Weiss v. Melnicove

• Decision Date: 20 January 1959
• Docket Number: No. 112,112
• Citation: 218 Md. 571,147 A.2d 763
• Parties: Abraham WEISS v. Bernard S. MELNICOVE.
• Court: Maryland Court of Appeals

Page 571

218 Md. 571

147 A.2d 763

Abraham WEISS v. Bernard S. MELNICOVE.

No. 112.

Court of Appeals of Maryland.

Jan. 20, 1959.

Paul Berman and Sigmund Levin, Baltimore, (Melvin J. Sykes and Theodore B. Berman, Baltimore, on the brief), for appellant.

Joseph S. Kaufman, Baltimore, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

This appeal is from a judgment in an action for legal services rendered, tried by the court without a jury, against a husband and in favor of an attorney who had represented the wife in negotiations looking towards a property settlement and separation agreement, which did not come to fruition. The appellant contends that the services rendered were not 'necessaries', and that no implied promise to pay can be raised under the circumstances. No question is pressed as to the amount of the judgment.

The testimony is clear that both husband and wife called upon Mr. Gordon, the husband's attorney, and told him they had domestic problems and had agreed to separate. Mr. Gordon stated he could not represent both parties, and that the wife would have to seek her own counsel. It is undisputed that the wife was without means of her own, and that the husband was a relatively wealthy man, with a gross income of about $100,000 a year, some of which, however, was probably pledged to reinvestment in a partnership of which he was a member. She consulted the appellee, with at least the tacit consent of her husband. There were long negotiations thereafter, and a separation agreement was drafted by the appellee, and tentatively approved by the counsel for both parties. But at the last moment the parties fell out over some relatively minor details, and the wife refused to go through with it. Thereafter, divorce proceedings were instituted by her, through new counsel.

The appellant contends that it was incumbent upon the appellee to show that 'the services were in reality necessary for the protection and support of Mrs. Weiss and were required and made reasonable and proper by the fault of appellant.' We agree with the trial court that recovery does not depend upon proof of fault on the husband's part. In McCurley v. Stockbridge, 62 Md. 422, Chief Judge Alvey reviewed and relied upon the English authorities in holding that attorneys could recover against a husband's estate for services rendered to a wife in a divorce action brought against him which abated by reason of his death. The authorities are divided on the point, but the rule is firmly established in Maryland. See Notes 25 A.L.R. 354 and 42 A.L.R. 315. It was noted that it is a condition of the right to recover that it be made to appear affirmatively that the suit of the wife against the husband was reasonably and justifiably instituted. Of course, in divorce proceedings, the wife is a favored suitor and she is ordinarily allowed the means of prosecuting or defending a suit for divorce without any inquiry into the merits. Gosnell v. Gosnell, 208 Md. 179, 182, 117 A.2d 861.

We are not now concerned with a divorce action, but with a proposed separation agreement, predicated upon mutual consent. Separation by consent for the prescribed period, may itself furnish a ground for divorce, regardless of fault, giving rise to a right to alimony. Code (1957) Art. 16, sec. 24; Foote v. Foote, 190 Md. 171, 57 A.2d 804. Under Code (1957) Art. 16, sec. 28, settlement agreements are not invalid as against public policy, where they do not condone any existing causes of divorce, or bargain for a fraudulent one. Frank v. Frank, 203 Md. 361, 101 A.2d 224. See also Zouck v. Zouck, 204 Md. 285, 292, 104 A.2d 573, 105...