Johnston v. Johnston

Decision Date13 September 1983
Docket NumberNo. 152,152
Citation465 A.2d 436,297 Md. 48
PartiesJ. Edward JOHNSTON, Jr. v. Helen T. JOHNSTON.
CourtMaryland Court of Appeals

Richard T. Cremin, Baltimore, for appellant.

Thomas Waxter, Jr., Baltimore (John H. Mudd, H. Thomas Howell, Charles C. Shelton, Rignal W. Baldwin, Jr. and Semmes, Bowen & Semmes, Baltimore, on the brief) for appellee.

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

COUCH, Judge.

Although the parties have raised four issues in this case, the issue, as we see it, is whether a separation agreement approved and incorporated but not merged in a divorce decree may be collaterally attacked. For reasons to be discussed herein, we hold that it may not be where, as here, its validity is conclusively established by the decree which operates as res judicata.

The parties hereto were married in June of 1948 and lived together 23 years prior to separating in June of 1971. During the marriage, four children were born all of whom have now reached their majority. Subsequent to their separation, each party retained counsel and negotiated an agreement the purpose of which was "to effect a final and permanent settlement of their respective property rights." The agreement was executed by the parties in February of 1973 and provided, inter alia, for the support and maintenance of Mrs. Johnston and the four children, the transfer of certain property interests, the execution of testamentary designations, and the creation of various trusts. The agreement was made in contemplation of divorce proceedings and provided:

"This agreement shall be offered in evidence in any such suit, and if acceptable to the court, shall be incorporated by reference in the decree that may be granted therein. Notwithstanding such incorporation, this agreement shall not be merged in the decree, but shall survive the same and shall be binding and conclusive on the parties for all time." (Emphasis supplied).

The agreement also provided:

"No modification or waiver of any of the terms of this agreement shall be valid unless in writing and executed with the same formality as this agreement."

Mr. Johnston filed a "Bill of Complaint for Divorce A Vinculo Matrimonii" in the Circuit Court for Baltimore City, specifically requesting "[t]hat the Agreement of the parties dated February 16, 1973 be incorporated by reference in any decree that may be granted herein." A "Decree of Divorce" was entered June 27, 1973, stating in relevant part:

"It is further ADJUDGED, ORDERED AND DECREED that the Plaintiff provide for maintenance, and support of Defendant and of the infant children of the parties, all as provided in the Agreement between the parties dated February 16, 1973 and filed in this cause of action, said Agreement being hereby approved and made a part hereof as if fully set forth herein...." (Emphasis added).

In May, 1981, Mr. Johnston filed a "Petition to Set Aside and Void Agreement" on the basis that "consultations [with professionals] ha[d] disclosed that [he] suffered from a mental disease and/or mental defect during the negotiations and subsequent execution of the aforesaid Agreement which severely impaired [his] mental competency at that time." The petition further asserted that Mr. Johnston's mental incompetency justified the voiding of the separation agreement. Mrs. Johnston in turn filed a "Motion to Strike and Motion Raising Preliminary Objection" contending that the four children were necessary parties as they were affected by the agreement, the allegations in the petition were insufficient to advise her of the nature of Mr. Johnston's mental disease or defect, that Mr. Johnston had failed to state whether he is presently mentally competent, and that she and other members of the family have relied upon and continue to rely upon the terms of the agreement. She also asserted that the relief requested should be denied because of laches and public policy. In addition, Mrs. Johnston argued that Mr. Johnston was actually seeking to have the enrolled decree set aside but had failed to allege "fraud, mistake or irregularity" as required by Maryland Rule 625. 1

Following a hearing on the matter, the chancellor granted Mrs. Johnston's motion to strike stating in pertinent part:

"I do not feel that you can bifurcate the Agreement and the divorce decree. I think that they have merged and that they are one and the same.

It is obvious that if, in fact, any attack is made on the Agreement, that attack is also made on the divorce decree. The divorce decree here is the court document, which is the binding document on the parties. The document that has set up the custody visitation, the property rights, support, alimony and so on. This decree was enrolled within 30 days. There has been no attack on this decree until ten years later. Strike that. There has been no attack on this decree until eight years later. Mr. Johnston now comes in and says the divorce decree in reality should be set aside.

