. Dr. Noffsinger filed exceptions to the master’s report and recommendations. Judge Beard denied the exceptions, and the matter was referred to another master for hearing, report, and recommendations on the remaining issues. That hearing was conducted on the 30th and 31st of July 1990.

At its conclusion, Master William P. Turner, interpreting Judge Beard’s ruling to mean that the separation agreement remained effective for the executed portions of the agreement but not those that were executory at the date of reconciliation, recommended that Mrs. Noffsinger receive a monetary award of $44,000 and $6,000 in counsel fees. Because Mrs. Noffsinger failed to prove constructive desertion, Master Turner recommended that she be denied alimony. Both parties filed exceptions to Master Turner’s report and recommendations. Judge McGuckian presided over the hearing on the exceptions and entered an order affirming the master’s proposed recommendations except as to the monetary award, which he increased to $82,198 (approxi ²⁷² mately 40% of the value of what Master Turner found to be the marital property in Dr. Noffsinger’s name alone) and counsel fees, which he increased to $8,000.

Both parties appealed. THE EFFECT OF RECONCILIATION ON A SEPARATION AGREEMENT Dr. Noff singer argues that, because the separation agreement apportioned repayment of debts, allocated tax refunds, released the parties from future obligations, and addressed additional matters such as custody of the minor child and the payment of college expenses, the resumption of cohabitation did not abrogate its provisions regarding support and property settlement. We disagree. Maryland case law unequivocally holds that a separation agreement that is more than just a contract of separation and support is not abrogated by the mere resumption of cohabitation.

Grossman v. Grossman, 234 Md. 139 , 198 A.2d 260 (1964). See also Frana v. Frana, 12 Md.App. 273 , 278 A.2d 94 (1971). In Frana this Court articulated the principle: [A] contract of separation is annulled and avoided, not solely, or necessarily as a matter of law, by a subsequent reconciliation, cohabitation or resumption of the marital relationship, but rather by the intentional renunciation of the agreement which the reconciliation and resumption of marital relations sometimes evidences. Id. at 284 , 278 A.2d 94 quoting 30 C.J. § 847, p. 1065.

Dr. Noff singer points to certain language in the report of Master Pincus to support his argument that the master incorrectly viewed the agreement as a mere separation agreement and therefore committed error in finding that the parties’ cohabitation had abrogated the agreement. He further argues that Judge Beard incorrectly adopted the master’s recommendations without independent review. Our analysis of Judge Beard’s order discloses no error. Master Pincus, on the basis of his findings as to the parties’ ²⁷³ intentions, recommended that the separation agreement be declared abrogated by their subsequent reconciliation.

On receipt of this recommendation, Judge Beard could have ordered a de novo fact-finding or he could have made a ruling based exclusively on the report of the master. Wenger v. Wenger, 42 Md.App. 596 , 402 A.2d 94 (1979). When relying upon the report of the master, the chancellor should “defer to the fact-finding of the master where that fact-finding is supported by credible evidence and is not, therefore, clearly erroneous. The chancellor, however, ... always reserves unto himself the prerogative of what to make of those facts — the ultimate disposition of the case.” Id. at 602 , 402 A.2d 94 .

The Court of Appeals refined that principle in Domingues v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991), by pronouncing that the ultimate conclusions of the master are not merely to be tested by the clearly erroneous standard. See also Kirchner v. Caughey, 326 Md. 567 , 606 A.2d 257 (1992). Instead, the chancellor must make an independent review of the record and of the facts properly found by the master. Id. [323 Md.] at 491, 593 A.2d 1133 .

If the independent exercise of judgment by the chancellor would produce results different from the conclusions and recommendations of the master, despite the fact that these recommendations were well supported by the evidence, then these recommendations must give way to the independent judgment of the chancellor. Domingues, at 491-92, 593 A.2d 1133 . Absent a clear abuse of discretion, a decision by the chancellor that is both grounded in the law and based upon factual findings that are not clearly erroneous will not be disturbed. Ross v. Hoffman, 280 Md. 172, 186 , 372 A.2d 582 (1977).

In the instant case, Master Pincus found that the parties were reconciled for a second time somewhere between May of 1988 and September of 1988, at which time they resumed living together. He also found that Dr. Noffsinger stopped paying alimony once the parties were reconciled, in part because “it was the intent of the parties when they signed ²⁷⁴ the Agreement to live separate and apart and obviously that intention changed.” Based upon the evidence before him, the master also found that Dr. Noffsinger never discussed the agreement with Mrs. Noffsinger between May of 1987 and October of 1988; that Dr. Noffsinger announced to friends and family that a reconciliation had occurred; that upon reconciliation Dr. Noffsinger commenced payment of his wife’s charge accounts and condominium mortgage; and that “both parties by their reconciliation in 1987, intended to fully abrogate the Voluntary Separation Agreement of February 11, 1987.” In making that determination, Master Pincus found that the separation agreement had been abrogated, not as a matter of law by virtue of the reconciliation, but as a matter of fact because the parties so intended. Frana, 12 Md.App. at 273 , 278 A.2d 94 . Dr. Noffsinger excepted to the master’s report and recommendation.

