Bebermeyer v. Bebermeyer

• Citation: 215 A.2d 463,241 Md. 72
• Decision Date: 27 December 1965
• Docket Number: No. 55,55
• Parties: David C. BEBERMEYER v. Helen B. BEBERMEYER.
• Court: Maryland Court of Appeals

Page 72

241 Md. 72

215 A.2d 463

David C. BEBERMEYER v. Helen B. BEBERMEYER.

No. 55.

Court of Appeals of Maryland.

Dec. 27, 1965.

Joseph Zitomer, Silver Spring, for appellant.

Albert Ginsberg, Silver Spring, (Joseph H. Schneider and Herbert D. Horowitz, Silver Spring, on the brief), for appellee.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, BARNES and McWILLIAMS, JJ.

BARNES, Judge.

Helen B. Bebermeyer, the appellee (wife), filed a bill of complaint on October 4, 1955 in the Circuit Court for Montgomery County against the appellant David C. Bebermeyer (husband) alleging the marriage of the parties in 1942, the residence of the wife in Maryland, the birth of two children as a result of the marriage--David Corbin Bebermeyer, Jr., born December 10, 1944 and James Emerson Bebermeyer, born January 2, 1950--both of whom were in the wife's care and custody, and the usual allegations of desertion of the wife by the husband. There was also an allegation that the parties had entered into a final settlement of their property rights and of the custody and support of the children as set forth in a copy of the original agreement attached as Exhibit 1. The wife prayed for a divorce a vinculo matrimonii from the husband, for her permanent care and custody of the minor children, for suit money, for confirmation of the agreement and for other relief. It will be noted that the wife did not pray for any allowance for alimony.

After the husband's answer was filed, testimony was taken which substantiated the allegations of the bill of complaint. The wife was shown the agreement of September 28, 1955 which had been filed with the bill of complaint as Exhibit 1 and in response to a question inquiring as to what it was, replied 'This is an agreement whereby we had decided who would have the children and how much maintenance I would have.'

The agreement of September 28, 1955, promises, inter alia, that the wife shall have absolute care and custody of the children and than provides that the husband shall pay to the wife:

'* * * [T]he sum of $65.00 every two weeks for the maintenance and support of hereself and their two minor children as aforesaid, the first of such payments to be made on the 13th day of May, 1955, and a like sum every two weeks thereafter, such payments to be made until the youngest child reaches twenty-one years of age. Provided that when each child reaches twenty-one, or in the event the party of the first part remarried, then the said payments shall be reduced by an amount equal to one-third of the original payment.'

The husband also agreed to convey all real property to the wife.

On Decrmber 21, 1955, the Circuit Court for Montgomery County Passed a final decree divorcing the parties a vinculo matrimonii, awarding the custody of the minor children to the wife, reuiring the husband to pay the costs and providing the following '* * * [T]hat the Agreement, dated September 28, 1955, between the parties, filed herein in evidence as plaintiff's Exhibit Number Two, providing for the and support of the minor children and the dispositionof property and property rights of the plaintiff and defendant, be, and the same is hereby, approved and ratified; and each of the parties hereto is hereby ordered to perform each and every term, condition and provision contained in said Agreement on such party's part to be performed.'

It will be observed that there was no provision in the decree for the payment of alimony to the wife.

On April 30, 1964, the wife filed a motion in the divorce suit to modify the decree of December 21, 1955, alleging that the plain intent of the agreement was that one-third of the $65.00 to be paid for her suppart was alimony for the wife and two-thirds was for support of the minor children. It was further alleged that the Internal Revenue Bureau had advised the wife that under the Internal Revenue Regulations either sum paid is considered alimony and the wife must pay income taxes on the whole amount. It was prayed that the decree 'be modified setting forth that one-third (1/3) of the payments paid for hereself and the support of the minor children is alimony for the plaintiff, and that two-thirds (2/3) of said payments are maintenance for the support of the minor children of the parties.' The wife also alleged that the husband's income had doubled since 1955, the cost of raising children had greatly increased and the wife prayed a further modification of the decree to allow a larger sum for the maintenance and support of the children.

On February 8, 1965, Judge Anderson, before whom the motion had been argued, but before whom no testimony was offered, filed a memorandum opinion and amended decree dated February 3, 1965 in which he indicated that it was intended in the argeement of September 28, 1955 that one-third of the payments 'were actually to be alimony' and the remaining two-thirds were maintenance and support for the minor children. He further stated that 'a proper construction of the separation agreement as embodied in the final decree passed by the Court in this case intended one-third of the payments as alimony for the wife, and two-third of the payments as maintenance and support for the minor children, and the Court so finds. It is apparent that the wording as set forth in the final decree dated December 21, 1955, was a typographical error and should have included the wife along with the minor children * * *.' In the decree of February 3, 1965 the trial court provided as follows:

'[T]hat the final decree passed by this Court on the 21st day of December, 1955, be, and the same is hereby, amended and modified nunc pro tunc as of July 1, 1964, as follows:

'One-third of the payments made by the defendant, David C. Bebermeyer, to the plaintiff, ...