Now, I think that is a play on words. I don't think there is any question that regardless of what counsel labels the petition, whether it is a petition to set aside the Agreement or to set aside what it is, it is clear in the Court's mind that the petition is seeking to either modify or set aside an enrolled judgment.

There is no question about the law, that the parties have a right to enter into a contract as to their matrimonial disputes and put those contractual obligations in a decree for divorce.

There is no question that the rule is clear as to Rule 625, that I cannot set aside this decree unless the parties can show any fraud, mistake or irregularity under the law.

There is no question here, and I don't think it is necessary at this time to rule on the question of laches.

* * *

* * *

[A]nd I think that based on the pleadings as I have seen them here, and based on the law as I understand Rule 625, and based on laches, I would at this time grant the motion to strike."

The chancellor further held that the children were necessary parties as "they have individual rights in [the] various trusts." Mrs. Johnston's request for counsel fees was denied. The Court of Special Appeals affirmed the chancellor's ruling, stating in relevant part:

"Mr. Johnston asserts that the chancellor erred, and that the case should be permitted to go to trial on Johnston's petition because the responsive pleadings are insufficient to constitute a demurrer. What appellant, Johnston, would have us do is substitute form for substance and, thereby, subject an enrolled decree to an assault it should not have to endure. We decline to subvert the enrolled decree and submit it to the indignity of an attack such as Mr. Johnston would make. If there ever was a time when the niceties of pleadings should be ignored in the interest of a just result, this is that time." Hamilos v. Hamilos, 52 Md.App. 488, 493, 450 A.2d 1316, 1320 (1982). 2

(1)

We believe that the threshold issue, which neither the chancellor nor the intermediate appellate court discussed, is whether the separation agreement merged in the decree so as to be superseded by the decree. 3 3] The decree expressly approved and incorporated the agreement. However, the agreement explicitly provided that it was not to merge in the decree but was to survive the decree. As observed by the Supreme Court of Arizona in McNelis v. Bruce, 90 Ariz. 261, 367 P.2d 625, 631 (1961) (en banc):

"It is the rule that the mere approval of a property settlement in the divorce decree does not operate to make it a part of and enforceable as a decree. If the language of the agreement shows an intent to make it part of the divorce decree and the agreement is actually incorporated in the decree, the provisions of the agreement may be enforced as an order of the court. As soon as a property settlement agreement is incorporated into the decree the agreement is superceded by the decree and the obligations imposed are not those imposed by contract but are those imposed by the decree since the contract is merged in the decree." (Citations omitted).

The language of the agreement in McNelis was similar to that in the instant case, providing:

" 'This agreement shall be offered in evidence in such action and if acceptable to the court shall be incorporated by reference in any decree that may be granted herein. Notwithstanding such incorporation, this agreement shall not be merged in the decree but shall survive the same and shall be binding and conclusive upon the parties for all time.' " Id. 367 P.2d at 631-32.

In determining whether the agreement merged in the decree so as to be modifiable by the court, the court looked to the intent of the parties, stating in pertinent part:

"The foregoing clause manifests the intention of the parties to the agreement. It was not disapproved by the court but rather adopted as part of the agreement; it therefore must be taken as speaking the intention of not only the parties but of the court that the agreement was not to be merged in the judgment." Id. 367 P.2d at 632.

The Supreme Court of California has also had occasion to discuss the issue of merger:

"Merger is the substitution of rights and duties under the judgment or the decree for those under the agreement or cause of action sued upon. The question as to what extent, if any, a merger has occurred, when a separation agreement has been presented to the court in a divorce action, arises in various situations. Thus, it may be necessary to determine whether or not contempt will lie to enforce the agreement, whether or not other judgment remedies, such as execution or a suit on the judgment, are available, whether or not an action may still be maintained on the agreement itself, and whether or not there is an order of the court that may be modified....

In any of these situations it is first necessary to determine whether the parties and the court intended a merger. If the agreement is expressly...

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