text:
    MARION H. PAYNE v. PETER M. PAYNE
    [No. 1297,
    September Term, 1975.]

      Decided December 1, 1976.

      The cause was argued before Marvin H. Smith and John C. Eldridge, Associate Judges of the Court of Appeals and Joseph M. Mathias, Associate Judge of the Sixth Judicial Circuit, all specially assigned.

      Victor A. Houlon, with whom were Pickett, Houlon & Berman on the brief, for appellant.

      Charles M. Cockerill for appellee.
   Eldridge, J.,

delivered the opinion of the Court.

On March 31, 1975, the appellant, Marion H. Payne, filed a bill of complaint for a divorce a vinculo matrimonii from her husband on the grounds of desertion, abandonment, adultery and voluntary separation. Mrs. Payne also requested “a reasonable sum” for alimony. Her husband, Peter Payne, filed a cross bill of complaint seeking an absolute divorce on the ground of constructive desertion. Subsequently, Mr. Payne amended his original complaint to include an allegation of adultery.

The testimony at the trial was extensive and often conflicting, and upon the conclusion of the evidence the trial court made several findings of fact. The court determined that sexual relations ceased between the parties sometime between 1967 and 1969. Mrs. Payne testified that she refused sexual relations with her husband because he drank excessively, habitually stayed out until the early hours of the morning and generally did not include her in family affairs. The trial court, however, found that Mrs. Payne’s withdrawal from sexual relations with her husband was not based upon any “substantial reason,” The trial court further determined that “Mrs. Payne’s attitude towards Mr. Payne was one that was inconsistent with acceptable standards of conduct between the husband and wife and that her general description of her husband ... in the presence of others [was] demeaning ... humiliating, and ... persistent.” With respect to Mrs. Payne’s allegations of her husband’s adulterous behavior and physical abuse, the trial court found that the evidence was insufficient to sustain the accusations. The trial court determined that the parties voluntarily separated on September 30, 1973. A divorce a vinculo matrimonii was granted to Mrs. Payne on the ground of voluntary separation “only because it . . . [was] the best way to terminate this marriage.” The court, however, denied Mrs. Payne’s request for alimony.

On this appeal by Mrs. Payne from the decree, there is no challenge to the granting of the divorce on the ground of voluntary separation. The appeal attacks the decree only insofar as alimony was denied Mrs. Payne. It is claimed that the trial court committed several errors which are relevant to the question of alimony.

(1)

At the trial, Mrs. Payne contended that she was entitled to a reasonable sum for support. Mrs. Payne argued that at the age of 57 she no longer possessed employable skills nor was she financially able to regain her secretarial skills which had lapsed during the 20 years of her marriage. The chancellor rejected the argument, stating “that the husband, because the wife is the most culpable . . . , will be required to contribute nothing.” On this appeal, Mrs. Payne, in addition to challenging the trial court’s findings, also attacks the standard employed by the court in denying alimony.

In Flanagan v. Flanagan, 270 Md. 335, 311 A. 2d 407 (1973), involving one of the “no fault” grounds for an absolute divorce, the Court of Appeals indicated that fault is to be considered in an alimony determination even though the divorce is granted on a non-culpatory ground. The Court stated that when the spouse seeking alimony has been adjudged the sole contributing party to the separation and the culpable act is either adultery or abandonment, alimony should be granted only when extremely extenuating circumstances are shown. 270 Md. at 341; Flood v. Flood, 24 Md. App. 395, 330 A. 2d 715 (1975). However, if there exists “fault on both sides which cause the separation of the parties,” the chancellor must consider several factors other than the parties’ relative guilt. 270 Md. at 341-342; Flood v. Flood, supra, 24 Md. App. at 399. The several factors to be considered were enumerated in Timanus v. Timanus, 178 Md. 640, 16 A. 2d 918 (1940), subsequently repeated in Flanagan v. Flanagan, supra, 270 Md. at 339, and most recently emphasized by this court in Flood v. Flood, supra, 24 Md. App. at 399 n. 8:

“It is a general rule that a court, before determining the award of alimony, should consider the maintenance of the wife in accordance with the husband’s duty to support her suitably, together with the husband’s wealth and earning capacity. In addition to the financial circumstances of the parties, the court should also usually consider their station in life, their age and physical condition, ability to work, the length of time they lived together, the circumstances leading up to the separation, the fault which destroyed the home, and their respective responsibilities for the care and support of the children.” (178 Md. at 642.)

Although there was testimony at the trial to indicate that Mrs. Payne’s behavior in withdrawing from the marital relationship constituted constructive desertion, there was also testimony presented that Mr. Payne was engaging in adulterous behavior. Nevertheless, the marriage having disintegrated beyond the hope of reconciliation, the trial court chose to terminate the union on the ground of voluntary separation. This is not a case in which one spouse has been found by the court to be the “sole cause” of the demise of the marriage. Instead, the trial court here found Mrs. Payne’s “culpability [to be] greater than his.” The trial court’s finding was that some fault existed on the part of both of the spouses, and that, even though there was a mutuality of fault, Mrs. Payne’s behavior was the more culpable.

Nevertheless, instead of determining whether to award alimony in light of all the factors relative to that issue, the trial judge in this case appeared to limit his consideration to the respective culpability of the parties. Although the culpability of the parties is a major factor to be considered, it .is not the sole factor governing the grant or denial of alimony. As pointed out above, culpability is only one of several factors to be weighed in deciding whether to award alimony in a case such as this. The greater the degree of fault having been assigned to Mrs. Payne, however, the greater the need which she must demonstrate with respect to the factors quoted above to entitle her to the award, Flanagan v. Flanagan, supra, 270 Md. at 342.

We conclude that the trial court’s denial of alimony in this case was based on an erroneous standard. Therefore, the case must be remanded for a rehearing with respect to alimony with a re-determination based upon all of the several factors to be considered.

(2)

Mrs. Payne also contends that the trial court erred in refusing to admit into evidence a computer print-out obtained from the State Motor Vehicle Administration. If the trial court had admitted the print-out into evidence, it would have tended to indicate that Mr. Payne and his alleged girl friend shared the same address. Consequently, Mrs. Payne’s allegation against her husband of adulterous behavior may have been further substantiated and the relative guilt of the parties significantly altered.

