Stern v. Stern

BELL, Judge. Helen J. Stern sued Richard H. Stern in the Circuit Court for Montgomery County, Maryland, seeking a divorce and other relief. After a separation agreement was signed and a cross bill filed by Mr. Stern, Mrs. Stern sought additional relief including support for two physically disabled adult children. The decision of the court denying her counsel fees, but granting support for one of the adult children, generated this appeal and cross appeal.

Mrs. Stern presented two questions on appeal: I. Whether the trial court erred in denying the mother counsel fees relating to her claims for child support and arrearages as a result of its failure to apply the statutory standard. ²⁸⁶ II. Whether the trial court’s failure to award the mother counsel fees in connection with her claims for child support and arrearages constitutes an abuse of discretion. In his cross appeal Mr. Stern asserts that the trial court committed error in five aspects, all relating to awards for or on behalf of the adult son of the parties: Those contentions are, I. Whether the lower court committed reversible error by receiving and relying upon hearsay parol evidence from a privileged document to alter the plain meaning and unambiguous terms of a contract.

II

Whether the lower court misinterpreted or misapplied the statute requiring parents to support adult children dependent on them for support because of a physical disability.

III

Whether the lower court erroneously ordered defendant to pay the plaintiff ex-wife a money judgment which she lacked standing to claim and collect.

IV

Whether the procedure used by the trial court deprived defendant of due process of law, including, among other things, doing so by violating E.R.A., imposing unfair procedural burdens on defendant, depriving defendant of a jury trial, and entering a judgment not supported by the record. V. Whether the lower court improperly ordered defendant to pay for the services of an attorney who represented the ex-wife’s interests against the defendant’s. The Family History Helen J. Stern and Richard H. Stern were married on May 30, 1954. Six children were born to them as a result of this marriage: David H. born May 19, 1958, Miranda Ellen born February 6,1960, Noah F. born February 28, 1963, Simon D. born November 26, 1964, Hiram R. born July 11, 1968 and Benjamin A. born March 16, 1978.

David, Miranda and Hiram are afflicted with cystic fibrosis. ²⁸⁷ Just prior to the birth of Benjamin, the parties began having serious marital problems and Mr. Stern became involved with another woman. The parties separated briefly several times and in June of 1979, Mrs. Stern filed for divorce in the Circuit Court for Montgomery County. The parties indulged in abundant legal fencing through competent, aggressive counsel. In March of 1980 the parties entered into a voluntary separation and property settlement agreement.

This stilled the controversy for a time, and nothing further stirred until June of 1981 when Mr. Stern filed a cross bill for divorce on the grounds of voluntary separation for more than one year. Mrs. Stern answered the cross bill seeking both pendente lite and permanent support for the two adult disabled children, (David and Miranda), a use and possession order for the family home, and suit money including counsel fees and court costs. During the next two years the contest escalated; the files fattened with motions, injunctions, discovery, oppositions and memoranda. The husband clamored for a prompt divorce and enforcement of that portion of the agreement which required the wife to pay him for his share of the house.

The wife sought to forestall these actions and to secure a use and possession order for the house of the parties and support for David and Miranda. She abandoned the claim for support for Miranda at the start of a pendente lite hearing. There was also much litigation over a second health insurance policy. The discovery was extensive and hotly contested.

The paper battle has filled four court jackets and resulted in over 270 docket entries. The arguments on the motions are not even included in the five volume transcript. Education and Earnings Mr. Stern is a lawyer with a specialty in anti-trust and patent law. He received his engineering degree from Columbia Engineering School, his law degree from Indiana Law School, and he clerked for a Supreme Court Justice.

He has been Chief of the Intellectual Property Section of ²⁸⁸ the Anti-Trust Division of the United States Department of Justice. When the trial started in April of 1982, he was a partner of Baker & Hostetler earning approximately $100,-000 per year. By November and December of 1982, at the second portion of the trial, he had been eased out of his prior business association and had started a new firm with one partner who specialized in patent law. At that time he was earning approximately $50,000 per year.

Mrs. Stern received a bachelor’s degree from Barnard College in 1954. She was a librarian and had worked from time to time during the marriage.. At the time of the continuation of the trial she was working part-time in a bookstore. She had an offer for a full-time job which she rejected because she felt it would not produce sufficient income to justify her being away from the home.

