Paylor v. Paylor

• Decision Date: 05 June 1969
• Docket Number: No. 290,290
• Parties: Russell S. PAYLOR, Jr. v. Mildred L. PAYLOR.
• Court: Maryland Court of Appeals

Page 154

254 Md. 154

253 A.2d 911

Russell S. PAYLOR, Jr. v. Mildred L. PAYLOR.

No. 290.

Court of Appeals of Maryland.

June 5, 1969.

Lloyd E. James, Sr., Hyattsville, for appellant.

Paul M. Nussbaum, Mt. Rainier (Reichelt, Nussbaum & Brown, Mt. Rainier, on the brief), for appellee.

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

FINAN, Judge.

The appellant (plaintiff below) has appealed a decree entered in the Circuit Court for Prince George's County, whereby the decree in which he was awarded a divorce a vinculo matrimonii from his wife, was amended to provide that he pay to her the sum of $177.50 on the 5th and 20th of each month, by way of support and maintenance.

It appears that the parties on October 21, 1966, executed an agreement providing, inter alia, for their mutual separation, a settlement of their real and personal property, a mutual relinquishment by each of any right to 'share' in the estate of the other, and that the husband pay unto the wife the sum of $177.50 on the 5th and 20th of each month for her support and maintenance, until the 'wife remarries or dies; whichever event occurs first.'

On December 12, 1967, the appellant filed his Bill of Complaint and the decree a vinculo was granted on July 29, 1968, with the proviso therein that the Master of Domestic Relations Causes hear evidence 'for the sole purpose of establishing support and maintenance payments for the defendant, * * *.' The Master held the hearing and in his report stated:

'The Master has read and considered the written argument of counsel together with the citations of authority and is of the opinion that the agreement between the parties sets the amount of money the plaintiff should pay the defendant wife for support.

'There is no claim of fraud, duress, unfairness or that either was under disability because of any reason. The wife makes no claim for alimony.

'The parties have entered into a complete settlement of their property rights so to deny the wife the amount agreed upon would be to rewrite the agreement.

'Grossman vs. Grossman, 234 Md. 139, 198 A.2d 260, said that where the amount is alimony it may be modified by the Court but where

'* * * the parties intend that the agreement be final property settlement * * * such later refusal of reconciliation * * * would not vitiate the agreement. It was not alimony and a Court of Equity has no right to modify a contract between the parties absent collusion, mistake or fraud.'

'See Mach vs. Boranowski, 152 Md. 53, (136 A. 34) and Kenny vs. Peregoy, 196 Md. 630 (78 A.2d 173). See also Myerberg, 2d Edition at page 88.'

Exceptions were filed to the Master's Report. On July 29, 1968, Judge Bowie overruled the exceptions and ordered payment by the appellant to the appellee of the 'sum of $177.50 on the 5th and 20th of each month for her support and maintenance.' It is from this amendment to the decree that the appeal is taken.

In his exception filed to the Master's Report, and in his argument before this Court, the appellant makes the obtuse contention that since the chancellor had not incorporated the separation agreement into the decree a vinculo, Maryland Rule S77 b, leaving the question of support payments for consideration by the Master, such action meant that the chancellor had, out of hand, rejected consideration of the payments provided for in the agreement, as payments for support and maintenance, but rather, viewed them as alimony. The significance of the construction to be placed on the payments under the agreement being, that should the payments constitute alimony the chancellor would have been free to modify or change the amount of payments, in which case the Master should have taken testimony on the appellant's ability to pay. On the contrary, if the payments were to be construed as support and maintenance, then the chancellor should have been bound by the terms of the agreement and there would have been no need to refer the issue of support payments to the Master.

We think the appellant places an artificial restriction on the instructions given by the chancellor to the Master. In referring the case to the Master '* * * for the sole purpose of establishing support and maintenance payments for the defendant * * *,' the Master was certainly not precluded under such instruction from reviewing the agreement between the parties which had been filed as an exhibit in the proceeding. We are likewise of the opinion that the contention that, because the chancellor in his decree a vinculo failed to incorporate therein the support provisions provided by the agreement, expressly leaving this matter open, he was thereafter precluded from incorporating it in the amended decree, is without substance. We think the chancellor, sua sponte, regardless of the recommendations of the Master, could, if he so chose, incorporate in his amendment to the decree, that portion of the separation agreement concerning support and maintenance. Maryland Rule S77 b provides:

'A deed, agreement or settlement between husband and wife as described in Art. 16, Sec. 28 of the Annotated Code of Maryland may be received in evidence and made a part of the record in an action for divorce, annulment or alimony and may be incorporated, insofar as the court may deem proper, into the decree.'

In any event, we believe the chancellor was correct in accepting the Master's recommendations which classified the payments to be made by virtue of the separation agreement as payment for support and maintenance and incorporating them into the decree. We think this issue is controlled by Schroeder v. Schroeder, 234 Md. 462, 200 A.2d 42 (1964). In Schroeder, the husband petitioned the court to modify the payments on the ground that the financial condition of the parties had changed, but the chancellor dismissed the petition, being of the opinion that the payments were not alimony, but payments for support and maintenance provided under an agreement made between the parties. The agreement provided for a periodic payment of $25.00 per week payable until the wife died or remarried and stated that it was, 'permanent alimony, subject to the further Order of the Court,' and the wife released the husband from any and all other claims that otherwise could be asserted for alimony or support. Judge Marbury, writing for the Court, stated:

'The chancellor apparently accepted the position taken by the appellee, namely, that notwithstanding the recitation that the payments were alimony subject to court modification, since there was no specific mention that payments were to continue only during the joint lives of the parties, they were not alimony. The principle that payments must cease at the death of either party to constitute alimony reaches as far back as Wallingsford v. Wallingsford, 6 Har. & J. 485, and has been reiterated innumerable times in our decisions...