Mrs. Payne secured certified copies of the title and registration to the automobile owned by Mr. Payne’s alleged girl friend. There is no issue with respect to these certified documents, and their admissibility is not contested. However, the trial court refused to admit into evidence a computer print-out containing the recent change in the address on the motor vehicle registration documents. The trial court seemed to be of the view that the print-out could not be part of the original certification listing the registration materials, since it was a separate document and had been requested and attached subsequently.

We disagree. The print-out was in effect an amendment to the registration documents, correcting the address appearing on the documents. Although the print-out was requested a few moments after the initial receipt of the certified registration materials, this does not necessarily preclude it from being part of the certification. The print-out was requested in the context of what essentially was one continuous transaction. The same clerk who had processed the initial request for the documents also secured the computer print-out copy and attached it to his original certification sheet, thereby including the print-out in his original certification. Under the circumstances, the computer print-out was a certified document within the scope of Maryland Code (1974), § 10-204 of the Courts and Judicial Proceedings Article. Therefore, it was error for the trial court to refuse to admit it into evidence.

(3)

Mrs. Payne next contends that the trial court erred when, over the objection of her counsel based upon the attorney-client privilege, she was required to answer whether she had been advised by her counsel not to seek employment until the divorce action had terminated. Mrs. Payne argues that, although “there were sound medical and legal reasons” underlying the advice given, the objection to the question should have been sustained because a communication of this nature by counsel to Mrs. Payne came within the purview of the attorney-client privilege.

Generally, attorney-client privilege issues arise in connection with communications made by the client to the attorney rather than those made by the attorney to the client. However, it is recognized that a communication or legal advice from an attorney to a client may be embraced by the privilege. It is sufficient for the purposes of the privilege if the communication by the attorney was made during the attorney-client relationship, related to legal matters for which the attorney’s services were retained, and was based upon information received by the attorney from the client in confidence. Burlington Industries v. Exxon Corporation, 65 F.R.D. 26, 37 (D. Md. 1974); United States v. United Shoe Machinery Corporation, 89 F. Supp. 357, 359 (D. Mass. 1950); Miller v. Anderson, 30 Conn. Sup. 501, 294 A. 2d 344 (1972); Russell v. Second Nat. Bank of Paterson, 136 N.J.L. 270, 55 A. 2d 211 (1947).

Applying these principles to the present case, the advice from Mrs. Payne’s attorney would appear to be within the privilege. It related to Mrs. Payne’s earning capacity, which was relevant to the question of alimony. And Mrs. Payne’s claim for alimony was a matter for which she had retained a lawyer, and concerning which she had obviously given him information. If the same question is asked at the hearing on remand, an objection should be sustained.

(4)

Mrs. Payne’s final contention is that the trial court erred when it sustained Mr. Payne’s right to invoke the Fifth Amendment privilege against self-incrimination with respect to questions concerning his sexual relations with unmarried women. Mrs. Payne argues that the crime of “adultery” in violation of Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 4, is committed only if the woman involved is married, and that a married man’s sexual relationship with an unmarried woman does not amount to a crime. Consequently, the argument continues, there was no danger of Mr. Payne’s incriminating himself.

At common law, adultery was defined as sexual intercourse with another man’s wife, the test being whether or not the woman was married. R. M. Perkins, Criminal Law, ch. 5, § 1, p. 377 (2d ed. 1969); Clark and Marshall, Law of Crimes § 11.04, pp. 767-769 (7th ed. 1967). Adultery, however, was not a crime at common law but was punished by the church as an ecclesiastical offense. Adultery, as defined by canon law, was a violation of the marriage vow, the test being whether or not a married person engaged in sexual relations with someone other than his or her spouse. R. M. Perkins, Criminal Law, supra, p. 377; Clark and Marshall, Law of Crimes, supra, p. 767.

Neither the Court of Appeals nor this court has ever decided whether the crime of adultery in violation of Art. 27, § 4, embraces the common law or canon law definition. For a discussion of this, see Evans v. Murff 135 F. Supp. 907, 910-911 (D. Md. 1955). Consequently, the Maryland law with respect to adultery is unclear, and a prosecution for the crime might be instituted without regard to the marital status of the woman involved.

For a witness to be entitled to invoke the Fifth Amendment privilege against self-incrimination, it is not necessary that his testimony will with certainty lead to his criminal prosecution and conviction. Instead, there must be “reasonable cause to apprehend danger . . . ,” Hoffman v. United States, 341 U. S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951). See also Commonwealth v. Carrera, 424 Pa. 551, 554, 227 A. 2d 627 (1967). A witness is entitled to invoke the privilege “where practically there is only a slight possibility of prosecution.” United States v. Miranti, 253 F. 2d 135, 139 (2d Cir. 1958). As stated by the Supreme Court in Hoffman v. United States, supra, 341U. S. at 486-487:

“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”

In that case, the Supreme Court reversed a contempt conviction of a witness who refused to answer certain questions, because “it was not ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the . . . answer[s] cannot possibly have a tendency’ to incriminate.” (Italics in original.) 341 U. S. at 488.

In light of the uncertainty concerning the scope of the crime of adultery in Maryland, it cannot be said that the answers of Mr. Payne could not “possibly have a tendency to incriminate.” Consequently, the trial court did not err in sustaining Mr. Payne’s claim of privilege.

Judgment of the Circuit Court for Prince George’s County reversed, and case remanded for proceedings consistent with this opinion.

Appellee to pay costs.

      . As provided by the Maryland Code (1957, 1973 Repl. Vol., 1976 Cum. Supp.), Art. 16, § 24, there are two no fault grounds upon which a divorce a vinculo may be granted. Art. 16, § 24, provides, in pertinent part, that a divorce may be granted for the following causes:
      . . fifthly, when the husband and wife shall have voluntarily lived separate and apart, without any cohabitation, for twelve consecutive months prior to the filing of the bill of complaint, and such separation is beyond any reasonable expectation of reconciliation; . . . seventhly, on the application of either party when the husband and wife have lived separate and apart without any cohabitation and without interruption for three years....”

      . The common law defined adultery for purposes other than a criminal prosecution. R.M. Perkins, Criminal Law, supra, p. 377.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    JACK A. SPEER et ux. v. IRVIN C. TURNER et al.
    [No. 55,
    September Term, 1976.]

