Stern v. Stern

• Decision Date: 05 April 1984
• Docket Number: No. 691,691
• Citation: 473 A.2d 56,58 Md.App. 280
• Parties: Helen J. STERN v. Richard H. STERN. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 280

58 Md.App. 280

473 A.2d 56

Helen J. STERN v. Richard H. STERN.

No. 691 Sept. Term 1983.

Court of Special Appeals of Maryland.

April 5, 1984.

Sherry A. Bindeman, Washington, D.C., with whom were Hal Witt and Sachs, Greenbaum & Tayler, Washington, D.C., on the brief, for appellant and cross-appellee.

Barry H. Helfand, Rockville, for appellee and cross-appellant. Richard H. Stern.

Stephen P. McCarron, Olney, for David Stern.

Argued Before MOYLAN, LISS and BELL, JJ.

BELL, Judge.

Helen J. Stern sued Richard H. Stern in the Circuit Court for Montgomery County, Maryland, seeking a divorce and other relief. After a separation agreement was signed and a cross bill filed by Mr. Stern, Mrs. Stern sought additional relief including support for two physically disabled adult children. The decision of the court denying her counsel fees, but granting support for one of the adult children, generated this appeal and cross appeal.

Mrs. Stern presented two questions on appeal:

I. Whether the trial court erred in denying the mother counsel fees relating to her claims for child support and arrearages as a result of its failure to apply the statutory standard. II. Whether the trial court's failure to award the mother counsel fees in connection with her claims for child support and arrearages constitutes an abuse of discretion.

In his cross appeal Mr. Stern asserts that the trial court committed error in five aspects, all relating to awards for or on behalf of the adult son of the parties: Those contentions are,

I. Whether the lower court committed reversible error by receiving and relying upon hearsay parol evidence from a privileged document to alter the plain meaning and unambiguous terms of a contract.

II. Whether the lower court misinterpreted or misapplied the statute requiring parents to support adult children dependent on them for support because of a physical disability.

III. Whether the lower court erroneously ordered defendant to pay the plaintiff ex-wife a money judgment which she lacked standing to claim and collect.

IV. Whether the procedure used by the trial court deprived defendant of due process of law, including, among other things, doing so by violating E.R.A., imposing unfair procedural burdens on defendant, depriving defendant of a jury trial, and entering a judgment not supported by the record.

V. Whether the lower court improperly ordered defendant to pay for the services of an attorney who represented the ex-wife's interests against the defendant's.

The Family History

Helen J. Stern and Richard H. Stern were married on May 30, 1954. Six children were born to them as a result of this marriage: David H. born May 19, 1958, Miranda Ellen born February 6, 1960, Noah F. born February 28, 1963, Simon D. born November 26, 1964, Hiram R. born July 11, 1968 and Benjamin A. born March 16, 1978. David, Miranda and Hiram are afflicted with cystic fibrosis.

Just prior to the birth of Benjamin, the parties began having serious marital problems and Mr. Stern became involved with another woman. The parties separated briefly several times and in June of 1979, Mrs. Stern filed for divorce in the Circuit Court for Montgomery County. The parties indulged in abundant legal fencing through competent, aggressive counsel. In March of 1980 the parties entered into a voluntary separation and property settlement agreement. This stilled the controversy for a time, and nothing further stirred until June of 1981 when Mr. Stern filed a cross bill for divorce on the grounds of voluntary separation for more than one year. Mrs. Stern answered the cross bill seeking both pendente lite and permanent support for the two adult disabled children, (David and Miranda), a use and possession order for the family home, and suit money including counsel fees and court costs.

During the next two years the contest escalated; the files fattened with motions, injunctions, discovery, oppositions and memoranda. The husband clamored for a prompt divorce and enforcement of that portion of the agreement which required the wife to pay him for his share of the house. The wife sought to forestall these actions and to secure a use and possession order for the house of the parties and support for David and Miranda. She abandoned the claim for support for Miranda at the start of a pendente lite hearing. There was also much litigation over a second health insurance policy. The discovery was extensive and hotly contested. The paper battle has filled four court jackets and resulted in over 270 docket entries. The arguments on the motions are not even included in the five volume transcript.

