Goldberg v. Goldberg

• Decision Date: 24 April 1981
• Docket Number: No. 54,54
• Citation: 290 Md. 204,428 A.2d 469
• Parties: Herman GOLDBERG v. Mildred J. GOLDBERG
• Court: Maryland Court of Appeals

Page 204

290 Md. 204

428 A.2d 469

Herman GOLDBERG v. Mildred J. GOLDBERG

No. 54.

Court of Appeals of Maryland.

April 24, 1981.

Charles Norman Shaffer, Rockville (Peter I. J. Davis and Michael J. Grady, Rockville, on the brief), for appellant.

A. Howard Metro, Rockville (Ronald E. Lyons and Goldman, Walker, Greenfeig & Metro, Chartered, Rockville, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

In this case, we are called upon to interpret the support provisions contained in an enrolled decree which divorced the parties to this appeal a vinculo matrimonii more than a decade ago. The decree, entered in the Circuit Court for Montgomery County (Pugh, J.) on January 11, 1968, in addition to its pronouncement of divorce, incorporated by reference selected provisions of a property settlement and child custody agreement executed by the parties several months prior to the institution of the divorce suit. The issues in this appeal focus on the interaction between those terms of the settlement agreement which were incorporated into the decree and those left out of it.

In early November, 1967, petitioner Herman Goldberg and his wife, respondent Mildred Goldberg, recognizing that "certain unfortunate differences" portended the end of their twenty-seven year marriage, executed a property settlement and child custody agreement. Paragraph one of the understanding declared that:

(t)he husband shall pay to the wife for her support and maintenance the sum of $150.00 per week ¹.... Said payments shall terminate upon the death of the husband or of the wife, whichever shall occur first, or, in the event of the subsequent remarriage of the wife, then upon such remarriage.

In subsequent paragraphs, the husband agreed to grant to the wife custody of the parties' two children; to provide $125.00 per month as support for each child; to "keep and maintain a group hospitalization policy with surgical benefits for ... the wife, and ... children until each of them becomes twenty-one years of age;" to pay college tuition for the children; to "provide and maintain a policy of life insurance, in which the wife is designated as beneficiary, in the amount of $10,000.00;" to "convey to the wife his interest" in the family home; to "giv(e) to the wife as her sole and separate property" all their furniture and other personalty; to "divest himself" of his interest in real property which he owned in common with his mother-in-law; and to pay the wife $2,500.00 cash as well as her attorney's fees. In exchange for these promises, the wife, for her part, agreed in paragraph two:

that the ... payments (set forth in paragraph one of the agreement) are adequate for her support and maintenance and that she accepts them in lieu of any other claim that she has or may have against the husband for support, maintenance, alimony or other claim upon the husband for her right to be maintained as the wife of the husband.

In addition, Mr. and Mrs. Goldberg relinquished all rights which each had in the property or estate of the other, and both recognized that "they have accepted the benefits of (the) agreement in lieu not only of their rights against each other in and to the property of each other during the lifetime of each, but in lieu of any right that either may have against the estate of the other...." At the request of the parties, the chancellor incorporated by reference into the decree of divorce paragraphs of the property settlement agreement numbered one (the quoted provision for the support for the wife), three (providing for child support), nine (granting child custody to the wife), and ten (terminating child support should the wife cease to have custody). There was no request by the parties that the remaining paragraphs, including number two, be incorporated into the decree, nor were they.

On June 21, 1978, ten years after the decree in the divorce action was entered, Mrs. Goldberg petitioned the court in those same proceedings for an increase of alimony. By his motion raising preliminary objection, Mr. Goldberg urged that since the property settlement agreement was intended to be the final disposition of the parties' rights and obligations, and since the provisions for spousal support in paragraph one of the agreement do not constitute technical alimony, ² the chancellor was without authority to modify the payments. When the husband's preliminary objection was overruled, the respondent's petition was presented to the court's domestic relations master for consideration. Following his determination that "(p)aragraph (o)ne (of the separation agreement once incorporated into the decree) clearly meets the criteria of technical alimony," the master recommended that the amount payable under the wife support provision of the 1968 divorce decree be increased to provide that the husband pay $1,010.00 per month. ³ This recommendation was accepted and effectuated by order of the trial court, and Mr. Goldberg appealed to the Court of Special Appeals. That appellate court, in an unreported opinion, agreed that the wife support provision of the settlement compact contemplated the payment of technical alimony, and since, in that context, the paragraph was incorporated into the divorce decree, its terms are properly subject to subsequent judicial modification. The intermediate appellate court cautioned, however, that "had paragraph two (waiving alimony) been incorporated into the divorce decree ... (that provision) may well (have acted) to bar the modification in question." This Court granted certiorari to examine the propriety of the ruling. Since we now determine that the divorce decree made no provision for technical alimony, reversal is required. ⁴

