Groves v. Alexander

• Decision Date: 05 December 1969
• Docket Number: No. 61,61
• Citation: 255 Md. 715,259 A.2d 285
• Parties: Helen K. GROVES v. J. Deaver ALEXANDER.
• Court: Maryland Court of Appeals

Page 715

255 Md. 715

259 A.2d 285

Helen K. GROVES v. J. Deaver ALEXANDER.

No. 61.

Court of Appeals of Maryland.

Dec. 5, 1969.

Leonard H. Lockhart, Elkton (Baker & Lockhart, Elkton, on the brief), and by Hyman Ginsberg, Baltimore (Ginsberg & Ginsberg, Baltimore, on the brief), for appellant.

Melvin J. Sykes, Baltimore (William B. Evans, Elkton, on the brief), for appellee.

Before HAMMOND, C. J. and BARNES, FINAN, SINGLEY and SMITH, JJ.

HAMMOND, Chief Justice.

A divorced wife is appealing from a summary judgment in favor of her former husband for $17,000, a quarterly payment of 'alimony' she had agreed in a separation and property rights agreement to pay him on March 1, 1968. The wife claims that after the divorce and after she had made one of the agreed payments, the husband obtained custody of the children despite his having led her to believe he would not ask custody, and seeks to justify her refusal to make the payments she had agreed to make by saying the agreement was based on a promise to facilitate or not defend a divorce of him by her or both and was therefore invalid. Judge Rollins found that the agreement was valid as a matter of law under Pennsylvania law which the parties had stipulated would control the interpretation and effect of the agreement. We agree with Judge Rollins and find that he properly granted summary judgment against the wife.

The respective affidavits and the exhibits reveal the following: the parties were married in 1949 and made their home in Pennsylvania until their separation. He still lives in Pennsylvania, she has remarried and now lives in Cecil County, Maryland. They have six children ranging in age from seventeen to six. They separated in 1965 and various court proceedings ensued, the precise nature of which does not appear except for a support suit against the husband and a case involving the custody of the children.

The wife is an extremely wealthy woman and the husband is a practicing physician with a substantial income and some estate. Their long and detailed separation agreement dated October 5, 1967, and a supplementary agreement of the same date (but executed two weeks later), dealing with the tax consequences of the wife paying the husband 'alimony,' which were prepared by a West Chester, Pennsylvania lawyer who represented the husband and a Philadelphia lawyer who represented the wife, reflect the wealth and the tax problems involved. Each party then though their promises and agreements were fair and believed the advice of their lawyers that they were legal, for in the agreement they recited that 'each believes the agreement to be fair, just and reasonable.'

In the document neither agreed to seek or obtain or facilitate a divorce or not to defend a divorce case brought by the other, although obviously the couple contemplated, as is usually the case in their situation, that one or the other would seek a divorce for the agreement provided that, 'Nothing in this agreement shall in any way deprive either party of the right to begin or prosecute proceedings for divorce against the other or to defend against the same,' and various provisions of the agreement are related to the possibility of divorce.

The provision in the agreement that has led to the present controversy was that the wife would pay the husband alimony as follows: $24,000 ten days after a divorce, $17,000 quarterly for three payments, $18,750 quarterly for six years from the first payment and thereafter $12,500 quarterly, all until the death of the husband or the death of the wife or the 21st birthday of the youngest surviving child. The supplemental agreement made the wife's obligations to pay the husband in the event of divorce conditional on the allowance of these payments as income tax deductions to her and on their being charged as taxable income to the husband. The reasons the wife agreed to make these 'alimony' payments become manifest on two reflections. First, under Pennsylvania law the mother as well as the father is responsible for the care and maintenance of a child who cannot care for himself, and the obligation of support in that State does not include the obligation to provide a college education in the absence of agreement to do so. ¹ In the agreement the husband promised to pay the tuition of each child in school and his or her board and tuition at college. Second, the wife could furnish the husband the money to do this by paying him 'alimony' without much cost to her because her taxes on her very large income would be substantially lessened at the expense of the husband and federal and state governments (the husband says in his brief she would actually be out of pocket less than thirty cents on each dollar paid under the agreement). ²

The parties were divorced in Philadelphia County, Pennsylvania, on November 21, 1967, at which time the wife had custody of the children. Two days later the husband brought an action for custody. Some three weeks later the wife paid the husband $24,000, the first payment called for by the agreement. When the next payment of $17,000 came due, the wife refused to make it. The husband's affidavit states that the only reason given by the wife for her continued rejection of his frequent demands for payment was 'her difficulties with (him) concerning child custody.' The wife's affidavit does not contradict this. After protracted litigation, the husband was awarded custody of the children by the Court of Common Pleas of Chester County, Pennsylvania.

To these undisputed facts the wife sought to add by her affidavit in opposition to the summary judgment against her various assertions she claims to be material facts which are in dispute. In her affidavit she summarizes the provisions of the agreement and argues that on their face they show an agreement for the purchase of a divorce, ³ and she makes the direct charge in broad conclusory form that procurement of a divorce was the illegal purpose of the agreement. Maryland Rule 610 b demands that an affidavit in opposition to a motion for summary judgment must state 'on personal knowledge * * * such facts as would be admissible in evidence.' There is no statement in the wife's affidavit of any fact as to anything the husband told the wife which was other than or different from that expressed in the agreement, and no statement of any fact which would support or necessarily imply the conclusion that the 'purpose' of the agreement was different from the purposes therein set forth. There were alleged no facts as to any collusive agreement collateral to the written document or supporting a contention that the consideration was not as expressed in the writing but really was rather the consent to and connivance in the procurement of a divorce by either party from the other. The only significant language in the affidavit which is akin to a material factual allegation is that part which states that the wife was led to believe by her former husband that she would be permitted to retain custody of the children and obtain a divorce if the monies called for by the agreement were paid. Apart from the fact that she does not state in terms what the husband actually said, the time at which she came to this belief, which she relates in the affidavit to 'when the divorce was obtained,' was November 19, 1967, a month after the supplementary agreement was signed and six weeks after the terms of both agreements had been fixed and accepted by both. The affidavit recites that the $24,000 she paid in December 1967 was paid 'based upon' her impression, allegedly conveyed to her by the husband, that she could retain the children and obtain a divorce if the payment was made. However, the obligation to make the payment was assumed by the wife in the agreement executed well before the divorce, and the payment was made three weeks after the divorce had already been obtained.

We consider the allegations and recitations which...