Noffsinger v. Noffsinger

• Decision Date: 01 September 1992
• Docket Number: No. 858,858
• Citation: 620 A.2d 415,95 Md.App. 265
• Parties: Gloria NOFFSINGER v. Theodore J. NOFFSINGER, Jr. ,
• Court: Court of Special Appeals of Maryland

Page 265

95 Md.App. 265

620 A.2d 415

Gloria NOFFSINGER v. Theodore J. NOFFSINGER, Jr.

No. 858, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Feb. 25, 1993.

Neal J. Meiselman (Linda Haspel, and Haspel & Meiselman, Chartered, on brief), Rockville, for appellant

Kevin G. Hessler (Harvey B. Steinberg, and Miller & Steinberg, on brief), Rockville, for appellee.

Argued before BLOOM, WENNER and HARRELL, JJ.

BLOOM, Judge.

By a decree dated 3 February 1992, the Circuit Court for Montgomery County granted Dr. Theodore J. Noffsinger Jr.

an absolute divorce and his wife, Gloria Noffsinger, a monetary award of $82,198 and [620 A.2d 417] counsel fees of $8,000. Mrs. Noffsinger appeals from the judgment of divorce claiming (1) that the decree was based upon stale testimony, (2) that a certain limited partnership investment and a boat are marital property, and (3) that the marital property interest in the marital home has a value far in excess of that determined by the trial court. Dr. Noffsinger cross-appeals, asserting that a separation agreement executed by the parties was not abrogated by their subsequent reconciliation and that the judge who adopted the master's findings regarding the agreement failed to exercise independent judgment. We shall first consider the issue raised by Dr. Noffsinger's cross-appeal, then address each of Mrs. Noffsinger's issues in turn.

FACTUAL BACKGROUND

The parties were married 12 August 1977. Each party had children as a result of prior marriages. Dr. Noffsinger adopted Mrs. Noffsinger's two children, William and Kimberle. The couple's marital discord came to a head in June of 1986 when Mrs. Noffsinger left the marital home, complaining that her husband drank excessively. She took up residence with a girl friend in Annapolis until November 1986 when she returned to her husband. In February of 1987, Mrs. Noffsinger again left her husband. During that separation, the parties negotiated and signed a separation agreement dated 11 February 1987.

The agreement required that Dr. Noffsinger continue to pay for the college education of Kimberle, his adopted daughter. As part of the agreement, each party waived the right to claim any monetary award as an adjustment of his or her marital property rights, waived any claim to a share in the other's estate, and waived the right to serve as a personal representative of the other's estate. The parties also agreed to a division of personal property and of state and federal income tax refunds, and Dr. Noffsinger agreed The parties began to see each other again in June of 1987 and resumed living together in the marital home in September of the same year. When the couple reconciled, Dr. Noffsinger ceased paying spousal support but continued to pay Kim's college expenses.

to pay his wife $1,290 a month for a twelve month period as alimony.

Mrs. Noffsinger left her husband for a third and final time in October of 1988 at which time she filed a complaint for limited divorce, alimony, monetary award, and other relief, alleging that Dr. Noffsinger had constructively deserted her. In his answer, Dr. Noffsinger asserted the validity of the separation agreement. The issue as to the validity of the separation agreement was severed and referred to a master for hearing and recommendations.

After a hearing on 22 June 1989, Master S. Michael Pincus found that the parties intended that the separation agreement be abrogated by virtue of their subsequent reconciliation. Dr. Noffsinger filed exceptions to the master's report and recommendations. Judge Beard denied the exceptions, and the matter was referred to another master for hearing, report, and recommendations on the remaining issues. That hearing was conducted on the 30th and 31st of July 1990. At its conclusion, Master William P. Turner, interpreting Judge Beard's ruling to mean that the separation agreement remained effective for the executed portions of the agreement but not those that were executory at the date of reconciliation, recommended that Mrs. Noffsinger receive a monetary award of $44,000 and $6,000 in counsel fees. Because Mrs. Noffsinger failed to prove constructive desertion, Master Turner recommended that she be denied alimony.

Both parties filed exceptions to Master Turner's report and recommendations. Judge McGuckian presided over the hearing on the exceptions and entered an order affirming the master's proposed recommendations except as to the monetary award, which he increased to $82,198 (approximately

40% of the value of what Master Turner found to be the marital property in Dr. Noffsinger's name alone) and counsel [620 A.2d 418] fees, which he increased to $8,000. Both parties appealed.

