Schmertz v. Schmertz

Morton, J., delivered the opinion of the Court. ⁶⁴⁰ This is an appeal by the appellant/wife from an order issued by Judge John J. Mitchell, sitting in the Circuit Court for Montgomery County, that “the alimony originally established by the agreement of the parties and adopted by this Court in its Decree of April 1, 1968, be * * * abated, pending further order of the Court * * The April 1, 1968, decree granted the appellant/wife a divorce a vinculo matrimonii from the appellee/husband and incorporated therein the provisions of a separation and property agreement between the parties dated September 18, 1967. On January 24, 1975, the appellee/husband filed a “Motion to Terminate Alimony Payments” and after a hearing before a domestic relations master, the chancellor signed the order terminating the alimony payments. The appellant/wife presents two questions for resolution: “1. Are payments in a Separation Agreement for the wife’s support ‘alimony’ when she specifically waives alimony in the Agreement? 2.

Are payments in a Separation Agreement for the wife’s support ‘alimony’ when the payments are not limited to the period the parties live separately?” Paragraph 4 of the agreement contains inter alia the following provisions: “(b) until the Wife shall remarry following any divorce between the Husband and Wife, until the Wife shall die, or until the Husband, shall die, whichever event shall first occur, the Husband shall pay to the Wife, as alimony for her support and maintainance [sic] the.sum of Two Thousand Seven Hundred and No/100 Dollars ($2,700.00) per annum, payable in monthly installments of Two Hundred Twenty-Five and No/100 Dollars ($225.00), due on the first day of each month following the execution of this agreement; (c) in the event of the death of the Husband before all obligations of his pursuant to this paragraph 4. shall have terminated, such ob ⁶⁴¹ ligations shall thereupon cease and shall not constitute a charge upon his estate.” Paragraph 16 of the agreement provides: “Other than provided for in this Agreement, the Wife hereby waives alimony, support, maintenance, and alimony pendente lite, and agrees to file no action against the Husband in which she requests alimony, maintenance, support, and alimony pendente lite of any type whatsoever.” The appellant takes the position that the chancellor had no power to modify the agreement because the provisions for support in paragraph 4 cannot be construed as being technical alimony since the wife had expressly waived any right to alimony by the provisions of paragraph 16. The master and chancellor did not see paragraph 16 in that light and we think properly so. It is true, as appellant contends and the master in his report recognized, that it was rather strange to insert paragraph 16 in the agreement if the agreement in paragraph 4 did provide for alimony. Otherwise stated, why provide for alimony in paragraph 4 and refer to waiving alimony in paragraph 16.

But our judicial function is not to wonder at the ways of legal draftsmen, but to ascertain, objectively, what the parties ultimately intended. We think a fair reading of the expression in paragraph 16, “Other than provided for in this agreement, the Wife hereby waives alimony * * * ” demonstrates that the parties believed that provision for alimony had been neatly packaged in paragraph 4 and that the wife would make no claim for alimony other than that provided for in paragraph 4. Whether paragraph 16 sought to prevent the wife from seeking an increase in alimony at some future time and whether it effectively accomplished this is not before us. It is true, as appellant argues, that designating the payments called for in paragraph 4 as “alimony” cannot convert the payments into alimony if they were, in fact, contractual.

And the fact that the wife testified that she understood the payments were “alimony” cannot accomplish ⁶⁴² the conversion. Those factors would seem, however, to cast some light upon the true intention of the parties. In any event, we think a reasonable reading of paragraph 16 with paragraph 4, as well as paragraph 19, 1 compels the conclusion that the parties did not intend that the wife waived her right to alimony. Accordingly, we