      Decided December 1, 1976.

    The cause was argued before Thompson, Menchine and Melvin, JJ.

      Glenn O. Hall, Jr., for appellants.

      E. Richard McIntyre for appellees.
   Melvin, J.,

delivered the opinion of the Court.

Mr. and Mrs. Irvin Turner and Mr. and Mrs. Phillip Goodall, (appellees) instituted this equity action in the Circuit Court for Montgomery County (Shearin, J., presiding) to compel the removal of a building built by Mr. and Mrs. Jack Speer (appellants) upon the Speers’ property, allegedly in violation of restrictive covenants placed upon appellants’ property by a developer. After finding that the building violated the covenants, an injunction was issued directing that the building be razed.

I

A threshold question to be decided is whether the appellees have standing to enforce the restrictions against the appellants. The relevant facts concerning this issue are not in real dispute. By a deed dated 20 August 1968, the developer, K-S Poolesville, Inc. (developer) acquired title to approximately 197 acres of unimproved land in the town of Poolesville, Montgomery County, At the time of the acquisition a portion of the 197 acres had already been subdivided into lots, known as the Meadow Park subdivision. By a Declaration of Covenants recorded 1 October 1969 among the Land Records of Montgomery County, the developer established and imposed upon the Meadow Park lots certain restrictive covenants. Thereafter the developer subdivided into lots a portion of its unsubdivided acreage. This subdivision, known as Westerly, is immediately adjacent to the Meadow Park subdivision. The plats for Westerly were duly recorded on 18 November 1969 and by a Declaration of Covenants recorded 22 December 1969 the developer imposed upon the lots in Westerly the identical restrictive covenants it had imposed upon the Meadow Park lots on 1 October 1969.

The appellees acquired two adjacent lots in Westerly in March and April of 1971. Appellants acquired a lot in Meadow Park in March 1971. Each of the lots was improved by a single family residence. The appellees’ lots and the appellants’ lot have a common rear boundary line, that line being a division line between the Westerly and Meadow Park subdivisions.

The contracts of sale for each of the parties were prepared by the same real estate agent and the seller was described in each contract as “Westerly Homes, Seller”. Each contract contained the following provision:

“The general conditions of the Contract, the Specifications and Drawings, Westerly and/or Meadow Park Land Covenants, form the contract and they are fully a part of the contract as if heretofore attached or herein repeated”.

The restrictions placed on the two adjacent subdivisions are for the most part those usually placed upon a residential development. Each Declaration of Covenants contains the following provision:

“... Declarant does hereby establish and impose upon the above described lots but no other land not included herein, the following restrictions and covenants to be observed and enforced by Declarant, as well as by all purchasers of any of the above described lots .... (Emphasis added).
“(16) ENFORCEMENT. Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, either to restrain violation or to recover damages.”

Appellants argue that ■ these clauses evidence the developer’s intention not to permit the appellees (owners of Westerly lots) to enforce the restrictions against the appellants (owners of a Meadow Park lot), and that there is no evidence “supporting the chancellor’s finding of a general uniform plan of development encompassing the adjacent subdivisions ... thereby allowing property owners to enforce restrictive covenants inter se.” Appellants thus seem to concede that if there is evidence of a general uniform plan of development encompassing both groups of lots (those in Westerly and those in Meadow Park), then the restrictive covenants are for the joint benefit of both groups and may be enforced inter se.

In Club Manor v. Oheb Shalom Congregation, 211 Md. 465, 128 A. 2d 405 (1957), the Court of Appeals, through Chief Judge Bruñe, said at 475:

“Who may enforce a restrictive covenant is a question which depends upon intention and thus is ultimately a question of fact. Where there is a uniform plan of development and a restrictive covenant has been adopted as part of a general scheme, such a covenant may be enforced at the suit of a neighboring owner aggrieved by its breach, [citations omitted].”

In his ruling on the issue Judge Shearin said:

“It seems to be earnestly contended, by counsel for the defendants, that the language of those covenants should be so construed as to prevent the owner of a lot in Westerly from enforcing or attempting to enforce the covenants as to an owner of a lot in Meadow Park or vice versa. I think that such a construction would put not merely a strain upon the language and the obvious intent of the covenants but would fly in the face of rational inferences to be drawn from all of the facts before this Court.
“In short, the Court believes that the evidence justifies the conclusion that there was a general plan or scheme of development embodied in these two differently named portions of the same tract of land, and that, as testified to, the exhibition by the sales agent on behalf of the sellers of a scale model showing the overall development embracing not only Westerly, but Meadow Park together with the stated purposes of these covenants which, for the purposes of the record, I will read, in part, from Page 1 of the declarations, respectively, on which appears the following language:
“For the purpose of:
“FIRST: Protecting purchasers of any of the above-described lots from depreciation of the value thereof and to assure them of uniformity in the development of said described lots; and, “SECOND: Facilitating the sale by Declarant, or its successors and assigns, of said lots by reason of its ability to so assure said purchasers of such uniformity and protection against depreciation; and,
“THIRD: To make certain that said restrictions shall apply uniformly to all the said described lots to mutual advantage of said respective Declarant and all those who may in the future acquire title through said Declarant.' ”

Our review of the evidence and the applicable law convinces us that Judge Shearin’s finding that the restrictions placed on both groups of adjacent lots by the same developer were intended for the benefit of all lots in both subdivisions was not clearly erroneous. Md. Rule 1086. In the circumstance, we think the phrase relied on by appellants, “but no other land not included herein”, could only refer to the balance of the 197 acres that the developer had not subdivided into lots.

Appellants further argue that the appellee, Phillip Goodall, is not a proper party because “he testified that as of the time of the suit, i.e., June 1975, he was no longer title owner of property in the Westerly subdivision”. We have searched the Record Extract filed with appellants’ brief and find no such testimony, nor are we referred to any part of the record containing such testimony. We also find nothing in the record to indicate that the issue of Goodall’s being an improper party was raised or decided below. We therefore disregard the argument. Md. Rules 1028 b and 1085. We note, however, that in any event the Turners are proper parties, and even if we were to decide (which we do not) that Mr. Goodall is not a proper party, the outcome of the case would not be affected.

