Saggese v. Saggese

Gilbert, J., delivered the opinion of the Court. Nova Duncan Saggese, appellant, filed a Bill of Complaint on October 8, 1970, against Vincent J. Saggese, appellee, in which she sought a divorce a vinculo matrimonii, alimony pendente lite, permanent alimony and counsel fees. Appellant grounded her suit on an oral vol ³⁸⁰ untary separation agreement allegedly entered into on the 18th day of December, 1967. In timely fashion, appellee filed an answer to the complaint in which he averred that although they separated on the date alleged by the appellant, they had, nevertheless, entered into a “Separation Agreement on the 19th day of October, 1968.” The case was heard before Judge Walter M. Jenifer, in the Circuit Court for Baltimore County, on April 8th, 20th and 21st, 1971.

The Chancellor awarded to the appellant a divorce a vinculo matrimonii on the basis of the voluntary separation, Art. 16, § 24, and, among other things, a contribution from the appellee toward appellant’s counsel fees and certain other monies not here pertinent. He declined, however, to order the payment of either alimony pendente lite or permanent alimony. Notwithstanding the wife’s attack on the agreement on the grounds of duress, oppression and undue influence, Judge Jenifer held that the wife had, by her action or inaction, ratified the separation agreement in which she had expressly waived alimony. Appellant, feeling greatly aggrieved by Judge Jenifer’s decision, has appealed the findings of the Chancellor to this Court, and assigns as reasons therefor the following: “I. The Court below erred in failing to find that the separation agreement executed between the parties was unconscionable and therefore unenforceable against the Appellant in Equity, because of gross inadequacy of consideration and the circumstances surrounding the execution of the agreement by the Appellant.

II

The Court below was in error in failing to find that the execution of the separation agreement between the parties by the Appellant was secured by the Appellee by the practice upon the Appellant of duress, undue influence, oppression and other inequitable conduct.

III

The Court below erred in finding that following the execution of the separation agreement, the conduct of the appellant was such as to constitute a ratification of the agreement by her.” ³⁸¹ Because we believe Judge Jenifer was correct in holding that the appellant, by her conduct, ratified, acquiesced in and affirmed the agreement of October 19,1968, and its amendments thereto, we shall affirm the decree of the Circuit Court for Baltimore County. In so holding, we find it unnecessary to discuss the appellant’s first and second contentions, for reasons hereinafter apparent. The testimony established that the parties were married on July 18, 1943, and they continued to reside together as husband and wife until December 18, 1967. The marriage was at best stormy, and in spite of attempts at marital counselling to work out their problems the parties were unable to reconcile their differences.

The husband consulted an attorney in November, 1967, and the wife also sought legal counselling after the husband had informed her that he had seen a lawyer. The wife’s present counsel was not her then legal advisor. After some negotiations, an agreement was drafted by appellee’s attorney which the wife and her attorney found to be unacceptable. Subsequently, on October 18, 1968, the husband visited the domicile of the wife and his two children and during a marathon discussion that apparently began around 8:00 p.m. on October 18th and terminated at approximately 2:00 a.m. on October 19th, certain amendments to the agreement were typed by the appellant.

There was testimony from the wife, and the children of the parties (both of whom have now reached their majority and both of whom were self-supporting at the time of the hearing of this matter) that the conversation between the appellant and the appellee was loud, that the appellant occasionally was in tears, a)ad that the appellee appeared to be angry. The original agreement, as drafted by appellee’s attorney, provided in pertinent part: “9. The Husband shall pay the sum of Twenty Dollars ($20.00) per week to the Wife for the support, maintenance and education of the two children aforesaid until each said child reaches ³⁸² the age of twenty-one (21) years of age, becomes married or emancipated, or shall obtain gainful employment (not including part-time employment during school recess), which ever event shall occur first. * * * “17. The Wife in consideration of this Agreement and other good and valuable considerations does hereby waive all claim to alimony, both pendente lite and permanent.” The wife then admittedly typed upon the agreement the following: “DUE TO THE URGENCY OF THIS AGREEMENT BEING SIGNED BY MR.

SAGGESE IN THE ABSENCE OF BOTH LAWYERS — THIS AGREEMENT WILL BE CONSIDERED VALID ONLY WHEN USED IN CONJUNCTION WITH THE 5 AMENDMENTS WHICH ARE ATTACHED.” This clause was signed by both parties. To the agreement were attached the 5 amendments which we quote in toto. “Amendments to the separation agreement between Vincent J Saggese and Nova Duncan Saggese. 1. Paragraph 9 amended to read $40.00 per week for food and allowance for the children. Mortgage or rent payments of $40.00 per week. $10.00 per week to be used as mother may see fit toward clothing, dental, and medical not covered by Blue Cross.

This in addition to the cost of education for the children. 2. In lieu of Paragraph 17 Mrs. Saggese will be paid the mortgage payments, or rent (should the house be sold) until the children are 21 years of age or self supporting. 3. Mr. Saggese will continue to carry complete medical insurance, including Blue Cross, Blue ³⁸³ Shield and a satisfactory major medical policy for the entire family. 4. Mr. Saggese will not further visit or call at the home. 5.

Mr. Saggese agrees to retain the children, Catherine and Bernard as equal beneficiaries on all insurance policy which Mr. Saggese now holds or to be instated (sic) in the future.” These amendments, along with the original agreement, were signed and sworn before a Notary Public in Baltimore County on October 19,1968. The appellee paid the mortgage payments and the sum of $50.00 a week as child support to the appellant until the older child, Catherine, obtained employment in April of 1970, at which time the appellant reduced the sum to $25.00 per week for the support of Bernard only, and, continued to pay the mortgage. Subsequently, when the son declined to attend college and became self-supporting, the appellee ceased making the $25.00 payment on behalf of his son. Appellee advised the appellant that he would no longer make the mortgage payments after the October, 1970 payment, and because the appellant was fearful of losing her home she sought the services of her present attorney.

As a result of negotiations between her now attorney and the husband’s counsel, the husband did pay one-half of the monthly mortgage payments until the appellant filed her Bill of Complaint. A great deal of the testimony centered around the discussion of October 18-19, 1970, and the execution of the agreement on the 19th before the Notary Public. The testimony elicited on behalf of the appellant attempted to establish duress, oppression and undue influence. However, the appellee denied the same.

The Chancellor stated in regard thereto: “The burden of proof moreover is upon the person seeking to rescind a contract on these grounds to establish by a fair preponderance of the affirmative evidence that the contract in ³⁸⁴ question was procured by duress or undue influence. “It is extremely doubtful in my mind that Mrs. Saggese has met this burden of proof. It is not necessary, however, to reach a decision in this case solely on that ground. The more important ground is the question of whether or not at this time Mrs. Saggese is entitled to a rescission of this contract.” Judge Jenifer concluded, that the ratification of the agreement by the appellant, Mrs. Saggese, overrides any other questions posed by the appellant. There was evidence to support the Chancellor’s findings and since he had the opportunity to see and hear the witnesses, those findings are entitled to great weight.

Hoffman v. Seth, 207 Md. 234 , 114 A. 58 (1955) ; Trudeau v. Trudeau, 204 Md. 214 , 103 A. 2d 563 (1954) ; Mullinix v. Mullinix, 12 Md. App. 402, 278