THE EFFECT OF RECONCILIATION ON A SEPARATION AGREEMENT

Dr. Noffsinger argues that, because the separation agreement apportioned repayment of debts, allocated tax refunds, released the parties from future obligations, and addressed additional matters such as custody of the minor child and the payment of college expenses, the resumption of cohabitation did not abrogate its provisions regarding support and property settlement. We disagree.

Maryland case law unequivocally holds that a separation agreement that is more than just a contract of separation and support is not abrogated by the mere resumption of cohabitation. Grossman v. Grossman, 234 Md. 139, 198 A.2d 260 (1964). See also Frana v. Frana, 12 Md.App. 273, 278 A.2d 94 (1971). In Frana this Court articulated the principle:

[A] contract of separation is annulled and avoided, not solely, or necessarily as a matter of law, by a subsequent reconciliation, cohabitation or resumption of the marital relationship, but rather by the intentional renunciation of the agreement which the reconciliation and resumption of marital relations sometimes evidences.

Id. at 284, 278 A.2d 94 quoting 30 C.J. § 847, p. 1065.

Dr. Noffsinger points to certain language in the report of Master Pincus to support his argument that the master incorrectly viewed the agreement as a mere separation agreement and therefore committed error in finding that the parties' cohabitation had abrogated the agreement. He further argues that Judge Beard incorrectly adopted the master's recommendations without independent review.

Our analysis of Judge Beard's order discloses no error. Master Pincus, on the basis of his findings as to the parties' The Court of Appeals refined that principle in Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991), by pronouncing that the ultimate conclusions of the master are not merely to be tested by the clearly erroneous standard. See also Kirchner v. Caughey, 326 Md. 567, 606 A.2d 257 (1992). Instead, the chancellor must make an independent review of the record and of the facts properly found by the master. Id. [323 Md.] at 491, 593 A.2d 1133. If the independent exercise of judgment by the chancellor would produce results different from the conclusions and recommendations of the master, despite the fact that these recommendations were well supported by the evidence, then these recommendations must give way to the independent judgment of the chancellor. Domingues, at 491-92, 593 A.2d 1133. Absent a clear abuse of discretion, a decision by the chancellor that is both grounded in the law and based upon factual findings that are not clearly erroneous will not be disturbed. Ross v. Hoffman, 280 Md. 172, 186, 372 A.2d 582 (1977).

intentions, recommended that the separation agreement be declared abrogated by their subsequent reconciliation. On receipt of this recommendation, Judge Beard could have ordered a de novo fact-finding or he could have made a ruling based exclusively on the report of the master. Wenger v. Wenger, 42 Md.App. 596, 402 A.2d 94 (1979). When relying upon the report of the master, the chancellor should "defer to the fact-finding of the master where that fact-finding is supported by credible evidence and is not, therefore, clearly erroneous. The chancellor, however, ... always reserves unto himself the prerogative of what to make of those facts--the ultimate disposition of the case." Id. at 602, 402 A.2d 94.

In the instant case, Master Pincus found that the parties were reconciled for a second time somewhere between May of 1988 and September of 1988, at which time they resumed living together. He also found that Dr. Noffsinger stopped paying alimony once the parties were reconciled, in part because "it was the intent of the parties when they signed Dr. Noffsinger's exceptions to Master Pincus's report and recommendation did not allege any specific errors in fact-finding by the master. ¹ He asserted, as a matter of law, that the parties did not, by their reconciliation, abrogate their separation agreement. Relying on Wenger v. Wenger, supra, he also contended that the master's determination that the parties intended to abrogate the agreement was not a "first level" finding of fact but a "second level" or conclusory finding. He was wrong. As Judge McAuliffe, writing for the Court of Appeals in Domingues, explained, the distinction "between 'first-level facts,' which should be accepted unless clearly erroneous, and 'more abstract, second-level, conclusory or dispositional facts,' which are not entitled to such deference" as drawn in Wenger was too simplistic. The example given by Judge McAuliffe, 323 Md. at 494, 593 A.2d 1133, indicates that the At the hearing on the exceptions, Judge Beard, after reviewing the record, ruled that Master Pincus was "not erroneous in his findings." Based upon the master's factual finding that the parties intended to abrogate the agreement when they resumed cohabitation, Judge Beard concluded that the voluntary separation agreement had been abrogated, and so declared in an order dated 19 December 1989.

                the Agreement to live separate and apart and obviously that intention changed."   Based upon the evidence[620 A.2d 419]  before him, the master also found that Dr. Noffsinger never discussed

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