II

The chancellor found that the building erected by appellants on their lot violated the following covenants and restrictions, numbered as they appear in the Declaration of Covenants:

“(1) LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars. (Emphasis supplied)
(3) BUILDING LOCATION.
(b) No building shall be located nearer than 10 feet to an interior lot line. No dwelling shall be located on any interior lot nearer than 10 feet to the rear lot line.
(10) ARCHITECTURAL CONTROL. No building shall be erected, placed, or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the Architectural Control Committee as to quality of workmanship and materials, harmony of external design and color with existing structures, and as to location with respect to topography and finish grade elevation. No building shall be repainted a color different than original without approval. No fence or wall shall be erected, placed or altered on any lot nearer to any street than the 'minimum building setback line unless similarly approved. Approval shall be as provided in paragraph 14. (Emphasis added.)
(14) PROCEDURE. The committee’s approval or disapproval as required in these covenants shall be in writing. In the event the committee, or its designated representative, fails to approve or disapprove within 30 days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.” (Emphasis added.)
(a)
With respect to paragraph (1), the chancellor found that:
“ .. . after having heard all the evidence and having reviewed the photographs, et cetera, bearing on the type of structure and its intended use that was built here, concludes that what was built was not within a fair definition of the term ‘two-car garage’.
“The undisputed testimony is that, in this building 20 by 40 feet in dimensions, four normal size cars coüld be parked, if, of course, the entrance thereto were on the long side. An average car does not exceed 20 feet in length nor ten feet in width. So that if one side of this elongated building, twice as long as its width, were utilized as access, the Court has no difficulty in finding it would have been, assuming it were altered, to provide adequately to garage four cars.
“The building, while otherwise described as a barn, is actually used, in part, for the accommodation of two motor vehicles. Since it has an entrance for motor vehicles at one end, it may well be, that being so designed, it can accommodate only two vehicles end-to-end by the length of the structure. But that does not gainsay the fact that there is substantial additional space far beyond what is required, and I would say about one hundred percent beyond what is on the ground floor for the accommodation of two automobiles, the two motor vehicles. Furthermore, the second story of this building is some eight hundred square-feet in size as is the ground floor and, certainly, not necessary for the accommodation of the motor vehicles on the ground floor.
“To label an elephant with the appellation of a mouse doesn’t alter the characteristics of the elephant. You can call it anything you wish, but it is still an elephant. You may call any building, in which two cars happen to be parked, a two-car garage, but that doesn’t make it a two-car garage in fact and in law.
“Accordingly, the Court finds as a matter of fact that what was built here is not a two-car garage, but something far more bulky, higher, and roughly comparable to, in size and dimensions, the single-family dwellings otherwise permitted on the lots.”

Having reviewed the record, we cannot say that the chancellor was clearly erroneous in determining that the appellants’ building was not “a private garage for not more than two cars” within the meaning of the restriction. Md. Rule 1086.

In connection with this issue, we find no error in the chancellor’s refusal to permit an architect, offered by appellants as an expert witness, to state the “architectural requirements which are specified to qualify a structure to be a garage, for a two car garage”. The test of admissibility of expert opinion testimony is whether the trier of fact can receive appreciable help from the witness on the subject. Harper v. Higgs, 225 Md. 24, 169 A. 2d 661 (1961). Here, Judge Shearin concluded that the expert’s testimony concerning “the architectural requirements ... for a two-car garage” would not be particularly helpful to him in deciding the issue of whether the building in question was a “private garage for not more than two cars” within the meaning of the Declaration of Covenants. In the circumstances of the case, we think it was within the sound discretion of the judge to disallow the answer. Moreover, as no proffer was made as to what the answer would be, we perceive no prejudice to the appellants.

(b)

Likewise, we think the chancellor’s factual finding that the building was placed within “10 feet of an interior lot line” was not clearly erroneous. Md. Rule 1086.

(c)

With respect to paragraphs (10) and (14) of the Declaration of Covenants, it is conceded by appellants that they neither sought nor were given approval of the Architectural Control Committee before commencement of construction of the offending building. Appellants argue, however, that the building was “substantially” completed prior to commencement of the suit “to enjoin the construction” and therefore under paragraph (14) of the Declaration of Covenants no approval was needed and the appellees are therefore barred from any injunctive relief. Judge Shearin agreed that the building had been “substantially completed”, as that term is used “in the field of contracts”, but he “expressly” found the “doctrine of substantial completion or substantial compliance ... inapplicable here”, and that the building was not “substantially completed... for the purposes of this suit”.

For purposes of this appeal, we deem it unnecessary to decide whether the appellees’ suit was filed before the building was completed — “substantially” or otherwise; for even if the suit were filed after completion, we think the appellants’ contention that because of the late filing they are ipso facto immune from any proceedings to enforce any of the covenants is untenable. We construe the rather strange provision in paragraph (14) that “if no suit to enjoin the construction has been commenced prior to completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with” [emphasis added], to mean that in the absence of a timely suit seeking an injunction only those covenants “related” to matters that the Architectural Control Committee has the power to control are deemed to have been complied with — not all the covenants and restrictions set forth in the Declaration of Covenants. The “related covenants” are those set forth in paragraph (10) and are: 1) The requirement, as to buildings, to obtain the Committee’s approval “as to quality of workmanship and materials, harmony of external design and color with existing structures, and as to location with respect to topography and finish grade elevation”; 2) The requirement to obtain the Committee’s approval before a building is “repainted” a different color; 3) The requirement to obtain the Committee’s approval before placing or altering a fence or wall “nearer to any street than the minimum building setback line”. Paragraph (14) further requires the Committee’s approval to be in writing.

Obviously, the Committee has no authority to approve a violation of paragraphs (1) or (3) (b) of the Declaration of Covenants relating to “Land Use and Building Type” and “Building Location”. These covenants are not “related covenants” within the meaning of paragraph (14). Thus, they are not “deemed to have been fully complied with” simply because either the Committee may have failed to act or because a building may have been “erected, placed or altered” before a “suit to enjoin the construction has been commenced”. Nor would paragraphs (1) and (3) (b) be “deemed” to be complied with even if the Committee had given its written approval concerning the aboye mentioned “related covenants” contained in paragraphs (10).

