Waxler v. Waxler

• Decision Date: 14 April 1983
• Citation: 458 A.2d 1219
• Parties: Frances L. WAXLER v. Alfred J. WAXLER.
• Court: Maine Supreme Court

Page 1219

458 A.2d 1219

Frances L. WAXLER v. Alfred J. WAXLER.

Supreme Judicial Court of Maine.

Argued March 8, 1983.

Decided April 14, 1983.

Reef & Mooers, P.A., William B. Jordan (orally), Norman S. Reef, Portland, for plaintiff.

Murray, Plumb & Murray, E. Stephen Murray (orally), Ellyn C. Ballou, Portland, for defendant.

Before McKUSICK, C.J., GODFREY, NICHOLS, CARTER and WATHEN, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Active Retired Justice.

The defendant, Alfred J. Waxler, appealed to the Superior Court (Cumberland County) from a judgment of the District Court (Portland) against him in favor of his former wife, Frances, in the amount of $133,407.00 found to be due under the parties' 1975 divorce decree. The judgment was rendered in the wife's motion for arrearage brought by Frances Waxler in October of 1981. The Superior Court affirmed the judgment, agreeing with the District Court decision that neither the amount of the weekly payments made under the Property Settlement Agreement incorporated into the divorce decree, nor the rental value of an apartment and automobile furnished to the plaintiff wife thereunder, was to be credited against the sum of one hundred sixteen thousand one hundred ninety ($116,190.00) dollars in lieu of alimony which the husband agreed to pay his wife in or within the period of five years. Mr. Waxler now appeals to this Court. He asserts error in the interpretation of the Property Settlement Agreement, and especially in the failure of the trial court to consider extrinsic evidence in determining the meaning of the Agreement. We affirm the order of the Superior Court.

On March 17, 1975, Alfred and Frances Waxler entered into a separation agreement setting down in writing their covenants, agreements, mutual promises and undertakings respecting their future relationship and the property settlement agreement to which both agreed. This agreement paved the way for the judicial dissolution of their marriage of twenty-five years' duration and the property settlement was incorporated in and made a part of the divorce decree obtained in the District Court (Portland) on March 20, 1975.

This original agreement reads in pertinent part as follows:

FIFTH: The provisions of this agreement shall not be construed to prevent either party from going forward and obtaining an absolute divorce in an action which is now pending in the District Court of Maine, District Nine, Division of Southern Cumberland; and any decree so obtained by either party shall not in any way affect this agreement or any of the terms, covenants or conditions thereof, this agreement being absolute and irrevocable, both parties intending to be bound thereby;

SEVENTH: The HUSBAND agrees to pay the WIFE in lieu of alimony the sum of One Hundred Sixteen Thousand One Hundred Ninety ($116,190.00) Dollars in or within the period of five years from date. HUSBAND is to execute a non interest bearing note for said amount;

EIGHTH: HUSBAND agrees to convey the land and buildings located at 104-108 Woodford Street and 5 Bancroft Court in the City of Portland to the WIFE;

NINTH: HUSBAND will manage, control, and be entitled to the receipts of rentals on said properties until said promissory note is due. HUSBAND will be responsible for all expenses including but not limited to interest, mortgage, and real estate tax payments for said properties;

TENTH: If either property is sold prior to the due date of said note, then the proceeds will be used to reduce the mortgages on both properties and if there is a surplus, it will be used to reduce said note;

ELEVENTH: Until said One Hundred Sixteen Thousand One Hundred Ninety ($116,190.00) Dollars is paid to the WIFE, the HUSBAND agrees to pay the sum of Twenty-nine ($29.00) Dollars per week to the WIFE;

TWELFTH: On or before July 1, 1975, the WIFE agrees to move from 5 Bancroft Court to 104-108 Woodford Street where the HUSBAND will provide a rent free apartment until said note to the WIFE is paid in full;

THIRTEENTH: The HUSBAND agrees to supply and maintain an automobile for the WIFE until said sum of One Hundred Sixteen Thousand One Hundred Ninety ($116,190.00) Dollars is paid, and so long as HUSBAND remains in the automobile business;

FOURTEENTH: The WIFE agrees to convey to the HUSBAND all other interest she may have in real estate and in existing corporations;

* * *

EIGHTEENTH: Each party hereby certifies that he has read and knows the meaning and binding effect of the foregoing agreement, and that the same constitutes the entire agreement between the parties, and that no other representations, agreements, promises, or inducements have been made by either party not herein included.

The promissory note contemplated by the SEVENTH clause of the agreement was executed by Mr. Waxler on March 19, 1975, and provided in relevant part as follows:

Five (5) years after date I promise to pay to the order of Frances L. Waxler the sum of one hundred sixteen thousand one hundred ninety dollars ($116,190.00) without interest, provided, that if default be made in payment of said amount at the time aforesaid, then the undersigned shall pay to the holder, in addition to the principal, interest on any unpaid principal from the date of default at the rate of ten percent (10%) per annum or an annual interest rate equal to two percent (2%) above the average prime short-term lending rate Portland, Maine banks are then charging commercial borrowers, whichever is greater.

In the event of default, the undersigned promises to pay in addition to principal and interest, all costs of collection including reasonable attorney's fees.

In late April of 1975, barely one month after the divorce decree had been signed, the defendant-husband proposed and negotiated an amendment of the original settlement agreement. This amendment, the terms of which are not in dispute between the parties, was filed of record with the court. Received as evidence at the hearing, it modifies the EIGHTH, ELEVENTH, TWELFTH and THIRTEENTH paragraphs of the original settlement agreement as follows:

1. The intention of paragraph numbered EIGHTH is for the Husband to convey the land and buildings located at 104-108 Woodford Street and 5 Bancroft Court in the City of Portland to the Wife, and the Wife shall hold legal title to both parcels of property until the Husband pays the sum of One Hundred Sixteen Thousand One Hundred Ninety ($116,190.00) Dollars to the Wife. After full payment, the Wife is to reconvey those parcels to the Husband.

2. The intention of paragraph numbered ELEVENTH is that the Husband shall pay to the Wife the sum of Twenty-nine ($29.00) Dollars per week until the entire sum of One Hundred Sixteen Thousand One Hundred Ninety ($116,190.00) Dollars is paid in full. These payments shall cease upon payment of said sum or at the death of the Wife, whichever occurs first.

3. The intention of paragraph numbered TWELFTH is that the Wife shall be provided a rent free apartment until the note for One Hundred Sixteen Thousand One Hundred Ninety ($116,190.00) Dollars is paid in full or until her death, whichever occurs first.

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