Hamilos v. Hamilos, s. 1701

• Court: Court of Special Appeals of Maryland
• Citation: 450 A.2d 1316,52 Md.App. 488
• Docket Number: 9,Nos. 1701,s. 1701
• Parties: Peggy Ryan HAMILOS v. James Christ HAMILOS. J. Edward JOHNSTON, Jr. v. Helen T. JOHNSTON.
• Decision Date: 06 October 1982

Page 488

52 Md.App. 488 450 A.2d 1316 Peggy Ryan HAMILOS
v.
James Christ HAMILOS.
J. Edward JOHNSTON, Jr.
v.
Helen T. JOHNSTON. Nos. 1701, 9. Court of Special Appeals of Maryland. Oct. 6, 1982.

[450 A.2d 1317] Richard T. Cremin, Baltimore, and Thomas J. Beetel, with whom was Joseph F. Shanahan, on the brief, for appellants.

Thomas D. Washburne, Baltimore, with whom were Ober, Grimes &

Page 489

Shriver, Baltimore, on the brief for appellee, James C. Hamilos.

Thomas Waxter, Jr., Baltimore, with whom were John H. Mudd, H. Thomas Howell, Charles C. Shelton and Semmes, Bowen & Semmes, Baltimore, on the brief for appellee, Helen T. Johnston.

Page 488

Argued before GILBERT, C. J., and MORTON and MOYLAN, JJ.

[450 A.2d 1318]

Page 489

GILBERT, Chief Judge. FORWARD

Those who opine that "there is nothing new under the sun" evidence that they have spent little, if any, time in a courtroom. The tribunals of this land frequently experience something new and different. These two appeals are illustrative of the point.

The primary thrust of the suits out of which these appeals grow is to vitiate the underlying separation agreement upon which a divorce a vinculo matrimonii was granted while simultaneously allowing the decree of divorce itself to remain valid. Such a legal maneuver is akin to demolishing a structure's foundation and having the building it supported continue standing.

The Circuit Court of Baltimore City (Dorf, J.) disposed of the separate attacks on the "agreements" thusly: in one case, he granted a motion raising preliminary objection; in the other, he sustained, without leave to amend, a demurrer. The chancellor also denied a defendant's claim for counsel fees under Md.Rule 604 b. All the disappointed litigants have appealed.

The separation agreements that the appellants assail were, when the appellants were plaintiffs in the divorce cases, expressly incorporated into the divorce decrees at their request. Each agreement provided that the support was contractual and non-modifiable. Those former plaintiffs now aver that they were not competent to enter into a separation agreement. We observe, however, that neither appellant asserts that he or she was so incompetent that the decree of divorce should also be stricken. Rather, each makes pellucid that his or her assault is upon the separation agreement, separate and distinct from the decree of divorce.

Page 490

The appellants are seemingly content with the divorce decree insofar as it severed the bonds of matrimony but no further.

Since the issue in these two appeals is the same and at least one of the counsel for the appellants is identical, we, on motion, consolidated the cases. Before reaching the discussion of the issues, we shall set forth below the backdrop from which each case found its way to the circuit court and thence to this tribunal.

The Johnston Case

(Appeal No. 9, September Term 1982)

The Johnstons were married on June 26, 1948, and they separated in June 1971. Their union produced four children, all of whom have now reached their majority. Following separation, each, through counsel, negotiated the agreement now under siege. That agreement provided, inter alia, for the support and maintenance of Helen T. Johnston, the four children, the transfer of certain property interests, the execution of testamentary designations, and the creation of various trusts. The agreement made in contemplation of a divorce proceeding between the Johnstons expressly provided for its incorporation into the divorce decree itself. The agreement was executed by both parties before a notary public on February 16, 1973. The signature of the appellant was witnessed by his then counsel.

A little over a month later, in the Circuit Court of Baltimore City, Mr. Johnston filed a bill of complaint for divorce a vinculo matrimonii. He testified in open court in support of his bill of complaint, and at his express request the agreement was incorporated in the divorce decree of June 27, 1973.

Approximately eight years later, May 22, 1981, Mr. Johnston, through new counsel, filed, in the divorce case, a "Petition To Set Aside and Void Agreement." The petition averred that in March 1981, Mr. Johnston "consulted with professionals with respect to ... [his] state of mind during the

Page 491

negotiations and subsequent execution of the aforesaid [separation] agreement." The consultations reportedly disclosed that Johnston "suffered from a mental disease and/or mental defect during the negotiations and ... execution of the ... Agreement which severely impaired ... [his] mental competency at that time." Because of that alleged "incompetency," Johnston prayed that the Separation Agreement be [450 A.2d 1319] voided. The trial court was not requested to take any other action with respect to the decree.

Helen Johnston, in due time, responded by filing a "Motion to Strike and Motion Raising Preliminary Objection." She contended that the children of the marriage were necessary parties and that the separation agreement was incorporated in an enrolled decree and was thus subject to the requirements of Md.Rule 625 a. She further alleged that Rule 625 a had not been satisfied, and that the petition, on its face, showed a lack of ordinary diligence on the part of Mr. Johnston. Additionally, she requested that she be allowed "reasonable attorneys' fees." See Md.Rule 604 b.

After a hearing, Judge Dorf granted Mrs. Johnston's motion to strike the petition as untimely and because it did not comply with Md.Rule 625 a.

Judge Dorf also held that the children of the litigants were necessary parties since they had substantial pecuniary interests resulting from the separation agreement, and that they were entitled to protect those interests. He denied Mrs. Johnston's request for counsel fees.

The Hamilos Case

(No. 1701, September Term 1981)

James C. and Peggy R. Hamilos were married on April 14, 1960. Three children were born to the couple. One child is still a minor. Mrs. Hamilos, on March 1, 1979, filed a bill of complaint in the Circuit Court of Baltimore City in which, inter alia, she sought a divorce a mensa et thoro. The parties executed both a "Voluntary Separation Agreement and Property Settlement Agreement" and "Addendum" thereto

Page 492

on December 28, 1979. The Hamilos' agreement purported to be a final settlement of all property, support, and custody issues. It provided that it was to be incorporated into the divorce decree. Mrs. Hamilos' signature on the agreement was witnessed by her then counsel and acknowledged before a notary public.

Almost one month later, Mrs. Hamilos filed an amended bill in which she asserted a desire for a divorce a vinculo matrimonii. Before a Master-Examiner, she testified, inter alia, that she and her husband had entered into a separation agreement; that she was familiar with the agreement; that she had signed the agreement; and that she wanted it incorporated into the decree of divorce. The decree of March 27, 1980, incorporated the December 28, 1979, separation agreement and addendum.

Seventeen months thereafter, Mrs. Hamilos filed a petition in the divorce proceeding to "Modify Divorce Decree for Declaratory Judgment and Other Relief and Affidavit." She claimed that at the time she signed the agreement and proceeded with the divorce, "she was using alcohol in combination with prescribed drugs, and required hospitalization for an emotional disorder, and was not possessed of sufficient mental...