It is evident that Judge Shearin’s decision to require the removal of the building was based primarily on the violations, of paragraphs (1) and (3) (b) and not upon appellants’ failure to obtain the Committee’s approval. The trial of the case below took place on 13 November 1975 and November 24, 1975. During the trial on November 24, 1975, appellants asked for a one day continuance so as to obtain the testimony of two members (a majority) of the Architectural Control Committee. Their proffered testimony was that “having read and reviewed the construction plans and specifications on Mr. Speer’s lot [submitted to them on 17 November 1975]” they “have ápproved said structure and the construction thereof as to quality of workmanship and materials, harmony of external design and color with existing structures and as to location with respect to topography and finished grade elevation in compliance with the covenant”.

In denying the continuance, Judge Shearin did so because of noncompliance with Md. Rule 527 and appellants’ belated efforts to obtain the witnesses' presence and because “... most importantly of all, the probative value of the evidence, which you proffered you would give, is so slight that, in the Court’s view, it does not justify exercising its discretion even if the provisions of Rule 527 had been granted”. (Emphasis added.) Within the context of the primary issue to be decided in this case (i.e., the propriety of the order to remove the building) we think Judge Shearin was correct in his view concerning the materiality of the proffered evidence and that he did not abuse his discretion in denying the motion for continuance.

111

Appellants argue that, assuming violations of the Declaration of Covenants, “ ... if Plaintiffs are entitled to any equitable relief, it would more properly be an injunctive order reforming the height of the garage rather than an order mandating its complete demolition”. We agree with this argument and state our reasons.

The appellees first learned of appellants’ plan for the building in mid-April of 1974 when Mr. Speer was seen staking out foundation lines. Shortly thereafter and prior to commencement of construction, appellees met with the Speers to protest. On 9 May 1974, a compromise was reached. As originally planned by Mr. Speer, the building was to be 20' x 40' with a height of 20'. It was to be used as a garage, workshop and hobby shop. At the May 9th meeting between the parties it was agreed by the appellees that Mr. Speer “could put this building up as long as the roof was not more than 15V2 feet high and as long as he did certain shielding of plantings and fencings”. At the time this agreement was reached appellees “were aware of the covenants and the possible violation of them” by the proposed building. The agreement was reduced to a written memorandum at the meeting and signed by Mr. Speer. The entire contents of the memorandum reads:

“ The total height from floor to the peak of the roof will not exceed 15 and one-half feet. Either siding or a fence (approx. 8 feet in height) will be provided to cover the cinder block exposed to, the rear of the building and one side visual from the Turner’s patio”.

Construction of the building proceeded thereafter without further protest until Saturday 15 June 1974. On that date roof joists were installed and it then became apparent that the finished roof height would exceed I5V2', thereby violating the agreement. (When completed, the building was approximately 24 feet in height). On Tuesday 18 June 1974 the instant suit was filed.

Under the circumstances, we think the doctrines of waiver and equitable estoppel foreclose the appellee from complaining of the building, except as to its height and the cinder block appearance on two sides. The record is clear that after the May 9th agreement, the appellees acquiesced in the building’s construction taking place before their very eyes for a period of several weeks. It was only when it became apparent to them that it would exceed the agreed upon height of 15V2 feet that they decided to again complain to the Speers — this time in the form of a suit against them seeking the removal of the entire building as being violative of the Declaration of Covenants.

In Gould v. Transamerican, 224 Md. 285, 167 A. 2d 905 (1961) the Court of Appeals said, at 295:

“Waiver is closely inter-related and intertwined with estoppel. The distinction between them most frequently adverted to is that waiver rests upon the intention of the party, while estoppel rests upon a detrimental change of position induced by the acts or conduct of the party estopped. However, when an implied waiver is involved, the distinction is close, and sometimes the doctrines merge into each other with almost imperceptible gradations, so that it is difficult to determine the exact point where one doctrine ends and the other begins. 31 C.J.S., Estoppel, ¶ 61 (b). Many decisions (although perhaps loosely) use the terms as interchangeable, or convertible. It has been held that the same conduct may constitute both an implied waiver and an estoppel, Sentinel Fire Ins. v. McRoberts, 179 S. E. 256 (Ga.); that a waiver may be based on, or arise from, an estoppel, Motz v. Root, 4 N. E. 2d 990 (Oh.), Kaller v. Spady, 24 P. 2d 351 (Or.); and that a waiver, when established may amount to, or operate as, an estoppel, or, stated just a little differently, there may be an estoppel by waiver. Lord Const. Co. v. Edison Portland Cement Co., 138 N. E. 39 (N. Y.), August v. Collins, 214 N. W. 951 (Mich.)”. (Emphasis added)

In civil cases, waiver has been held to mean “the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from circumstances”. See Gould, supra, at 294; 3 Williston, Contracts (Rev. Ed.), p. 1961; 92 C.J.S. Waiver.

Applying the above principles to the case before us, we hold that appellees’ acceptance of Mr. Speer’s signed memorandum coupled with their acquiescence in the construction of the building amounted to a waiver by them of their rights under the Declaration of Covenants concerning the location, size and external appearance of the building. The limits of the waiver, however, are defined by the agreement, so that there was no waiver as to that portion of the building extending higher than 15V2 feet and there was no waiver concerning external appearance of the cinder block “exposed to the rear of the building and one side visual from the Turner’s patio”. Within the limits of the waiver so established, the appellees are therefore estopped from complaining of the building. It follows that the relief granted them by the court extended beyond that to which they were entitled. Pursuant to Md. Rule 1070, we shall therefore remand the case with directions that the decree be modified to provide that the appellants be required to reduce the total height of the building to not more than 15V2 feet. We note that the plans and specifications referred to in the proffered testimony of the Architectural Control Committee approving the building call for “Siding — Same as House”. We therefore infer that the appellants have elected this alternative method of screening the cinder block on the rear wall and side wall visible from the Turners’ patio. There is no indication in the record before us whether the method selected has been carried out; if not, the modified decree should so provide. We shall leave to the sound discretion of the trial court such time limitations as he deems appropriate under the circumstances.

Case remanded for modification of decree as provided in this opinion.

Costs to be paid one-half by appellants and one-half by appellees.


author: Powers, J.,

text:
    IN RE APPEAL NO. 101, September Term, 1976 from the District Court of Montgomery County, sitting as a Juvenile Court
    [No. 101,
    September Term, 1976.]

      Decided December 1, 1976.

    The cause was argued before Thompson, Powers and Melvin, JJ.