Education and Earnings

Mr. Stern is a lawyer with a specialty in anti-trust and patent law. He received his engineering degree from Columbia Engineering School, his law degree from Indiana Law School, and he clerked for a Supreme Court Justice. He has been Chief of the Intellectual Property Section of the Anti-Trust Division of the United States Department of Justice. When the trial started in April of 1982, he was a partner of Baker & Hostetler earning approximately $100,000 per year. By November and December of 1982, at the second portion of the trial, he had been eased out of his prior business association and had started a new firm with one partner who specialized in patent law. At that time he was earning approximately $50,000 per year.

Mrs. Stern received a bachelor's degree from Barnard College in 1954. She was a librarian and had worked from time to time during the marriage. At the time of the continuation of the trial she was working part-time in a bookstore. She had an offer for a full-time job which she rejected because she felt it would not produce sufficient income to justify her being away from the home.

Cystic Fibrosis and David

Cystic fibrosis is a genetic disorder, which may be inherited only when both parents are carriers. It is typified by thick mucous secretions throughout the body. The digestive tract and the lungs are most severely affected. The disease is generally diagnosed during infancy and becomes progressively more severe. Survival to the 30s and 40s is rare.

Of the three children, David suffers the most severely. He was diagnosed at age 2 as having cystic fibrosis in 1960 and was 24 at the time of trial. He requires daily therapy and has significant pulmonary disability. He has three to five days per month in which he feels "good". At those times he can walk on a level for a block or two but then becomes short of breath. He is chronically exhausted and has at least two coughing spells each hour, during which he becomes incapacitated for a few minutes.

David has three to four sessions per day of physical therapy called postural drainage in order to clear the lungs of mucus. Each session lasts approximately one hour. He is hospitalized five to ten times a year for a period of ten to twenty days each time. In addition to physical therapy, his regular treatment includes antibiotics, digestive enzymes, vitamins, nutritional supplements, and oxygen equipment supplies. David's medical expenses are approximately $150,000 per year. Most of this is covered by insurance carried by Mr. Stern.

At age 19 David had been employed as a clerk in the Montgomery County Library System. He left and went to Haverford College to work toward a degree. At the time of the trial he did not and could not retain a regular job. He was living in Ardmore, Pennsylvania, auditing courses, but hoped to return to school when he could afford it. He lived in Pennsylvania because he had friends there and could "live an independent life" but he spent a substantial part of the year living with his mother. David controls his own affairs, signs himself into hospitals when necessary, drives his own car, selects his own doctors, handles his own funds and has secured SSI ¹ benefits from Pennsylvania. David does not have a guardian or custodian, nor is it anticipated that application will be made for one.

The Court's Part

When the case was reached for trial, the court bifurcated the issue of support for David. Sua sponte it appointed counsel for him, heard part of the case and set a later date to hear the portion dealing with David's support.

The court declined to award attorney's fee to Mrs. Stern; however it ordered child support and maintenance for David in the amount of $600 per month and awarded attorney's fees for David's appointed counsel. This appeal resulted.

Additionally the court granted Mr. Stern a divorce, denied Mrs. Stern a use and possession order, denied Mrs. Stern a permanent injunction requiring retention of the second medical insurance policy and required her to pay Mr. Stern for the home in accordance with the agreement. There was no appeal from these parts of the decision.

LAW

Because the right to counsel fees depends, in part, on the resolution of the cross appeal, we will deal first with the questions raised by Mr. Stern.

The Cross Appeal

I. Whether the lower court committed reversible error by receiving and relying upon hearsay parol evidence from a privileged document to alter the plain meaning and unambiguous terms of a contract.

The parties entered into a separation agreement which they do not attack. Mrs. Stern claims that the issue of support for David was not resolved by the property settlement and in support of that assertion offered testimony of her understanding and letters exchanged by counsel leading up to the making of the agreement. Mr. Stern posits that the contract is not ambiguous and extrinsic evidence cannot be admitted to alter the terms and that it contains the full understanding of the parties. He adds that even if the testimony were admissible the letters should not be admitted as they were hearsay and were privileged communications written in compromise.

Leaving the issue of ambiguity for the moment, we turn first to Mr. Stern's position that the contract contains all the agreements and understandings of the...