Gelmi v. Gelmi

• Decision Date: 20 July 1961
• Docket Number: No. 2712.,2712.
• Citation: 172 A.2d 888
• Parties: June R. GELMI, Appellant, v. Ottavlo GELMI, Appellee.
• Court: D.C. Court of Appeals

172 A.2d 888

June R. GELMI, Appellant, v. Ottavlo GELMI, Appellee.

No. 2712.

Municipal Court of Appeals for the District of Columbia.

Argued May 2, 1961.

Decided July 20, 1961.

John Alexander, Washington, D. C., with whom Walter W. Johnson, Jr., Washington, D. C., was on the brief, for appellant.

Arthur B. Hanson, Washington, D. C., with whom Samuel J. L'Hommedieu, Jr., Washington, D. C., was on the brief, for appellee.

Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, Retired) sitting by designation under Code § 11-776(b).

QUINN, Associate Judge.

The parties, husband and wife, became estranged in the fall of 1957. Some six months after their separation they executed an agreement purporting to settle their various marital rights. Of the twelve provisions, four related to the custody and maintenance of the parties' infant daughter, then almost three years old. Paragraph 3 of the agreement committed "legal custody" of the child to appellant; paragraph 4 divided "physical custody" between the parties, eight months with appellant and the balance with appellee; and paragraph 5, the center of the present controversy, contained appellee's pledge of financial support. It was there stated:

"The husband shall assume the obligation to support the wife and child in the amount of Fifty ($50.00) Dollars per month, payable on the fifteenth of each calendar month starting with June 15, 1958. The amount of support and maintenance that the husband shall give to said wife and child shall be increased in the amount of ten percent (10%) per annum of any increase the husband receives above the sum of Three Thousand Six Hundred ($3,600.00) Dollars per annum provided that in no event is the husband obligated to support the child in excess of One Hundred Fifty ($150.00) Dollars a month * * *. The husband shall assume the full obligation to provide for the tuition and fees of the child's school, if it should be decided that parochial or other private institutions are in the child's best interest and further provided that he has the right to veto any choice of educational institution. * * *" [Emphasis supplied.]

Finally, paragraph 6 provided for the child's religious training.

The remainder of the agreement, especially those paragraphs numbered 7, 8, and 9, concerned the parties' relations inter se, both spouses releasing their respective rights of inheritance and agreeing to honor their separate debts. Under paragraph 9 appellant stipulated further that she waived all claim to maintenance, support, and alimony.

Appellee subsequently instituted suit in the Domestic Relations Branch of the Municipal Court to enforce the agreement, specifically that section of paragraph 4 giving him "physical custody" of the child for a four-month period each year. Appellant answered challenging the validity of the agreement on the ground of mutual mistake, and counterclaimed asking full custody of the child, maintenance for both the child and herself, and suit money.

At trial appellant's effort to nullify the agreement was directed to the provision of paragraph .5 requiring appellee to furnish tuition and fees for their daughter's schooling. In this regard, evidence disclosed that shortly after the agreement was drawn, appellant, who was employed, enrolled the child in a nursery school. When she demanded that appellee pay the tuition in accordance with their agreement, he refused, asserting, as he continued to do at trial, that the...