Weaver v. Garrett

Gilbert, J., delivered the opinion of the Court. Lewyn Weaver, Jr. (Weaver), appellant, and Mildred Garrett (Garrett), appellee, were divorced on April 13, 1966. By the terms of the decree of divorce Weaver was required to pay unto Garrett $10.00 per week for the ²⁸⁴ support and maintenance of each of four minor children. When the petition to cite Weaver for contempt was heard before a Master in Chancery, Lucy Ann Garvey, Weaver was $6810.00 in arrears.

A total arrearage of $4960.00 was for the years 1968,1969 and half of 1970, and $1850.-00 of the arrearage was accumulated in 1966 and 1967. Both parties to this case had remarried prior to the filing of the Petition to Cite for Contempt. The record discloses that Garrett’s counsel wrote to Weaver on February 24,1970, as follows: “The time has now come for your children to be legally adopted by their step father, Mr. William Garrett. It is necessary at this time for you to sign a waiver which must be filed in the court. “I have sent this form to Mr. and Mrs. Garrett and have instructed them to visit you at their earliest convenience in order that you might sign same.

I want you to knoW at this time that I will, without hesitation, bring action against you for the arrears of non-support for said children if you do not cooperate with Mr. and Mrs. Garrett and sign the aforementioned paper.” Thereafter, Weaver obtained the services of an attorney. On April 24, 1970, counsel for Garrett wrote to Weaver’s counsel, “I received this date a letter from Mr. and Mrs. Garrett who state that they will positively not sign any release waiving the obligation for the arrears of your client Mr. Weaver until he has executed the Petition for Adoption. I believe you have the aforementioned in your file, if not Mr. Weaver can give you same. “I would like for you to have your client execute this Petition for Adoption and forward same back to me, and I will at that time for ²⁸⁵ ward to you a release in this matter. You will have to trust me and take my word as an attorney that I will guarantee you a release in this matter.

If we cannot proceed along these lines I guess we will have no other alternative than to bring Mr. Weaver in for non-support of payments * * In early June, 1970, Garrett’s attorney again wrote to Weaver’s counsel: “I have just spoken with my clients, * * * and at this time they are not prepared to file the Petition for Adoption due to the fact that they have to assign a waiver disallowing Mr. Weaver any right to be brought into court for arrears owed. As I told you in our last conversation I would not file the Petition for Adoption under these circumstances. Mrs. Garrett tells me that she would like to file the Petition for Adoption and would not press the issues of arrears as she would like for her daughter to make that decision on her own. “I have no other alternative at this point, Walter, than to file Petition for Contempt based on the $7,000.00 arrears due in owing Mrs. Garrett for the support of four minor children.” The document executed by Weaver was not made a part of the record. A “Petition for Contempt Citation” was filed on June 17, 1970, and the “Answer” thereto was timely.

The matter was heard before the Master on July 6,1970. The Master concluded that Weaver was in arrears and recommended a monetary judgment of $1850.00 against him for the years 1966 and 1967. She also recommended “a reasonable lump sum payment on account of the arrears due” and that the sum of $20.00 per week be paid on the arrearage in addition to the sum of $40.00 per week ordered by the April 13,1966 decree. ²⁸⁶ Weaver filed “Exceptions” to the Master’s recommendations. On April 5, 1971, Judge Prendergast overruled the Exceptions,