      William J. Chen, Jr., for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Tom Cooke, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

In this case, here styled “In re Appeal No. 101 (76) from the District Court of Montgomery County, sitting as a Juvenile Court”, Maryland Rule 1097, we are called upon by the appellant to review the proceedings against him upon a petition which represented to the court that he was a delinquent child. The petition, incorporating by reference an attached count, presented that two other named juveniles and the appellant, on 31 August 1975, unlawfully committed an assault and battery upon a boy whose name was Smith. We shall refer to the other two jointly charged juveniles as LS and WJ.

The petition was filed on 30 October 1975. All three boys appeared on 5 November before a Commissioner of the District Court in Montgomery County, for the purpose of what the Commissioner explained was not a trial, but a preliminary inquiry. He gave each boy a copy of the petition against him, and advised that, “* * * all three of you have formally been charged by the State of Maryland, through the State’s Attorney’s office, with having committed a certain act or certain acts that are defined under the law as a Juvenile Delinquent Act.”

Each boy was told, “* * * you have a right to be represented in this matter by an attorney. If you and your parents cannot afford an attorney one will be appointed to represent you.” Each answered that he understood that he had that right. LS had an attorney, who was present at the inquiry. WJ said he would like to have a public defender. Appellant initially responded that he did not know if he intended to be represented, but appellant’s father told the Commissioner, “He will, yes, sir.” The Commissioner checked a block on a form where the words, “Will engage private counsel” appear.

On 5 December 1975 the adjudicatory hearing was held before a judge of the District Court. Appellant was not represented by counsel. The court adjudicated each of the three boys to be delinquent. After a disposition order was entered as to appellant on 5 January 1976, this appeal was noted.

Errors asserted are:

1. Acceptance of appellant’s waiver of representation by legal counsel at the adjudicatory and disposition hearings without making the required inquiry.

2. Denial of the right of confrontation and cross examination by permitting a police officer to testify to statements made to him by the non-testifying co-respondents.

3. The legally admissible evidence was not sufficient to permit an adjudication of delinquency.

Waiver of Right to Counsel

At the outset of the adjudicatory hearing the judge noted that respondent LS was represented by counsel. He then spoke to the others. The transcript, with names deleted, and with a correction agreed to by stipulation, reads:

“THE COURT: [WJ and his father], appearing before the commissioner you were advised of the charges, and the hearing date and you were referred to the office of the Public Defender. Now, I note that you are here without an attorney which of course, as was explained to you, is not required, but your son does have the right to an attorney.
So-
[FATHER OF WJ]: He said he didn’t want one.
THE COURT: Pardon me?
[FATHER OF WJ]: He said he didn’t want one.
THE COURT: He decided he did not want one.
[FATHER OF WJ]: Yes, sir.
THE COURT: You understand you have the right to one, now?
[WJ]: Yes, sir.
THE COURT: You want to go ahead on the charges today without an attorney?
[WJ]: Yes, sir.
THE COURT: And how about [appellant]?
[FATHER OF APPELLANT]: The same.
[APPELLANT]: Yes, sir.
THE COURT: Advice advised.
And parents do you agree with this? Do you understand your son has the right to an attorney as I believe was discussed with the commissioner.
You indicated, according to his notes, you would engage private counsel. Have you since changed your mind about this?
[FATHER OF APPELLANT]: We did consult private counsel. Although he did not say we did not need an attorney, he did not feel it was all that necessary.
THE COURT: So you’re willing, as your son apparently indicates, you’re willing to go ahead without a lawyer today?
[FATHER OF APPELLANT]: Exactly.
THE COURT: Thank you.”

Since In Re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L.Ed.2d 527 (1967), it has been clear that the Fourteenth Amendment due process clause requires the States to extend the right to counsel to juveniles during delinquency proceedings. In that case Justice Fortas said for the Supreme Court, at 36:

“A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’ ”

The Court expressed its ruling on this phase of the case by saying, at 41:

“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.”

Maryland’s statutory recognition of that due process right is found in Code, Courts Art., § 3-821 (1976 Cum. Supp.), a part of Subtitle 8, Juvenile Causes. The section provides:

“A party is entitled to the assistance of counsel at every stage of any proceeding under this subtitle.”

What a party is entitled to in our judicial system may ordinarily be waived, but the waiver must be the result of an intentional relinquishment or abandonment of a fully known right. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

Procedural safeguards to assure that a waiver of representation in a juvenile proceeding is a valid waiver are set out in detail in the Maryland Rules. It must be well known to all members of the bar that these Rules are not mere guides, but must be followed. Rule 906 b. 1. provides:

“If, after the filing of a petition, a respondent, his parents, guardian or custodian, indicates a desire or inclination to waive representation, before permitting the waiver the court shall determine, after appropriate questioning in open court and on the record, that the party fully comprehends: (i) the nature of the charges and the proceedings, the range of allowable dispositions, and that counsel may be of assistance to him in determining whether there may be defenses to the allegations of the juvenile petition, or circumstances in mitigation thereof; (ii) that'the right to counsel includes the right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel; (iii) that even if the party intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material which could effect the disposition; and (iv) that among the party’s rights at any hearing are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.”

The only pertinent information developed by questioning in open court and on the record in this case was that the appellant’s father understood that his son had the right to an attorney, and that he was willing to go ahead without a lawyer. The judge made no determination that the parties fully comprehended anything beyond what we have just said.

This Court, speaking through Chief Judge Orth, in an appeal from an adjudication of juvenile delinquency, In Re Appeal No. 544, Term 1974, 25 Md. App. 26, 332 A. 2d 680, (cert. granted, later dismissed as improvidently granted) (1975), applied by analogy the waiver of counsel provision of Maryland Rule 719, applicable in criminal cases. We noted, at 39:

“The Rule implements the constitutional mandates enunciated in Gideon v. Wainwright, 372 U. S. 335; Johnson v. Zerbst, 304 U. S. 458, and Carnley v. Cochran, 369 U. S. 506. It has been consistently held that the requirements of the Rule are mandatory, and that compliance with them is required irrespective of the type of plea entered, or the lack of an affirmative showing of prejudice to the accused. Manning v. State, 237 Md. 349; Taylor v. State, 20 Md. App. 404; State v. Diggs, 24 Md. App. 681.”

