Payne v. Payne

BLOOM, Judge. Milton Joseph Payne Jr. appeals from a judgment of the Circuit Court for Carroll County which granted him a divorce a vinculo from appellee, Shirley Louise Payne. Appellant’s complaints are that the judgment of divorce awarded Mrs. Payne certain items of personal property which he claimed he was to receive under the parties’ separation agreement; ordered appellant to pay half of a bill incurred by appellee for repairing the septic system at the former marital abode; increased the amount of child support payable by appellant; and rejected appellant’s claim for damages sustained as a result of Mrs. Payne’s breach of the separation agreement. Appellant contends that the trial court erred in its findings of fact, in its interpretation of the separation agreement, and in its refusal to admit evidence of the damages caused by Mrs. Payne’s breach of the separation agreement.

Mr. Payne also asserts error in the rejection of his claim that he was entitled to reimbursement for payments he made on a tractor that was awarded to Mrs. Payne. We find no reversible error on any issue that was properly preserved for our review and will affirm the judgment. Facts The Paynes were married on February 19, 1972. The marriage produced two children, Michael Scott Payne, born 19 June 1979, and Michelle Evelyn Payne, born 7 July 1981.

In 1984 serious marital difficulties surfaced, and on December 31 of that year the parties entered into a voluntary separation and property settlement agreement, which contained the following provision with respect to their personal property: Each party shall be entitled to the property in their [sic] present physical possession. Each of the parties transfers and assigns to the other all of their [sic] respective ⁴⁷⁶ right, title, and interest in and to the personal property, above recited, free of any and all claims of the other party. The document also stated that “[t]he parties agree to immediately list the real estate [family home] for sale with a mutually agreeable licensed realtor at a fair market price.” It further provided that the “[w]ife shall have the right to occupy the premises until the sale and shall assume full responsibility for all utility and telephone expenses.” On 5 February 1985, pursuant to the separation agreement, the parties signed a listing contract with a realtor to sell the family home. Despite the usual advertising, multiple listing, and two open houses, no offers of purchase were received.

About one month after she and her husband had signed the listing contract, Mrs. Payne decided that, in the interest of their older child’s health, the house should not be sold. Scott was experiencing emotional difficulties, attributed to the separation of his parents and to the sales activities. After consultation with Scott’s behavioral pediatrician, Mrs. Payne pulled up the for sale sign in front of the home. She sought, pendente lite, a use and possession order for the family home, but her request was denied.

Around January or February 1986, according to Mrs. Payne, Scott began to improve emotionally and she then decided tó comply with the separation agreement and cooperate in the selling of the home. The property was sold two days after it was again placed on the market. Additional facts will be referred to as necessary to the discussion of the issues. Issues Appellant has presented this Court with a pentad of issues: 1.

Did the trial court commit clear error when it awarded appellee items of personalty which were subject to an oral agreement of the parties? 2. Did the trial court err in not awarding appellant a refund for the value of payments he made on the ⁴⁷⁷ tractor when it awarded title to the tractor to the appellee pursuant to the Property Settlement Agreement? 3. Did the trial court err by awarding appellee contribution from appellant for repairs made to a utility where the appellee assumed full responsibility, pursuant to a Voluntary Separation and Property Settlement Agreement for all utility expenses and where said repairs were made without consultation with appellant? 4. Did the trial court err by disallowing any testimony regarding whether the marital home would have sold at an earlier date were it not for Mrs. Payne’s interference with the sale following the separation of the parties? 5.

Was the trial court clearly erroneous in granting an award of child support in an amount greater than that provided in the separation agreement of December 31, 1984, and prior order of the circuit court of October 22, 1985? We will respond to each of these questions, but in a somewhat different order than appellant asked them. I Mr. Payne testified at trial that, contemporaneous with their execution of the separation agreement, he and Mrs. Payne agreed that certain personal property, including, inter alia, gardening equipment, lawn furniture and a tractor, would belong to Mr. Payne but would remain stored with Mrs. Payne at the family home. This alleged contemporaneous second agreement contradicted the separation agreement’s provision that “[e]ach party shall be entitled to the property in their present physical possession,” and Mrs. Payne denied that she ever agreed to store any of Mr. Payne’s property at the family home.

The trial judge believed Mrs. Payne; accordingly, he ordered that the disputed property, which Mr. Payne had taken from the home, ⁴⁷⁸ be returned to Mrs. Payne. A few of those items had been sold by Mr. Payne, and the court ordered him to turn over to Mrs. Payne the proceeds of sale, $49.00. We will not reverse the trial court’s findings of fact unless they were clearly erroneous. Maryland Rule 1086; Boyd v. State, 22 Md.App. 539, 549 , 323 A.2d 684 , cert, denied, 272 Md. 738 (1974).

We must affirm a decision based upon such findings of fact when there is conflicting evidence because the trial judge is better able than we to determine “the weight and value of such evidence,” and because it is simply not our function to determine the credibility of witnesses. Carling Brewer Co. v. Belzner, 15 Md.App. 406, 412 , 291 A.2d 175 (1972). We affirm the trial judge’s awards of personal property and sales proceeds to Mrs. Payne because they were based on findings of fact that were supported by evidence the trier of fact found to be credible. II After Mr. and Mrs. Payne separated, the septic system for the family home, then occupied by Mrs. Payne and the parties’ children, broke down and required extensive repairs.

Mrs. Payne testified that the repairs were necessary in order to keep the septic system functioning; she did not consult Mr. Payne to obtain his approval before contracting to have the system repaired. Mr. Payne contends the trial court erred in ordering him to pay half the septic system repair bill because the separation agreement clearly provided that Mrs. Payne would “assume full responsibility for all utility ... expenses.” He also asserts the trial court erred in failing to interpret “utility expenses” to include septic system repairs. We disagree. The court did not err in determining that the Paynes’ septic system was not a “utility” and that therefore Mrs. Payne was not solely liable for its repair.

The word “utility” is nowhere defined in the agreement, and it is clearly the law that “[i]n construing contracts, words are to be ⁴⁷⁹ given their ordinary meaning.” Liller v. Logsdon, 261 Md. 367, 370 , 275 A.2d 469 (1971); Mascara v. Snelling and Snelling, 250 Md. 215, 229 , 243 A.2d 1 (1968). We feel that the trial judge properly concluded that the word “utility,” as used in the agreement’s provision that “wife ... shall assume full responsibility for all utility and telephone expenses,” referred to public utility services—as opposed to a private septic system. Particularly in view of the fact that the agreement joins together utility expenses and telephone expenses in the same context, the court’s interpretation of the agreement is far more reasonable and logical than that contended by appellant. Appellant also argues that he should not be accountable for half the cost of repairing the septic system, no matter how necessary such repairs may have been, because Mrs. Payne failed to consult him and get his assent before ordering the repairs.

We find nothing in the record extract to