Dr. Noffsinger’s exceptions to Master Pincus’s report and recommendation did not allege any specific errors in fact-finding by the master. 1 He asserted, as a matter of law, that the parties did not, by their reconciliation, abrogate their separation agreement. Relying on Wenger v. Wenger, supra, he also contended that the master’s determination that the parties intended to abrogate the agreement was not a “first level” finding of fact but a “second level” or conclusory finding. He was wrong. As Judge McAuliffe, writing for the Court of Appeals in Domingues , explained, the distinction “between ‘first-level facts,’ which should be accepted unless clearly erroneous, and ‘more abstract, second-level, conclusory or dispositional facts,’ which are not entitled to such deference” as drawn in Wenger was too simplistic.

The example given by Judge McAuliffe, 323 Md. at 494 , 593 A.2d 1133 , indicates that the ²⁷⁵ intent with which one acts, although found by use of inferences drawn from other facts, is a fact to be found by the master. Or, as Lord Bowen expressed it in Edgington v. Fitzmaurice, 29 Ch.D. 459, 483 (1885), “The state of a man’s mind is as much a matter of fact as the state of his digestion.” At the hearing on the exceptions, Judge Beard, after reviewing the record, ruled that Master Pincus was “not erroneous in his findings.” Based upon the master’s factual finding that the parties intended to abrogate the agreement when they resumed cohabitation, Judge Beard concluded that the voluntary separation agreement had been abrogated, and so declared in an order dated 19 December 1989. Dr. Noffsinger contends that Judge Beard failed to exercise his independent judgment and otherwise failed to adhere “to the required standard of review [as set forth in Domingues \ in resolving the matter on exceptions.” We disagree. Once the court adopted the master’s findings of fact, there was no discretion to be exercised.

The sole issue before the court was the continued validity, vel non, of the separation agreement, and the factual finding that the parties intended to abrogate their agreement compels the legal conclusion that the agreement was abrogated. Once that fact-finding was determined to be supported by evidence and was therefore not erroneous, there was no room for a discretionary decision. Domingues is inapplicable. The decision that the separation agreement was abrogated is grounded in law, see Wenger, 42 Md.App. 596 , 402 A.2d 94 , and Frana, 12 Md.App. 273 , 278 A.2d 94 , and based upon findings of fact that are not clearly erroneous; therefore, Judge Beard’s order to that effect will not be disturbed.

Md.Rule 8-131(c). See Eckstein v. Eckstein, 38 Md.App. 506, 516 , 379 A.2d 757 (1978) (appellate courts will only overrule clearly erroneous findings of fact by the trial court). ²⁷⁶ We also disagree with Dr. Noffsinger’s additional argument that Judge McGuckian subsequently erred in adopting the earlier finding of Master Pincus “that both parties by their reconciliation in 1987, intended to fully abrogate the Voluntary Separation Agreement of February 11,1987” and by failing to exercise his independent judgment as to that determination. When the question arose as to whether abrogation of the agreement applied only to executory provisions at the time of the reconciliation or applied to all provisions of the agreement, executory and nonexecutory alike, the parties urged contrary interpretations. At the hearing on the merits before him, Master Turner noted that “courts have held that the abrogation of an agreement does not effect (sic) the executory portions of it, but only as to future activities.” Master Turner recommended that Mrs. Noffsinger receive a monetary award of $44,000.00, representing 20% of the appreciated value of the property acquired after the separation agreement was signed.

Exceptions to Master Turner’s report and recommendations were heard by Judge McGuckian, who noted: Master Turner took the position that the voluntary separation agreement of February 11, 1987 (hereafter referred to as “the agreement”) was abrogated by the reconciliation of the parties only as to executory provisions (those yet to be performed)____ In any event, the court finds that it is not necessary to resolve this question because earlier, Master Pincus found “that both parties by their reconciliation in 1987, intended to fully abrogate the Voluntary Separation Agreement of February 11, 1987.” This finding was affirmed by Judge Beard who on December 19, 1989 denied the Defendant’s Exceptions to the Report of the Domestic Relations Master. The court believes that Master Pincus’ conclusion was as to executed as well as non-executed provisions of the agreement. While the court may not have concluded as did Master Pincus and Judge Beard, nevertheless the court feels constrained to support those earlier judgments ²⁷⁷ and finds the agreement has no role to play in the issues now before the court. We agree with Judge McGuckian on that point.

Dr. Noffsinger asserts that upon reconciliation the contract of separation was abrogated only as to executory provisions, citing Mach v. Baranowski, 152 Md. 53, 58 , 136 A. 34 (1927), for support. He further argues that the reconciliation was not intended to nullify the waiver by each party of “any and all rights that either may have, now or in the future,” as set forth in the separation agreement. We disagree. Separation agreements and property settlement agreements between spouses are like other contracts where, absent ambiguous language, terms are given their plain meaning.