We found, on the record before us in that case, that the court should not have permitted the waiver of representation. We held that, due to lack of counsel, the waivers and admissions in that case were invalid and ineffective and the adjudicatory hearing was void.

The same force is given to Rule 719 in criminal cases. The Court of Appeals said in State v. Renshaw, 276 Md. 259, 347 A. 2d 219 (1975), at 267-68:

“The record must show that the defendant is competent to waive the right to counsel, and that he knowingly and intelligently has done so after being made aware of the advantages and disadvantages of self-representation. * * * Where the accused cannot waive the right to counsel, or has not effectively done so, the court must take steps to insure that the accused is represented by counsel even if he professes his unwillingness to have a lawyer.”

We cannot agree with the State’s contention that the record in the present case shows compliance in substance. The Rule is composed of several subsections, each distinct from the other. Before the court may accept a juvenile’s waiver of counsel, it must satisfy each mandate. Anything less will render the waiver void as unknowingly and unintelligently given. Compliance with the Rule does not require that the court recite the full litany in the words of the Rule. Explanation, to assure full comprehension, is more important than recital. However the result is achieved,^the court must determine that the juvenile fully comprehends each of the rights and consequences delineated in the Rule. Renshaw v. State, 25 Md. App. 270, 274, 333 A. 2d 363 (1975).

Lack of counsel, a right not effectively waived in this case, requires reversal of the adjudication of delinquency.

The Right of Confrontation

Appellant’s contention that he was denied his constitutional right to confront and to cross examine the witnesses against him is well taken. If it was preserved for appeal, that issue alone would require reversal. There was, in the testimony of the police officer, a glaring violation of the constitutional right of confrontation and cross examination, as explained in Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968).

At the adjudicatory hearing three witnesses testified. They were the victim, Smith; a Montgomery County police officer, Steven Lansing; and the appellant. Smith testified that he and “four other guys” decided to go for a ride. The others were named as Wayne Ryler, over 18, and the three juveniles. They went in a pick-up truck, driven by Ryler, to the Patuxent River, near Ashton. Smith and the appellant rode in the back of the truck, and they were talking. The other three were in the front. Smith didn’t know what they were doing.

When the group reached the river LS asked Smith if he wanted to go swimming. Smith said, “No”, and LS pushed him in the water. Smith came out, and removed some of his belongings. LS told him to go in again. He did. The appellant and WJ were sitting on a ledge, some distance away. Only Ryler and LS told Smith to go in the water, or pushed him in. Then Ryler and LS told Smith they wanted him to dive into the water. They took him along a trail to a rock ledge, about 15 feet above the water, and told him to dive. Appellant was 20 or 30 feet away, out of sight. Smith dived several times, “because [he] was asked to”, and thought that if he didn’t, he would be pushed. Smith testified that the appellant several times asked Ryler not to do it any more, and said, “let’s go home”.

After Smith dived into the water off the ledge several times, the others left. Smith rested for awhile, then walked to a nearby house. The people there called the police.

Officer Lansing testified that he investigated the complaint. He talked to Smith, and later, to the other boys. Regarding LS the officer said:

“He stated that he was involved in the incident, that it was preplanned by all of them to take Mr. Smith out there, * * *. He did push him, he admitted pushing him in off the lower rocks (indiscernible) water and then he further stated that he was also involved in physically picking up Mr. Smith along with Mr. Ryler and throwing him off of the upper ledge.
Q (By the State’s Attorney) Now when he indicated to you that there had been a plan beforehand, did he indicate who had been parties to that plan?
A He just said all of them.
Q And you took that to mean what?
A All four of the subjects.”

The officer testified that he talked to WJ, who told him, “* * * that he disliked Mr. Smith and they planned to do this to teach him a lesson.”

Later, speaking of his questioning of LS the officer said, “My question was, I asked him if it was planned and he said yes.”

Both LS and WJ chose to remain silent. Neither offered any evidence. Appellant testified. He said he knew nothing of any planning and pointed out that he and Smith rode in the back of the truck, while the other three were in the cab. He said he realized what was happening only after Smith had been pushed in the first time. Later, both he and WJ protested, but Ryler gave them the choice of going swimming or being quiet. When Ryler said he’d like to see Smith dive in ten times, WJ and appellant tried to get them to decrease it to five. It is not clear what success they had, except for Smith’s own statement that he dived several times.

In announcing the adjudication of delinquency as to all three of the juveniles, the court said:

“So the Court will find as to [LS], there was an assault and find him delinquent. As to [WJ] the Court will make a similar finding. With the State pointing out this was a preplanned thing. This wasn’t something that just came up [.] [A]s to [appellant], although possibly less involved, the Court is forced to find that he also participated in assault and find him delinquent as well. I think that there was a point that he and possibly, maybe to some lesser extent, [WJ], would have liked to have forgotten the whole thing and called it off and I can understand that maybe if Ryler and possibly [LS], but in any event Ryler was a threat, and I can understand why they didn’t intercede. I don’t think there’s any requirement in the law that you have to put your own life in jeopardy to protect another. Although it may be commendable, it’s still not a requirement. I would think the point is that it shouldn’t have started in the first place and I think all the boys participated in the event at the beginning and it’s something they should never have taken part in.”

In the case entitled In Re Appeal No. 977, 22 Md. App. 511, 323 A. 2d 663 (1974), we said, at 516:

“In the present case, of course, we are dealing with a juvenile delinquency adjudicatory hearing, and not a criminal trial. In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L.Ed.2d 527 (1967), however, is completely dispositive. In applying various constitutional protections to the ‘quasi-criminal’ proceedings in the adjudication of delinquency, the Supreme Court specifically included:
1. Notice of charges;
2. Right to counsel;
3. Right to confrontation and cross-examination; and
4. The privilege against compulsory self-incrimination.
On cross-examination, the Court was very explicit, at 387 U. S. 57:
‘We now hold that, absent a valid confession, a determination of delinquency and an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination in accordance with our law and constitutional requirements.’
The applicability to juvenile delinquency adjudicatory hearings of the Sixth Amendment confrontation clause generally and the Bruton doctrine specifically cannot be doubted. We hold that they do apply.
“It is, furthermore, clear in the instant case that none of the recognized exceptions to the Bruton doctrine bar its utilization here.”