Cystic Fibrosis and David Cystic fibrosis is a genetic disorder, which may be inherited only when both parents are carriers. It is typified by thick mucous secretions throughout the body. The digestive tract and the lungs are most severely affected. The disease is generally diagnosed during infancy and becomes progressively more severe.

Survival to the 30s and 40s is rare. Of the three children, David suffers the most severely. He was diagnosed at age 2 as having cystic fibrosis in 1960 and was 24 at the time of trial. He requires daily therapy and has significant pulmonary disability.

He has three to five days per month in which he feels “good”. At those times he can walk on a level for a block or two but then becomes short of breath. He is chronically exhausted and has at least two coughing spells each hour, during which he becomes incapacitated for a few minutes. David has three to four sessions per day of physical therapy called postural drainage in order to clear the lungs of mucus.

Each session lasts approximately one hour. He is hospitalized five to ten times a year for a period of ten to twenty days each time. In addition to physical therapy, his ²⁸⁹ regular treatment includes antibiotics, digestive enzymes, vitamins, nutritional supplements, and oxygen equipment supplies. David’s medical expenses are approximately $150,-000 per year.

Most of this is covered by insurance carried by Mr. Stern. At age 19 David had been employed as a clerk in the Montgomery County Library System. He left and went to Haverford College to work toward a degree. At the time of the trial he did not and could not retain a regular job.

He was living in Ardmore, Pennsylvania, auditing courses, but hoped to return to school when he could afford it. He lived in Pennsylvania because he had friends there and could “live an independent life” but he spent a substantial part of the year living with his mother. David controls his own affairs, signs himself into hospitals when necessary, drives his own car, selects his own doctors, handles his own funds and has secured SSI 1 benefits from Pennsylvania. David does not have a guardian or custodian, nor is it anticipated that application will be made for one.

The Court’s Part When the case was reached for trial, the court bifurcated the issue of support for David. Sua sponte it appointed counsel for him, heard part of the case and set a later date to hear the portion dealing with David’s support. The court declined to award attorney’s fee to Mrs. Stern; however it ordered child support and maintenance for David in the amount of $600 per month and awarded attorney’s fees for David’s appointed counsel. This appeal resulted.

Additionally the court granted Mr. Stern a divorce, denied Mrs. Stern a use and possession order, denied Mrs. Stern a permanent injunction requiring retention of the second medical insurance policy and required her to pay Mr. Stern ²⁹⁰ for the home in accordance with the agreement. There was no appeal from these parts of the decision. LAW Because the right to counsel fees depends, in part, on the resolution of the cross appeal, we will deal first with the questions raised by Mr. Stern. The Cross Appeal I. Whether the lower court committed reversible error by receiving and relying upon hearsay parol evidence from a privileged document to alter the plain meaning and unambiguous terms of a contract.

The parties entered into a separation agreement which they do not attack. Mrs. Stern claims that the issue of support for David was not resolved by the property settlement and in support of that assertion offered testimony of her understanding and letters exchanged by counsel leading up to the making of the agreement. Mr. Stern posits that the contract is not ambiguous and extrinsic evidence cannot be admitted to alter the terms and that it contains the full understanding of the parties. He adds that even if the testimony were admissible the letters should not be admitted as they were hearsay and were privileged communications written in compromise.

Leaving the issue of ambiguity for the moment, we turn first to Mr. Stern’s position that the contract contains all the agreements and understandings of the parties. In support of that position Mr. Stern points to the preamble to the agreement: It is the mutual desire of the parties to formalize their voluntary separation and to settle all questions of custody of the children, maintenance and support, alimony, counsel fees, their respective rights in the property or estate of the other, and in the property owned by them jointly as tenants by the entireties, and in the marital property, and ²⁹¹ all other matters of every kind and character arising from their marital relationship. It continues further under Miscellaneous Provisions: 4. This Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants or undertakings of, by or between the parties other than those expressly set forth herein.

While this language is very persuasive, the parties cannot bind the chancellor as to the care or maintenance of any minor child. Maryland Code (1957 Repl.Vol. 1981) Article 16, § 28. Since we will find hereafter that David is a “minor child” for purposes of the right to support, the chancellor was not bound by the agreement of the parties in this regard. On appeal Mr. Stem raises two additional grounds not raised below for objection to the letters of counsel: they were hearsay and were privileged communications.

