Kingsley v. Kingsley

• Decision Date: 09 April 1980
• Docket Number: No. 633,633
• Parties: Eleanor B. KINGSLEY v. Daniel T. KINGSLEY.
• Court: Court of Special Appeals of Maryland

Page 199

45 Md.App. 199

412 A.2d 1263

Eleanor B. KINGSLEY v. Daniel T. KINGSLEY.

No. 633.

Court of Special Appeals of Maryland.

April 9, 1980.

Roger W. Titus, Rockville, for appellant.

Harvey A. Jacobs, Rockville, with whom were Belli, Weil & Jacobs, Rockville, on brief, for appellee.

Argued before THOMPSON, WILNER and MacDANIEL, JJ.

MacDANIEL, Judge.

On December 16, 1977, Daniel T. Kingsley, appellee, filed a bill of complaint for a divorce a vinculo matrimonii against Eleanor B. Kingsley, appellant, alleging a one year voluntary separation of the parties as a basis for this action. Appellant filed an answer to the original bill of complaint on January 11, 1978, and then eventually filed an amended answer on August 16, 1978. On September 15, 1978, and again on February 8, 1979, testimony was taken in the Circuit Court for Montgomery County. The chancellor filed an opinion and order, dated April 17, 1979, granting a divorce a vinculo matrimonii to the appellee, and further ordering that the terms of a voluntary separation agreement between the parties, dated December 1, 1976 (amended April 22, 1977), be incorporated into the decree.

In the opinion and order of April 17, 1979, the chancellor ruled that the "Separation Agreement" was not induced by fraud, mistake, or coercion; that the amounts provided for child support were adequate and reasonable; that the amount provided for alimony was fair and reasonable; that the "Separation Agreement" was not inequitable; that the evidence was not sufficient to establish that the husband misrepresented or materially withheld the true nature of his income, either at the time of the execution of the "Agreement" or at the time of the hearing in this matter; that the evidence was not sufficient to constitute "changed circumstances" such that warrant an increase in the support and alimony amounts as provided in the "Agreement."

Subsequently, on May 2, 1979, the chancellor filed a revised opinion and order that affirmed the April 17, 1979, opinion and order, except that portion dealing with child support. The "Separation Agreement" had provided for $1300.00 per month child support but only until the "dwelling house" was sold. It then provided for $500.00 per month child support. In the original opinion and order the chancellor erroneously considered the $1300.00 per month child support, but the "dwelling house" had been sold and he should have considered the $500.00 per month child support. In his revised opinion and order the chancellor noted that the "Agreement" increased the alimony for the wife after the "dwelling house" was sold, but decreased the child support from $1300.00 to $500.00 per month. Based upon this, the chancellor increased the child support by $250.00 per month which therefore raised the $500.00 per month to $750.00 per month for child support.

On appeal, appellant states her complaints as follows:

"I. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor makes an award of alimony and child support without any findings as to either the needs of the wife and children of the parties or the husband's ability to pay.

II. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor treats the agreement of the parties with respect to alimony and child support as if it were a prior decree, declining to modify the amounts contained therein except upon a showing of changed circumstances or proof of unconscionability.

III. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor refuses to admit evidence of the standard of living of the parties prior to the separation.

IV. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor refuses to admit evidence of substantial assets which the husband presently controls as executor of an estate, the income from which he currently enjoys, and which he will inherit in the immediate future.

V. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor refuses to admit evidence of the fault which destroyed the home.

VI. In a non-culpatory divorce action where the parties have executed an agreement providing for alimony and child support, it is an abuse of discretion and reversible error where the chancellor fails to tax as part of the costs of the case the costs of a deposition admitted into evidence."

These complaints can be summarized as follows: (1) that the chancellor failed to make findings as to her needs or the needs of the children; (2) that the chancellor treated the separation agreement as a prior decree and would only admit evidence of changed circumstances since the date of the separation agreement; (3) that the chancellor failed to admit evidence of the standard of living of the parties prior to the execution of the separation agreement; (4) that the chancellor failed to admit evidence of the appellee's expectations from inheritance; (5) that the chancellor failed to admit evidence of the fault which destroyed the home, and (6) that the chancellor failed to tax the appellee with the costs of a deposition which was admitted into evidence.

Before considering these complaints, a brief factual background is necessary.

Appellant (wife) and appellee (husband) were married on January 26, 1955, and six children were born of this marriage. At the time of the hearing in this case, there were three children living at home with the appellant, whose ages were 7, 12 and 18. Pursuant to a written separation agreement, executed on December 1, 1976, the parties separated on or about December 14, 1976. Both parties were represented by counsel at that time, and both have continued with representation up to the present. This separation agreement, on its face, exhibited a comprehensive, exhaustive and knowledgeable consideration of all of the rights of the parties, included but not limited to alimony and child support. When the appellee filed the bill of complaint on December 16, 1977, copies of the separation agreement were attached, with a request to incorporate the separation agreement into any divorce decree that may be granted. Also filed in this case was an amendment to the separation agreement that had been executed by the parties on April 22, 1977. The appellant filed an answer to the bill of complaint on January 11, 1978, admitting all allegations contained therein, and praying that the court grant such relief as may be just and proper. On August 16, 1978, appellant filed an amended answer to the bill of complaint which, for the first time, in paragraph 7 stated, "Further answering, Defendant (appellant) alleges that the provisions contained in the voluntary separation and property settlement agreement of December 1, 1976, for her support and support of the minor children of the parties are not adequate to meet their present needs." This, amended answer contained a prayer, requesting an increase in alimony and child support.

I.

Of the six alleged errors, numbers II, III and V interrelate and will be considered together. The chancellor was faced with an action for divorce, a request for an increase in child support and alimony, and the status of a separation agreement valid on its face and not challenged as being the result of fraud, mistake, coercion, or irregularity. Appellant introduced testimony in an attempt to prove her allegation that appellee misrepresented or materially withheld the true nature of his income both at the time of the execution of the separation agreement and at the time of the hearing. The chancellor found this allegation without merit and we cannot say this was an abuse of discretion or clearly erroneous. Md. Rule 1086.

Before considering any increase the chancellor next had to determine whether to adopt the terms of the separation agreement relating to child support and alimony as being fair and reasonable at the time of the execution of the separation agreement. The controlling law in Maryland is contained in Eaton v. Eaton, 34 Md.App. 157, 366 A.2d 121 (1976), where this Court adopted the trial judge's opinion, which stated:

" 'By virtue of the common law and Section 28, Article 16, Md.Code, ¹ separation and property settlement agreements not disclosing on their face any injustice or inequity are presumptively valid and the burden to prove that their execution was caused by coercion, fraud or mistake is upon the party making the allegation.' " Id. at 162, 366 A.2d at 124.

See also Jackson v. Jackson, 14 Md.App. 263, 286 A.2d 778 (1971).

Appellant apparently takes the position that the chancellor should allow testimony of the standard of living of the parties prior to the execution of the separation agreement, the circumstances leading up to the separation and the fault that destroyed the home before determining whether the separation agreement was fair and reasonable. Failing to do this, reasons the appellant, the chancellor gave "res judicata " effect to the separation agreement. With no contention that all of these elements were not fairly taken into consideration by the parties at the time of the execution of the separation agreement, it would be absurd to adopt appellant's position. Under the circumstances of this case the court having concluded that there was no material misrepresentation or concealment of assets, to allow reference to conditions which existed prior to a separation agreement, fair and reasonable...