Chernick v. Chernick

• Decision Date: 01 September 1991
• Docket Number: No. 112,112
• Citation: 610 A.2d 770,327 Md. 470
• Parties: Sada D. CHERNICK v. Sidney S. CHERNICK. ,
• Court: Maryland Court of Appeals

Page 470

327 Md. 470

610 A.2d 770

Sada D. CHERNICK v. Sidney S. CHERNICK.

No. 112, Sept. Term, 1991.

Court of Appeals of Maryland.

Aug. 21, 1992.

Lowell J. Gordon, Rockville, for petitioner.

James G. Nolan (Witt, Nolan & Bindeman, on brief), Washington, D.C., for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

CHASANOW, Judge.

Sada and Sidney Chernick were married in 1947 and divorced in 1977. In the divorce decree, Mr. Chernick was ordered to pay Ms. Chernick alimony in the amount of $950 a month. Mr. Chernick was employed at the time of the decree, while Ms. Chernick was unemployed and had no income or assets from which to support herself. On July 16, 1987, Mr. Chernick filed a motion to terminate alimony. In the motion, which also contained a request for counsel fees, he contended that there had been a substantial change in the parties' circumstances in the ten years since the divorce decree. Mr. Chernick had retired and Ms. Chernick's financial condition had substantially improved.

At the time the motion to terminate alimony was filed, Ms. Chernick was an associate professor of mathematics at Manatee Community College in Florida. Upon receiving Mr. Chernick's motion, Ms. Chernick contacted Harvey B. Steinberg, the attorney in Maryland who had represented her in the divorce proceedings. Mr. Steinberg advised Ms. Chernick that alimony might be modified downward or even terminated due to the parties' change in circumstances. He discussed settlement with her. Ms. Chernick, who was planning to retire in the near future, was amenable to settlement, but wanted a reservation, rather than a termination, of alimony.

Mr. Chernick's attorney, James G. Nolan, scheduled a telephone deposition of Ms. Chernick for November 3, 1987 in preparation for the hearing on Mr. Chernick's motion to terminate alimony. Before the deposition began, counsel for the parties discussed settlement and reached an agreement that would resolve the entire matter. The agreement provided that Mr. Chernick's obligation to pay alimony would be terminated as of October 31, 1987, but that Ms. Chernick's future entitlement to alimony would be reserved. Mr. Chernick also agreed not to seek any attorney's fees in the matter. Mr. Steinberg telephoned Ms. Chernick and explained the provisions of the agreement to her. Ms. Chernick approved the agreement. Since the parties had reached an agreement settling the matter, no deposition was taken. Additionally, the Master's office was notified of the settlement, and the hearing on Mr. Chernick's motion to terminate alimony scheduled for November 25, 1987 was removed from the Master's calendar.

After obtaining the consent and authorization of both parties to enter into the agreement, counsel drafted and signed a proposed "consent order" embodying the terms of the agreement. The proposed "consent order" was mailed to the Circuit Court for Montgomery County. It was received by the Circuit Court on November 16, 1987, as evidenced by the clerk's stamp on the reverse side of the first page. The proposed "consent order" was placed in the court file, where it remained unsigned, apparently never having been submitted to a judge.

Ms. Chernick subsequently retained a new attorney, Lowell J. Gordon, and he entered his appearance on December 1, 1987. On the same day, Mr. Gordon filed a line advising the court that Ms. Chernick had withdrawn her consent to the proposed "consent order."

No further court action was taken by either party until February 15, 1989, when Ms. Chernick filed a motion to cite Mr. Chernick in contempt of court for his failure to pay alimony as provided in the divorce decree. Ms. Chernick alleged that, since October 1, 1987, Mr. Chernick had refused to make any alimony payments to her. Mr. Chernick opposed the motion for contempt, citing the parties' agreement as a defense. A hearing on the matter was subsequently held before a Domestic Relations Master at which time testimony was taken from the parties and Ms. Chernick's former counsel, Mr. Steinberg. Before the hearing, the parties agreed to limit the issues to the one now before this Court--"whether or not a proposed consent order that had been executed by counsel for both parties in November, 1987 ... was binding on" Ms. Chernick and could be signed by the court. The Master filed a report and recommendations in which he determined that there was a binding agreement, with valid consideration, reached by the parties in settlement of the issue of alimony; he recommended that the agreement be enforced by the court nunc pro tunc and that the "consent order" be signed. The Master opined in his report and recommendations:

"The question presented in this case is whether or not the parties entered into a valid modification agreement which is binding on them even though it was never signed by the Court. The Order was submitted, but apparently [never] reached a judge for signature. However, it is clear that Mr. Steinberg had the authority of Mrs. Chernick to enter into the agreement and did in fact execute it on her behalf. As has been stated in other jurisdictions, the Court may adopt any agreement of the parties and modify its decree to conform to the agreement if it deems it appropriate.