If counsel expresses a ground for objection, any basis for objection not stated is waived. Jackson v. State, 288 Md. 191 , 416 A.2d 278 (1980). The hearsay and privileged communication objections were not raised or ruled on below and will not be reached by us. Maryland Rule 1085.

We now approach the alleged ambiguity. The law which applies in this situation is relatively uncomplicated. It was well stated by Judge Singley speaking for the Court of Appeals in Mascaro v. Snelling and Snelling, 250 Md. 215, 229 , 243 A.2d 1 (1967): Where contract language is plain and unambiguous, its meaning should be determined without reference to intrinsic facts or aids. Words are to be given their ordinary meaning.

However, if the language under consideration is ambiguous or uncertain a court must then determine the intention of the parties. In such a case a court may consider evidence of extrinsic factors: i.e., negotiations of the parties, the circumstances surrounding execution of the contract, the parties’ own construction of the contract and the conduct of the parties. (Citations omitted). ²⁹² Mrs. Stern relies on distinction drawn in the agreement between their children under and over 18, and their children in a general sense. In dealing with the custody of the children, there were different criteria if the child was under or over 18.

Mrs. Stern finds particularly significant the careful wording which provides for “support and maintenance of the wife and the minor children of the parties” in one paragraph, and in another ... to maintain for the parties’ children the present medical and health group coverage provided through his present employer or reasonable equivalent medical and health coverage so long as the terms of such insurance policy permit the coverage of such children as children. (Emphasis supplied). Mr. Stern urges us to hold that “minor children” includes adult disabled children. Mrs. Stern does not agree.

Based on the definition of minor child in the Property Disposition in Divorce and Annulment Act (Md.Code (1974 Repl.Vol. 1980) Courts and Judicial Proceedings Article § 3-6A-01(d), which includes disabled children over 18 as minor children, the provision could be interpreted either way. Since the term was ambiguous, the chancellor could consider extrinsic factors, including the negotiations of the parties and their understanding of the contract. In support of the chancellor’s interpretation was a letter from Mr. Stern’s counsel to the attorney for Mrs. Stern which mentioned the disabled children: 7. Disabled children.

This should also be discussed at the time the need arises[ 2 ] My recollection is that Article 72A as modified places an obligation on both parents, and we must examine Mrs. Stern’s ability if support of a disabled child is required. ²⁹³ The response on October 16, was 7. Disabled children. Again, if the support is resolved as above, Mrs. Stern would accept Mr. Stern’s position with regard to this item. Other correspondence corroborated Mrs. Stern’s understanding.

The exchange of correspondence by counsel is susceptible of only one conclusion and that is that the parties would defer any provision for support of the disabled adult children until such time as it was necessitated by their condition. We do not find the chancellor’s conclusions clearly erroneous. In view of the foregoing, we hold that the court did not err in admitting the extrinsic evidence explicating the meaning of the support provisions in the parties’ agreement.

II

Whether the lower court misinterpreted or misapplied the statute requiring parents to support adult children dependent on them for support because of a physical disability. Mr. Stern apparently concedes that the court may require parents to support adult children based on the requirements of Article 27 § 97 of the Maryland Code. His position is that the court erred in applying that statute in three ways. First, the record indicates that David was emancipated and cannot subsequently become a dependent.

Second, the statute was not intended to apply to persons who live independently and on their own out-of-state. “Third, the record does not support the necessary findings required to bring a case within the statute.” The statute in question is Article 27 § 97 of the Maryland Code, which provides: Any person who has an adult child destitute of means and unable to support himself by reason of mental or physical infirmity, who is possessed of or able to earn means sufficient to provide such child with necessary shelter, food, care, and clothing and who neglects or refuses so to do, shall be guilty of a misdemeanor and, ²⁹⁴ upon conviction thereof, shall be fined not more than $1,000 or imprisoned for not more than one year, or both. This particular statute was construed in Smith v. Smith, 227 Md. 355, 360 , 176 A.2d 862 (1962), to be a clear indication of the intent of the legislature to place failure to support an incapacitated child on equal footing with failure to support a minor child. David never performed more than a part-time job. If his family had not been providing the bulk of his support, including major medical expenses, he would have been destitute.

David was never free from economic dependence upon his parents and the court did not err in finding that support should be awarded to him by reason of his physical infirmity. Mr. Stern points to David’s part-time job at 19, his SSI benefits, his living in Pennsylvania, his attending school and his lack of guardianship, to establish