Frey v. Frey

• Decision Date: 23 February 1984
• Docket Number: No. 53,53
• Citation: 471 A.2d 705,298 Md. 552
• Parties: Howard Linwood FREY v. Barbara J. FREY. Sept. Term 1983.
• Court: Maryland Court of Appeals

Page 552

298 Md. 552

471 A.2d 705

Howard Linwood FREY v. Barbara J. FREY.

No. 53 Sept. Term 1983.

Court of Appeals of Maryland.

Feb. 23, 1984.

Harry S. Shapiro, Towson (Marc H. Baer, Towson, on brief), for appellant.

Maureen O'Ferrall Gardner, Towson (Bregel & Bregel, Chartered, Towson, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COUCH, Judge.

We are presented in this case with whether the public policy of Maryland regarding antenuptial agreements, which contemplate separation or divorce, and by which a spouse, inter alia, has waived alimony, has changed since we last addressed the question. Because we believe public policy has changed, we will reverse the holding of the Circuit Court for Baltimore County and remand the case for further proceedings consistent with this opinion.

I The Facts

On June 19, 1973, four days prior to their marriage, the parties entered into an antenuptial agreement. On June 23, 1973, they were married, and subsequently, three children were born. On November 5, 1981 Mrs. Frey, appellee, filed a Bill of Complaint for Divorce A Mensa Et Thoro, seeking alimony, child support, and other relief. Mr. Frey, appellant, responded raising preliminary objections to alimony and other property at issue based upon the antenuptial agreement.

The agreement was a two page document and provided, inter alia, that each party would retain sole ownership and control of all the individual property of each, which they presently possessed or thereafter acquired, as if the marriage had never occurred. The agreement further provided for a release and waiver of any claim for alimony pendente lite, permanent alimony, or support or maintenance of any kind, in the event of a separation.

At the time of their marriage, Mrs. Frey was age 22, a college graduate, and employed as a second grade teacher. Mr. Frey, at that time, was age 32, established in business, and possessed a substantially greater salary and bank account. Conflicting testimony was presented concerning the execution of the agreement. Mrs. Frey did not recall ever signing such a document, and suggested that if she had signed the agreement, her signing was due to deceit. The document, however, was notarized and sealed by a notary public. The circuit court found, supported by expert handwriting testimony, that Mrs. Frey had signed the agreement.

The testimony also conflicted on the degree of financial disclosure between the parties. No written financial disclosure was made in preparing the antenuptial agreement, and also, Mrs. Frey did not consult an attorney.

The circuit court declared the antenuptial agreement null and void as against the public policy of Maryland. After the trial judge decided the validity issue, he awarded Mrs. Frey alimony pendente lite of $200.00 per week and child support of $150.00 per week. Mr. Frey then noted an appeal to the Court of Special Appeals.

Because of the important public policy question raised in this case, we granted certiorari prior to consideration by the intermediate appellate court.

II Appealability

The threshold question in the instant case is the jurisdiction of this Court over the appeal. Although both parties agreed and urged that this Court should decide the issue presented, the principle is settled that parties may not confer appellate jurisdiction, on this Court or the Court of Special Appeals, by consent. See, e.g., King v. State Roads Commission, 294 Md. 236, 241, 449 A.2d 390, 393 (1982); Lewis v. Lewis, 290 Md. 175, 179, 428 A.2d 454, 456 (1981) (and cases cited therein). Nevertheless, we believe that the instant case is appealable as an interlocutory order.

Generally, with certain narrow exceptions, under section 12-301 of the Maryland Code appeals must be from final judgments. King v. State Roads Commission, 294 Md. at 240, 449 A.2d at 393. Maryland Code (1974, 1980 Repl.Vol.) Cts. & Jud.Proc. Article, § 12-301. Absent an exception, an action of the circuit court is not appealable unless a final judgment has been entered. The policy underlying this rule is that piecemeal appeals are disfavored. Cant v. Bartlett, 292 Md. 611, 614, 440 A.2d 388, 389 (1982). The principal exception to the final judgment rule is section 12-303, which allows appeals from certain interlocutory orders entered by a circuit court in a civil case. Maryland Code (1974, 1980 Repl.Vol.), Cts. & Jud.Proc. Article, § 12-303. Section 12-303(c)(5) allows, inter alia, an appeal from an order for the payment of money.