Both parties submitted memoranda to the Master for review as to the legal ramifications of such an agreement. The Master is satisfied that the Court may adopt the agreement of the parties and feels that this is a case in which it should do so. The parties negotiated at arm's length and reached an agreement which was satisfactory to both of them at the time. Mrs. Chernick agreed to terminate alimony, because at that time her income was more than her expenses, and Mr. Chernick agreed to a reservation of alimony in the event Mrs. Chernick retired and was in need of additional assistance.

The Master feels that this was a binding agreement with valid consideration and should be enforced by the Court Nunc Pro Tunc.

Mrs. Chernick can still file a Petition for Modification if in fact it is determined that she is in need of assistance from Mr. Chernick. This was fully explained to her and the Master feels that she was fully cognizant of the ramifications of her agreement.

Many jurisdictions have ruled that a husband and wife are authorized to enter into contracts resolving their property rights and that those agreements are valid even though they are not submitted to a court for approval.

For all of these reasons the Master feels that both parties have been protected in this situation. First of all, Mr. Chernick would have been entitled to a cessation of alimony since at the time of his legitimate retirement he was earning less money than at the time of the divorce. And also at this time Mrs. Chernick was earning more money than her monthly expenses, so that for either of those reasons, he would have been entitled to a modification. Secondly, Mrs. Chernick is protected by the reservation of alimony and can seek additional support from Mr. Chernick whenever that is deemed necessary." (citations omitted)

The Master further determined that Mr. Chernick was not in arrears in alimony payments and was not in contempt of court.

Ms. Chernick filed exceptions to the Master's report and recommendations and Mr. Chernick filed an objection to the exceptions. The matter was heard in the Circuit Court for Montgomery County. The court issued three orders in which it denied Ms. Chernick's exceptions, adopted the Master's report and recommendations, and signed the previously filed proposed "consent order." Ms. Chernick filed an appeal ¹ in the Court of Special Appeals, and in an unreported opinion, the Court of Special Appeals affirmed the three orders entered by the Circuit Court for Montgomery County. This Court then granted Ms. Chernick's petition for certiorari.

On appeal, Ms. Chernick claims that the circuit court erred in issuing the aforementioned orders. She advances three arguments to support her position. She contends that the agreement between the parties was not a valid contract because the parties did not intend that the agreement create contractual obligations between them and, even if there was mutual assent, the contract lacked consideration. Ms. Chernick further contends that, although the proposed consent judgment was filed with the court, she had the right to withdraw her consent before the judgment was actually signed by a judge. Therefore, she contends the judge had no authority to sign the "consent order." Finally, she claims that Mr. Chernick abandoned his motion to terminate alimony because of his inaction after Ms. Chernick withdrew her consent to the proposed "consent order." We will take each of these contentions in turn.

I. VALIDITY OF AGREEMENT/CAPACITY TO CONTRACT

The issue in the instant case is not whether the agreement of the parties could have been adopted by the court and incorporated into a new order modifying the alimony award in the divorce decree. Instead, based on the issue as submitted to the Master and decided by the circuit court, we must determine whether the "consent order" which was submitted by the parties in November, 1987 was properly signed by the court. We first should point out that the "consent order" submitted in November, 1987 was actually a proposed consent judgment. " 'Judgment' means any order of court final in its nature entered pursuant to these rules." Maryland Rule 1-202(m). That definition of judgment now includes equity decrees. We need not address what the court's function is in scrutinizing submitted consent judgments that terminate the case, modify an existing judgment, or maintain jurisdiction over the case and may later require the use of the court's contempt power to enforce the judgment; no such issue is raised in the instant case. See, e.g., Thomas M. Mengler, Consent Decree Paradigms: Models Without Meaning, 29 B.C.L.Rev....