Frank v. Frank

• Decision Date: 09 December 1953
• Docket Number: No. 16,16
• Citation: 101 A.2d 224,203 Md. 361
• Parties: FRANK v. FRANK.
• Court: Maryland Court of Appeals

Page 361

203 Md. 361

101 A.2d 224

FRANK v. FRANK.

No. 16.

Court of Appeals of Maryland.

Dec. 9, 1953.

Eugene Hettleman, Baltimore, for appellant.

No brief--no appearance for appellee.

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

COLLINS, Judge.

This is an appeal from a decree dismissing the petition of appellant, Zelma Frank, for alimony.

On May 14, 1950, the appellant filed a bill for permanent alimony, alimony pendente lite and counsel fee against her husband, Eliot Frank, the appellee here. On August 31, 1950, the appellant and her husband entered into an agreement which provided substantially as follows: 'Whereas, the said Zelma Frank filed a Bill of Complaint for a divorce a mensa et thoro against Eliot Frank in the Circuit Court of Baltimore City; and whereas, conditioned upon the said Zelma Frank obtaining a divorce a mensa et thoro, the parties desire to settle amicably between them their respective property rights'; Eliot Frank agreed to release and waive to Zelma Frank, her heirs and assigns, all his right and claim to any real or personal property which Zelma Frank possessed or might hereafter possess and his dower interest and any rights in her estate. He also agreed to execute any papers to carry out such releases. Zelma Frank agreed for herself, her heirs and assigns, to release and waive 'all her right, title or claim to support, maintenance or alimony now and at any time in the future', as well as all her rights to her husband's property then possessed by him or hereafter possessed by him. She also agreed to execute any papers to accomplish such releases. The agreement further provided: '(5) Neither of the parties hereby waives or condones any cause for divorce now or hereafter existing against the other; and said Zelma Frank hereby covenants that she will not, in any proceeding taken by her at this time or at any time hereafter assert or make any claim for alimony or support for herself, and she does hereby release Eliot Frank of all right of support or alimony. (6) And the said Eliot Frank agrees, subject to the approval and further order of the court, to pay the sum of Forty ($40.00) Dollars per week to the said Zelma Frank for the support and maintenance of the infant children of the parties hereto.'

On October 16, 1951, the appellant filed an amended bill of complaint against her husband charging him with abandonment, desertion and adultery; that she was unable to support herself and her minor children while her husband earned approximately $100 per week. She asked for a divorce a mensa et thoro, alimony pendente lite, permanent alimony and costs of suit. On October 18, 1951, a cross-bill of complaint was filed by Eliot Frank against the appellant charging her with desertion and asking for a divorce a mensa et thoro. On October 23, 1951, the appellant filed an answer denying the allegations of the cross-bill of complaint.

After other proceedings which are not material here, a hearing was held in open court and on May 13, 1952, a decree was passed by the then Chancellor, John T. Tucker, granting the appellant, Zelma Frank, a divorce a mensa et thoro. This decree also contained the following: 'And it is further ordered that the Stipulation and Agreement dated August 31, 1950, between the parties hereto, and filed herein, be and the same is hereby ratified and approved, and made a part of this decree except for Paragraph No. 6 thereof, which is hereby amended. And it is further ordered that in lieu of said paragraph No. 6, that the defendant Eliot Frank shall pay all medical expenses incurred and to be incurred because of the present illness of the minor child, Stanley D. Frank, and meanwhile shall pay to the plaintiff, Zelma Frank, the sum of sixteen dollars per week for the support of the minor child, Frederick W. Frank, all subject to the further order of the Court. And it is further ordered that the defendant, Eliot Frank, shall pay to Eugene Hettleman, the plaintiff's solicitor, a counsel fee of five hundred dollars and shall further pay the costs of these proceedings.' At the bottom of this order, signed by Chancellor Tucker, is the following: 'I assent to the passage of this decree. Morton H. Perry, Atty. for Def.'