Feick v. Thrutchley, 322 Md. 111, 114 , 586 A.2d 3 (1991); Mendelson v. Mendelson, 75 Md.App. 486, 501, 541 , 541 A.2d 1331 (1988). The fifth paragraph of the separation agreement provides in pertinent part: Each party waives any and all rights that either may have, now or in the future, pursuant to § 8-201 through § 8-213, Title Family Law, Annotated Code of Maryland, 1984 Volume as amended, or as it may be amended in the future, entitled “Property Disposition in Annulment and Divorce”, it being the intent of the parties that this Agreement is a total and complete release to each from the other of all matters and charges whatsoever, and except as herein provided, each party, after the execution of this Agreement, shall require nothing whatever from the other as though the marriage relationship had never existed between them. The evidence supports the factual finding that the parties intended their reconciliation to abrogate the separation agreement in its entirety. Of particular significance were the resumption of cohabitation, the assumption of the wife’s charge accounts and mortgage payments by the husband, and the cessation of alimony payments by the husband.

It is clear that the parties ceased to regard the marital rela ²⁷⁸ tionship as ended and ceased to conduct themselves “as though the marriage relationship had never existed between them.” On its face, the agreement deals entirely with the separation of the spouses, with the contemplation that the separation was intended to be permanent and result in a divorce. It provided that the parties, having separated, would remain separate and apart, as if unmarried, each free of any interference by the other. It provided for custody of and support for the parties’ minor child and the college education of the adult daughter. It provided that each party would be solely responsible for his or her debts, and for the filing of joint tax returns.

There are only two paragraphs, the fourth and ninth, that deal with property rights of any kind. The fourth paragraph states that the parties have divided their household furnishings and personal property. The ninth paragraph provides that each party was free to dispose of his or her own property (which would be true even if there was no agreement) and that each party waived the right to inherit from and to administer the estate of the other. The latter provisions are designed to become effective if one spouse dies before there is an absolute divorce.

With the exception of the acknowledgment of division of personal effects, which might possibly have been intended to have a lasting effect independent of the separation and divorce but which is not at issue in this case, all of the above provisions are clearly and unequivocably related entirely to the agreement to separate. The provision relied upon by Dr. Noffsinger contained in the fifth paragraph of the agreement is a waiver of marital property rights conferred by §§ 8-201 through 8-213 of the Family Law Article of the Maryland Code (Property Disposition in Annulment and Divorce). As we have pointed out, that statute, and the equitable rights and benefits it confers, does not create or establish property rights, merely equities that do not arise or even have any meaning except in the context of a divorce or annulment. See Kline v. Kline, 85 Md.App. 28 , 581 A.2d 1300 (1990). ²⁷⁹ The provision of the fifth paragraph of the agreement, waiving marital property rights, i.e., equitable rights to have the court consider granting a monetary award, are necessarily totally dependent upon the agreement to separate with the expectation that the separation would result in a divorce.

It is perfectly logical to conclude from the fact of reconciliation an intent to abrogate all provisions of the agreement dealing with the ongoing rights, duties, and obligations of the parties during the separation and upon divorce, including the statutory “marital property rights” as well as alimony, child custody, visitation, and support. Master Pincus’s factual finding of mutual intent to abrogate the entire separation agreement has support in the evidence and is not clearly erroneous. Judge Beard’s order to that effect and Judge McGuckian’s recognition of the validity of that order were entirely correct. STALE EVIDENCE Mrs. Noffsinger contends that the trial court erred in granting a divorce based on stale testimony, in violation of Md.Rule S75(c), which provides: In an action for divorce, annulment, or alimony in which the testimony has been concluded for more than 90 days without the entry of a final decree, a final decree may not be entered until supported by additional testimony justifying the conclusion that there has been no substantial change since the prior testimony was concluded.

The rule, of course, is intended to insure that nothing in the nature of reconciliation, resumption of cohabitation, or other event that would render the granting of a divorce inappropriate has occurred since testimony was taken. The court would normally expect that counsel, if aware of the occurrence, would inform the court of it. In the absence of collusion, one of the parties would be likely to inform the court. The principal purpose of the rule, therefore, would seem to be to guard against collusion, which was not likely under the circumstances of this case.

It is reasonable to ²⁸⁰ conclude, without additional evidence, that nothing affecting the grounds for divorce occurred between the time testimony was taken and the judgment was entered. There is no disputing that Rule S75(c) was violated in this case. The testimony was taken before Master Turner on the last two days in July, 1990. It was over a year later that exceptions to Master Turner’s report were heard by the court, and another five and one-half months elapsed before judgment was entered. 2 The error, however, was waived.

Neither party raised the issue of stale evidence or brought it to the attention of the court; neither party requested that additional evidence be taken; neither party moved to vacate, alter, or amend the judgment pursuant to Md.Rule 2-534, in order to comply with Rule S75(c). Therefore, pursuant to Md.Rule 8-131(a), we decline to consider this assertion of error.