In the instant case the circuit court declared the antenuptial agreement void and, having overruled this preliminary objection and having heard evidence, thereafter ordered appellant to pay alimony pendente lite of $200.00 per week. "Orders for the payment of alimony or child support are not expressly covered by the statute. However, our cases make clear that such orders are orders '[f]or ... the payment of money' under § 12-303." Pappas v. Pappas, 287 Md. 455, 462, 413 A.2d 549, 552 (1980) (citing with approval Chappell v. Chappell, 86 Md. 532, 536-37, 39 A. 984, 986 (1898) (holding that it was certain that payment of alimony was an order to pay money, and was allowed in express terms by the predecessor to the present statute)). Cf. Anthony Plumbing of Maryland, Inc. v. Attorney General, 298 Md. 11, 467 A.2d 504 (Md.1983) (reviewing the history of § 12-303, and holding orders for the "payment of money" provision concerns orders in equity and specifically domestic relations litigation). ¹ In this case, the order to pay money could not have been made without the order voiding the antenuptial agreement. We could not determine the propriety of the order to pay money without considering the antenuptial agreement order. The order concerning the agreement is inseparably involved with the order to pay money and they should be considered together. In our view the matter is properly appealable.

III Merits

We now turn to the question presented, that is, whether a provision in an antenuptial agreement that contemplates separation or dissolution of a marriage, by which a spouse waives alimony, is per se void as contrary to public policy. Until today, the answer in Maryland has been "yes." We note at the outset that it is within the power and authority of this Court to change the common law and abrogate judicially created rules. See Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983). " 'When the rationales which give meaning and coherence to a judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society, a court not only has the authority but also the duty to reexamine its precedents rather than to apply by rote an antiquated formula.' " Id. at 258-59, 462 A.2d at 514 (quoting Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526, 531 (1976)). The validity of the judicially created rule that we face in the instant case must, therefore, be evaluated in view of Maryland's public policy today. In view of our evaluation, we recognize that we must overrule an outmoded rule.

The law of Maryland follows a once well recognized distinction that treats antenuptial agreements in contemplation of death differently from agreements that contemplate divorce. In Hartz v. Hartz, we held that antenuptial agreements concerning the distribution of a decedent spouse's property are favored and are upheld when validly executed. 248 Md. 47, 234 A.2d 865 (1967). We also elaborated on factors to be considered in evaluating whether the agreement was valid and enforceable. Id. at 57-59, 234 A.2d 871-72. Although public policy permits such agreements, it nevertheless strictly requires that they be fair and equitable. See also Levy v. Sherman, 185 Md. 63, 43 A.2d 25 (1945).

In Cohn v. Cohn, we approved the then well recognized rule that an antenuptial agreement in anticipation of separation and divorce was void as against public policy. 209 Md. 470, 121 A.2d 704 (1956). We stated "that an antenuptial contract which provides for, facilitates or tends to induce a separation or divorce of the parties after marriage is contrary to public policy, and is therefore void." Id. at 475, 121 A.2d at 706. Our ruling in Cohn preceded a trend that recognized a modern view of marriage and found the policy reasons of the rule no longer persuasive. We have not considered this issue since Cohn, in 1956, and today, after reviewing the caselaw, we agree with those jurisdictions that have abandoned the rule which we adhered to in Cohn.

In Cohn, the rule that the Court followed was based on two policy reasons that supported the rejection of antenuptial agreements contemplating divorce and distinguished them from the situation where the marriage was terminated by the death of one of the spouses. First, as already mentioned, the view was that the state's interest in preserving marriage was defeated by antenuptial agreements contemplating divorce because they facilitated divorce, id., presumably because providing for the financial terms of separation in advance caused discord and instability. Further, because divorce was still based only upon fault in some other states, ² some courts took the view that the agreement would be abused:

Such contract could induce a mercenary husband to inflict on his wife any wrong he might desire with the knowledge his pecuniary liability would be limited. In other words, a husband could through abuse and ill treatment of his wife force her to bring an action for divorce and thereby buy a divorce for a sum far less than he would otherwise have to pay.

Crouch v. Crouch, 53 Tenn.App. 594, 604, 385 S.W.2d 288, 293 (1964). Agreeing to the terms of a divorce before the parties even married was perceived as tending to induce divorce, and eliminating the proper effort to preserve marriage. For example, in Cohn the husband left his wife just before the stipulated amount of a lump sum payment was to advance to...