On May 24, 1952, the appellant filed in the case the following petition: '1. That your Petitioner instituted the above suit for an allowance of permanent alimony and thereafter amended it to include a divorce a mensa. 2. That in defense of the claim for alimony the defendant introduced a certain stipulation and agreement, whereby conditioned upon the said Zelma Frank obtaining a divorce a mensa, she waived alimony. 3. That before a decree was signed, and while the validity and effect of this agreement were being contested, the parties agreed that said agreement be adopted as part of the decree, provided Paragraph No. 6 thereof were amended to reflect the new agreement of the parties. 4. That on May 13, 1952, this Honorable Court passed its decree, whereby said stipulation and agreement were ratified, approved and incorporated as part of the decree, except Paragraph No. 6 which was amended to provide as the new agreement of the parties: '* * * that the defendant Eliot Frank shall pay all medical expenses incurred and to be incurred because of the present illness of the minor child, Stanley D. Frank, and * * *'. 5. The said minor child had been previously and at this time still is confined to Phipps Clinic due to a mental disorder caused by the conduct of the defendant in deserting his wife and children. 6. That the defendant has failed and refused to pay the medical expenses which he agreed to pay, and the petitioner has been forced to pay the same to preserve the health of her child. 7. That having therefore breached said agreement as amended, the defendant is no longer entitled to the benefits thereof, and your Petitioner is therefore entitled to be awarded alimony, both temporary and permanent. 8. That the depositions previously taken in this case show that the defendant was earning from January to August of 1951, $175.00 per week, and your Petitioner believes and therefore avers that he is still earning the same amount.' She asked for permanent alimony, alimony pendente lite and counsel fee.

After an answer was filed to the petition and after testimony was taken on September 17, 1952, before Chancellor W. Conwell Smith, he, on March 6, 1953, filed a decree 'that said Petition for alimony be and the same is hereby denied, without prejudice to the right of the Complainant to file an amended Petition claiming increased support for the children of the parties, and it is further ordered that costs herein shall be paid by the defendant.' From that decree appellant appeals here.

At the hearing held before Chancellor Smith on September 17, 1952, the record from Johns Hopkins Hospital, Phipps Psychiatric Clinic, was admitted in evidence showing that Stanley Frank was admitted there on February 1, 1952, discharged April 11, 1952, re-admitted on April 14, 1952, and finally discharged on June 2, 1952. A letter was admitted in evidence from Eliot Frank to Dr. Doris M. Berlin, dated March 27, 1952, in which Mr. Frank notified the hospital that he could not pay them any more money and asked that the child be sent to a State hospital. Dr. Berlin, on April 1, 1952, wrote a letter to the appellant advising her that her husband would not pay any more hospital expenses for Stanley, stating that the sudden transfer to a State hospital might produce a disturbance, and suggesting that appellant discuss the situation with her. It was admitted that the hospital bills totaled $1,585, of which amount Eliot Frank paid $747.60 and the balance of $837.40 was paid by the appellant. Mrs. Frank said she borrowed the money to pay this balance. After March 20, 1952, when the appellee went to Florida, he resumed the payment of $16 per week to appellant for Stanley. Crediting this $16 per week paid by the appellee from March 20, 1952, until Stanley was finally discharged on June 2, 1952, it was agreed that the amount owing by the appellee on the hospital bills was $655.65. Evidence was offered that from January 1, 1951, to August 23, 1951, the appellee was earning approximately $170 per week. During the time Stanley was in the hospital the appellee sent $16 per week to the appellant for the support of the other child, Frederick W. Frank. After March 20, 1952, he paid the appellant $32 per week for the support of the two children. The appellant testified that the appellee was a partner in a Baltimore firm which manufactured cartons. The appellant stated that the appellee had gone to Florida for the purpose of obtaining a divorce where he had lived for 'close to six months'. On cross-examination she said she had filed an answer to the husband's suit in Florida; had submitted to the jurisdiction of the Florida court; and had filed a petition for alimony in Florida but at the time of the hearing in this case, there had been no final ruling by the Florida courts in that case. Appellant's counsel advised us, during the argument in this Court, that the appellee has, since the hearing below, been...