Bellofatto v. Bellofatto
| Decision Date | 09 February 1967 |
| Docket Number | No. 74,74 |
| Citation | 245 Md. 379,226 A.2d 313 |
| Parties | Vincent A. BELLOFATTO v. Grace L. BELLOFATTO. |
| Court | Maryland Court of Appeals |
Russell W. Shipley, Hillcrest Heights, for appellant.
Marion West, Suitland, for appellee.
Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and FINAN, JJ.
The important facts in this case are not disputed. The appellant, Vincent A. Bellofatto (husband) was married to the appellee, Grace L. Bellofatto (wife), on April 18, 1951. No children were born of the marriage. After a reasonably happy marriage, the wife discovered that her husband was 'running around with women' and on January 13, 1963, the husband and wife separated. This separation was by mutual agreement and the husband and wife executed a written separation agreement on August 27, 1963, reciting that 'certain unhappy differences have arisen between them, by reason whereof they agreed to and did separate on January 13, 1963, and hereby agree to continue to live separate and apart from each other.' The separation agreement was prepared at the request of the wife by her counsel.
The written agreement, under seal, also provided that it should be lawful for each party to live separate and apart 'as if each were sole and unmarried' and to reside where each pleased and to conduct any business 'without any interference, direct or indirect, on the part of the other.' The agreement further provided that the home of the parties at Capitol Heights should become the property of the wife, together with the furnishings, appliances and equipment in the home, and that the 1959 Chevrolet automobile owned by the parties (actually titled in the name of the husband alone) should be the property of the wife. There was an agreement that neither party would contract debts and obligations in the name of the other party. After reciting that the wife earned $30 a week and the husband $125 a week, the written agreement provided the following:
There was also a provision that if the parties returned to cohabitation, the 'agreement shall become immediately void and of no effect thereafter.'
Title to the Capitol Heights home, its furnishings, appliances and equipment and the Chevrolet automobile were transferred to the wife by the husband in accordance with the separation agreement.
On July 9, 1965, the wife filed in the Circuit Court for Prince George's County a bill of complaint for alimony, counsel fees, court costs and other relief. This bill of complaint was filed by the wife's counsel who had also prepared the separation agreement. The wife alleged in her bill of complaint that the husband had abandoned and deserted her on January 13, 1963 with the intention to live no longer with her. She also alleged that the husband earned $150 a week and that she was unemployed and physically unable to work or to pay counsel fees and costs.
The husband was served on July 16, 1965 with the subpoena issued on July 9, 1965 and a copy of the bill of complaint. The husband testified, without contradiction, that he left the subpoena and copy of the bill of complaint with his counsel with instructions to take care of the matter. The subpoena indicated that an answer was required fifteen days after the return day, the first Monday in August. The counsel who was to represent the husband, however, did nothing about the matter as a consequence of which no answer was filed and counsel for the wife obtained a decree pro confesso on August 18, 1965. Testimony was taken before one of the Standing Examiners on August 24, 1965. The wife testified in regard to the separation on January 13, 1963 indicating culpatory reasons for the separation, that the parties had never resumed cohabitation and that there was no reasonable hope of a reconciliation. She did not mention the separation agreement but did testify as follows:
The wife also testified that she was then employed and was earning $25 a week and that her husband 'should be making at least $200 or more.' She then testified:
She suggested that the husband should pay her $50 a week.
Other witnesses testified that the husband 'ran around,' that he admitted this, that the separation occurred approximately two and one-half years prior to the time testimony was taken and that there was little likelihood of a reconciliation.
On September 21, 1965, the Chancellor signed a decree awarding the wife $50 'per week as alimony for herself,' awarded the wife's counsel a counsel fee for $200 and ordered that the husband pay the costs of suit.
Thereafter, a copy of this decree was mailed to the husband who then employed his present counsel who, on October 22, 1965, filed a motion to strike, vacate or modify the final decree, alleging the execution of the separation agreement to pay the wife $25 a week, the husband's financial inability to pay more and the reasons for the husband's failure to answer the bill of complaint and to testify at the original hearing. It was prayed that (1) the decree of September 21 be set aside and the husband be given an opportunity to answer or, in the alternative, the case be set for hearing before the court; (2) the court modify the decree to reduce the required payment of $50 a week to $25 a week, and (3) grant other relief. The Chancellor on October 22 signed an order that the motion be heard in open court on November 18, 1965 at 10:00 a. m., provided a copy of the order be served on counsel for the wife in accordance with the Maryland Rules. This service was made.
The hearing on the motion was heard on December 20, 1965. The husband testified in regard to the execution of the separation agreement of August 27, 1963 at the wife's request, its preparation by the wife's counsel and the transfer of title to the house and automobile in accordance with the separation agreement. He testified in regard to his financial situation and gave the details in regard to his delivery of the original subpoena and copy of the bill of complaint to his original counsel. The separation agreement was introduced into evidence as an exhibit. The wife, in her testimony, admitted the execution of the separation agreement, the preparation of it by her ...
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Horsey v. Horsey
...because in fact the sum provided was not technical alimony, and the court then had no power to modify it"); Bellofatto v. Bellofatto, 245 Md. 379, 386, 226 A.2d 313, 316 (1967) ("We conclude that the support payments of $25 a week provided for in the separation agreement were not alimony.........
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Barnes v. Barnes
...that term to include all of the Appellee's retirement benefits or only the deferred compensation plan." Citing Bellofatto v. Bellofatto, 245 Md. 379, 386, 226 A.2d 313 (1967), she maintains that "the ambiguous portions of the Consent Order [must be construed] against the Appellee because it......
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Schneider v. Schneider
...§ 11-101. Post-divorce spousal support may not be granted absent an enforceable contract between the parties. See Bellofatto v. Bellofatto, 245 Md. 379, 226 A.2d 313 (1967); Bebermeyer v. Bebermeyer, 241 Md. 72, 215 A.2d 463 (1965); Schroeder v. Schroeder, 234 Md. 462, 200 A.2d 42 (1964); D......
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Mendelson v. Mendelson
...award, and contractual spousal support which the court could not grant but for the agreement of the parties. See, Bellofatto v. Bellofatto, 245 Md. 379, 226 A.2d 313 (1967); Bebermeyer v. Bebermeyer, 241 Md. 72, 215 A.2d 463 (1965); Schroeder v. Schroeder, 234 Md. 462, 200 A.2d 42 (1964); D......