We commence our review of the circuit court's order increasing the amount of support payments with the observation, disputed by neither party here, that the correctness of the chancellor's action turns wholly on whether the monies paid to Mrs. Goldberg under the 1968 decree are properly viewed as technical alimony. This is so because a decretal award of alimony of this type, whether or not contemplated in a separation agreement of the parties, Stevens v. Stevens, 233 Md. 279, 284, 196 A.2d 447, 449 (1964), is always subject to judicial modification in light of changed circumstances. Heinmuller v. Heinmuller, 257 Md. 672, 676-77, 264 A.2d 847, 850 (1970). Other spousal support payments, however, being contractual in nature, are not subject to change absent assent of the parties, notwithstanding the fact that they have been incorporated into a divorce decree. Bellofatto v. Bellofatto, 245 Md. 379, 386, 226 A.2d 313, 315-16 (1967); Schroeder v. Schroeder, 234 Md. 462, 464-65, 200 A.2d 42, 43-44 (1964); Dickey v. Dickey, 154 Md. 675, 678, 141 A. 387, 388-89 (1928). ⁵ Technical alimony can only be provided by decree of court, note 2, supra ; but since Maryland Rule 577 b authorizes the incorporation into the divorce decree of a settlement executed by the spouses, the situation often arises where the parties by their agreement contemplate an award of technical alimony which does not attain that legal status until the understanding receives judicial imprimatur through incorporation into the decree. Heinmuller v. Heinmuller, supra at 677, 264 A.2d at 850; Stevens v. Stevens, supra at 284, 196 A.2d at 450. However, where the parties do not intend an award of technical (and thus modifiable) alimony, but rather provide for contractual spousal support in the separation compact, the fact that the agreement, or that provision of it, is incorporated into a decree does not operate to transform the contractual payments into technical alimony. For examples of the analysis used to determine whether spousal payments agreed upon by the parties which were later inserted into a decree constitute technical alimony, see, e. g., Brown v. Brown, 278 Md. 672, 366 A.2d 18 (1976); Heinmuller v. Heinmuller, supra; Paylor v. Paylor, 254 Md. 154, 253 A.2d 911 (1969); Bellofatto v. Bellofatto, supra; Bebermeyer v. Bebermeyer, 241 Md. 72, 215 A.2d 463 (1965); Woodham v. Woodham, 235 Md. 356, 201 A.2d 674 (1964); Schroeder v. Schroeder, supra; Stevens v. Stevens, supra; Dickey v. Dickey, supra.

Given these principles, Mrs. Goldberg asserts that, since the wording of the support provision contained in paragraph one of the agreement "conforms in every detail with the definition of technical alimony," the decree incorporating that paragraph of the contract is subject to judicial modification, and if the language of paragraph two waiving alimony, which was not incorporated into the decree, is deemed to be inconsistent, then it was "superseded by, and merged into, the decree." This reasoning, in our view, is faulty ab initio, for the premise on which respondent rests her argument, that the separation agreement called for an award of technical alimony, is incorrect. Accordingly, the chancellor did not "(order) the (husband) to pay technical alimony," but rather merely incorporated into the divorce decree, at the request of the parties, selected provisions of their agreement. ⁶ It is true that, in determining whether technical alimony has been awarded, the terms of the decree in the first instance should be consulted and if unambiguous are normally controlling. From this, it does not necessarily follow, however, that the unincorporated provisions of a separation agreement play no role in, and thus may not be examined as part of, this interpretative inquiry. For example, in this case, the divorce decree did no more than incorporate, simply by reference to the paragraph numbers of the agreement, four provisions contained in that understanding; thus, examining the divorce decree alone to ascertain the nature of the payments ordered is uninformative without reference to the agreement. See, e. g., Dickey v. Dickey, supra; Schroeder v. Schroeder, supra; Stevens...