Stancill v. Stancill

Moylan, J., delivered the opinion of the Court. ³³⁶ The appellant, Larry G. Stancill (Husband), and the appellee, Bette H. Stancill (Wife), were granted an absolute divorce on December 23, 1976. The divorce decree incorporated the terms of an agreement between the Husban'd and Wife, dated November 5,1976. One of the terms of the agreement and of the court decree was that the Husband would pay “permanent, non-modifiable alimony” to the Wife in the amount of $650 per month. Commencing in October, 1977, the Husband failed to make these agreed-upon payments and on November 10,1977, the Wife petitioned for a contempt citation.

The issue ultimately came before Judge Edward D. Higinbothom in the Circuit Court for Harford County who found the Husband to be in default of alimony payments in the amount of $2,600. Judge Higinbothom’s order of February 3, 1978, granted a judgment in favor of the Wife and ordered the Husband to pay the arrearage within thirty days of the date of the order. He dismissed the petition for contempt. Although framed in the plural, all of the appellant-Husband’s contentions reduce themselves essentially to one.

He maintains that his support of his Wife was but one term of a contract between the two; that she breached her obligations under the contract by interfering with his visitation rights with his now 10-year-old daughter, Stacey; and that this breach of the contract on the part of the Wife operates to relieve him of his obligation. Whether the Husband may successfully interpose as a defense that his former wife denied him his visitation privileges with his daughter, as provided for in the separation agreement which was incorporated into the divorce decree, depends upon whether the covenants to grant visitation rights and to pay support to her are mutually dependent or independent. As a general rule, the covenants of a separation agreement as to child support and child custody are considered mutually dependent — the respective promises constitute the consideration for each other. This rule is based upon the general principle of the law of contracts that the covenants and promises in a bilateral contract are mutually ³³⁷ dependent.

Although many cases refuse to do so on the grounds of public policy or because misconduct by the wife should have no relevance insofar as the husband’s obligation to support his children, there are still cases which hold that when the wife breaches the provision dealing with visitation of children, she cannot enforce the provision regarding child support under the contract. 24 Am.Jur.2d, Divorce and Separation, § 924, “— Denial of visitation or custody rights,” provides, in pertinent part: “Where the parents of a minor child execute a separation agreement or other contract which gives the mother custody of the child while the father is given visitation rights or the right to temporary custody, and the agreement also requires the father to pay child support, it has been held that the mother’s unjustified refusal to allow the father to exercise his right of visitation or temporary custody is a defense to her action on the contract tor arrears of child support which accrued while she denied his rights.” (Emphasis supplied) See also Annot., Violation of custody or visitation provision of agreement or decree as affecting child support payment provision, and vice versa, 95 A.L.R.2d 118 , 155 § 10. On the other hand, covenants in a separation agreement with regard to alimony or support to the wife have been deemed independent of other provisions. 24 Am.Jur.2d, Divorce and Separation, § 923, “Breach of agreement as a defense,” provides: “The question whether the wife’s breach of the provisions of the separation agreement will constitute a defense to her action upon the agreement to enforce a provision for alimony or support is generally made to turn upon the question whether the two provisions, are dependent or independent, and the tendency of the courts seems to be to hold that provisions for alimony or support are independent of the other provisions, so that the breach is not a defense to the action.” ³³⁸ The cases holding that the covenant in a separation agreement for payment of alimony or support to the wife is independent of other provisions involve, however, the wife’s breach of a covenant not to molest her husband. See Hughes v. Burke, 167 Md. 472 , 175 A. 335 (1934); Annot., 160 A.L.R. 471 , 476, § III. Disregarding the modern tendency to view the promises in bilateral contracts as mutually dependent, the courts are apparently reluctant to relieve a husband of his