Cohn v. Cohn

• Decision Date: 05 April 1956
• Docket Number: No. 128,128
• Citation: 121 A.2d 704,209 Md. 470
• Parties: Maurice M. COHN v. Rae Fauman COHN.
• Court: Maryland Court of Appeals

Page 470

209 Md. 470

121 A.2d 704

Maurice M. COHN v. Rae Fauman COHN.

No. 128.

Court of Appeals of Maryland.

April 5, 1956.

William A. Gunter, Cumberland (Gunter & Geppert, Cumberland, Abram C. Joseph and Daniel C. Joseph, Baltimore, on the brief), for appellant.

W. Earle Cobey, Cumberland, (E. Stuart Bushong, Hagerstown, and Leonard H. Amdursky, New York City, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a decree of the Circuit Court for Allegany County granting a divorce a mensa to a wife on the ground of desertion, and awarding alimony in the amount of $350 per month.

The parties met in Miami, Florida, and were married in Cumberland, Maryland, on May 18, 1951. He was a successful merchant, of Cumberland, fifty-two years of age, divorced from his first wife and with three grown children. She was an impecunious widow from Toronto, Canada, forty-one years of age, with two minor children. At his insistence, the parties executed an antenuptial agreement prepared by his lawyer a week before the marriage. She did not have counsel 'because Mr. Cohn told me he could tear it up any day if we got along well, and it meant very little'. He purchased and renovated a large house where they resided for nearly three years. On March 28, 1954, he left the home and has since declined repeated offers of reconciliation. The Chancellor found that the appellant's action was without legal justification, and we agree.

It is unnecessary to review the evidence in detail. Undoubtedly, there were arguments and quarrels. Indeed, he admitted that he was ready to give up the marriage before the honeymoon was over. He complained of her extravagant testes, although he did all the buying, except for the table. He complained that she argued with him far into the night, but there was evidence that he was himself of a quarrelsome and overbearing disposition. It is settled law that a husband may not with impunity desert even a scolding wife. He was a diabetic, but the medical testimony indicates that his physical condition was no worse after the marriage than it had been before. They lived on a lavish scale, with three servants and much entertaining, but this was in line with his previkous style of living. He took her on many business and vacation trips and described himself as a 'party drinker'. On at least two occasions he came to blows with his guests. The Chancellor found that there was no support for his claim that his leaving was for reasons of health. The Chancellor also found that her efforts at reconciliation were sincere.

The chief contention seems to be that the Chancellor could not properly award alimony in this case, because of the antenuptial agreement. This agreement disclosed his property and business holdings in some detail, reciting that they were of the approximate value of $250,000. It is conceded that this estimate was substantially accurate. Paragraph 1. read as follows:

'Fully realizing the seriousness of the step contemplated, the necessary adjustments that must be made and the possible clash or conflict of temperaments the parties agree that if, within a period of three years from the date of their marriage, they shall have separated and be living separate and apart each from the other that the sole interest or demand that the second party shall have against the first party or his estate shall be the sum of $5,000.00. Should such a separation occur between the third and fifth year after the marriage of the parties the sole interest or demand of the second party against the first party or his estate shall be the sum of $7,500.00, and that should the parties at any time after the period of five years, due to their inability to live together, live separate and apart each from the other that the sole interest or demand of the second party against the first party or his estate shall be the sum of $10,000.00; and the second party, in consideration of said marriage and intending to be bound hereby, does herewith agree that should the parties be living separate and apart at any time prior to the death of the first party by reason of their inability to live together that she will make no claim or demand against the first party or to any part or share of the real and/or personal estate of which the first party may die seized or possessed except for the sums of money as set forth in this paragraph, to be paid to her by the first party should he be living or out of the estate of the first party, and she hereby waives and relinquishes, in said event, any and all claim to any allowance, alimony, support, dower, widow's award or right in and to the real and personal estate which the first party may have or which he may die seized or possessed of except for the sum above set forth, to which she may be entitled, and she covenants and agrees that upon receipt of said sum she will give to the first party, or to his estate, a complete and full release.'

Succeeding paragraphs contained a waiver on her part of any claims against his estate, except for the sum of $10,000, and and agreement that if he servived her he would pay $10,000 to her children, provided the parties were living together at the time of his or her death. We need not now consider whether any of the provisions are valid except paragraph 1. Referring to this, the Chancellor said: 'During the trial of the case and in reading the testimony it was clear that the husband's conduct was influenced greatly by the 'Buy Out' provision of the agreement. Believing as he did in the validity of this, he had no hesitation in leaving home and trying to settle for the $5,000.00. Apparently he believed that all that was necessary to relieve himself of all obligations toward his wife was to be ready to offer her $5,000.' The Chancellor held the provision invalid as against public policy.

It is a general rule that antenuptial agreements, in contemplation of marriage, are not unlawful. Levy v. Sherman, 185 Md. 63, 66, 43 A.2d 25. It was held in that case, however, that whether the parties are engaged to marry at the time or not, a confidential relation exists which casts upon each the duty of full disclosure, and the burden of establishing that the arrangement is fair. The fact that the wife and no independent legal advice as to her marital rights was also stressed. In Ortel v. Getig, 207 Md. 594, 608, 116 A.2d 145, we declined to hold that the case would be alltered if the marriage were one of convenience. In the cases cited the agreements were relied on to bar claims by widows against the estates of deceased husbands, not claims for alimony.

The rule seems to be well established in this country that an antenuptial contract which provides for, facilitates or...