Appellant vigorously argues the Bruton error — the State answers that there was no objection to the officer’s testimony relating the statements of the non-testifying co-respondents, the issue was not tried and decided below, and was not preserved for appeal. The State argues alternatively that the statements were neutral — that they did not explicitly inculpate appellant as a participant in the plan — that it was only the officer’s interpretation that the planning was by all four. Finally, the State contends that if there was error in admitting the evidence, the error was harmless beyond a reasonable doubt.

It is true that there was no objection to the testimony, and the issue was not tried and decided below. We shall not decide the issue here. It is sufficient to point to the evidence which would have been excluded upon objection, to illustrate the devastating effect of the lack of counsel.

Sufficiency of the Evidence

The test of the sufficiency of the evidence to be applied in any delinquency adjudication is whether the evidence, adduced either directly or by rational ir/erence, enabled the trier of fact to be convinced beyond a re .sonable doubt that the juvenile was a delinquent child. In Re Appeal No. 504, Term 1974, 24 Md. App. 715, 723, 332 A. 2d 698 (1975).

We said in In Re Appeal No. 544, Term, 1974, supra, at 40:

“To prove that appellant was a delinquent child, the State’s Attorney had to adduce evidence which proved beyond a reasonable doubt (1) that an act had been committed which would be a crime if committed by a person who is not a child, that is the corpus delicti; (2) that appellant committed it, that is his criminal agency; and (3) that appellant required supervision, treatment or rehabilitation.”

With respect to the test of sufficiency of the evidence, we said in In Re Appeal No. 504, Term 1974, supra, at 723:

“In ascertaining whether this test was met we must do so within the strictures of Rule 1086 because the action was tried below without a jury. We may not set aside the judgment of the juvenile judge on the evidence unless he was clearly wrong, and in considering whether he was, the Rule requires that we give due regard to his opportunity to judge the credibility of the witnesses.”

The “witnesses” whose “testimony” was the sole basis for the judge’s finding, at least as to the appellant, that the assault upon Smith was preplanned, were not in fact witnesses, and did not testify, and the court had no opportunity to judge their credibility. It seems quite clear to us from the comments of the judge in announcing his findings of delinquency, that as to LS the evidence showed a direct and active assault and battery, and that as to WJ and the appellant, the adjudication was made because the judge found that “this was a preplanned thing”.

Because the vidence of the police officer was, at best, uncertain whether the appellant participated in the preplanning; beca !se appellant was with Smith, and both were separated fr< rn the other three during the ride to the river; and because we cannot ignore the fact that in a fair and just hearing, with counsel, the officer’s testimony would not have been admitted against the appellant, we hold that as to the appellant that finding was clearly erroneous. The credible evidence was not sufficient to enable the trier of the facts to be convinced beyond a reasonable doubt of the appellant’s criminal agency.

Judgment reversed.

Costs to be paid by Montgomery County.

      . It appears that Rule 906 b. 1., in effect at the time of the proceedings in the present case, was adopted after our ruling in In Re Appeal No. 544, Term 1974.

      . The Court of Appeals affirmed the judgment of this Court, Renshaw v. State, 25 Md. App. 270, 333 A. 2d 363 (1975), which reversed the conviction below, but did so for a different reason. What we treated as an ineffective attempt to waive counsel, invalidly accepted by the trial court, the Court of Appeals held was no waiver at all, but was instead a denial of the constitutional right to counsel.

      . Curiously enough, the probation officer who made the pre-disposition investigation for the court placed blame upon the appellant, not for what he did, but for what he failed to do. She testified: “Based on the information I’ve received, he was more or less a passive participator in that he was present when the event occurred, but he did not plan the event, as the others involved did. However, he did not make any active effort to my way of thinking to intercede on his friend’s behalf.”


author: Moore, J.,

text:
    THE RIDGE LUMBER COMPANY v. OVERMONT DEVELOPMENT et al.
    [No. 66,
    September Term, 1976.]

      Decided December 2, 1976.

    The cause was argued before Powers, Davidson and Moore, JJ.

      William A. Hahn, Jr., for appellant.

      Harry S. Shapiro and Philip V. Tamburello, with whom was J. Carroll Holzer on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

The question here presented is whether appellant, The Ridge Lumber Company, as judgment creditor, could legally reach funds of Overmont Development, a judgment debtor, deposited with Baltimore County, Maryland, by laying an attachment in the hands of Baltimore County, as garnishee.

The Ridge Lumber Company obtained a judgment in the amount of $2,762.76, plus interest and costs, against Overmont Development on April 2, 1975 in the Circuit Court for Howard County. To collect its judgment, Ridge Lumber filed certified copies of the docket entries from Howard ¡County in the Circuit Court for Baltimore County. It thereupon obtained an Attachment on Judgment and laid the same in the hands of Baltimore County, Maryland, as garnishee. The County moved to quash the attach and the motion was granted after a hearing before the Honorable John Grason Turnbull. From the order granting the motion, this appeal was taken.

The appellant urges that we “officially abolish and lay to rest the antiquated principle that an attachment on judgment cannot be laid in the hands of a municipality as a garnishee.” We decline and shall affirm.

Beginning with Baltimore v. Root, 8 Md. 95 (1855), the Court of Appeals has repeatedly held that governmental officers and subdivisions of the State are exempt from attachment proceedings where the money sought to be attached is held by the garnishee in its official capacity. Hughes v. Svboda, 168 Md. 440, 178 A. 108 (1935); Dale v. Brumbly, 98 Md. 468, 56 A. 807 (1904); Wilson v. Ridgely, 46 Md. 235 (1877); see Mayor of Rockville v. Randolph, 267 Md. 56, 296 A. 2d 574 (1972). In Root, the judgment creditor sought to garnish the wages of a public employee, a police officer, held by the City of Baltimore. Writing for the court, Judge Eccleston set forth the rationale for the rule:

“ Tlreat public inconvenience would ensue if money could be thus arrested in the hands pf officers, and they be made liable to all the delay, embarrassment and trouble that would ensue from being stopped in the routine of their business, compelled to appear in court, employ counsel, and answer interrogatories, as well as take care that the proceedings are regularly carried on, and bail to return duly given. If a precedent of this kind were set there seems no reason why the State or county treasurer, or other fiscal officers of the commonwealth, or of municipal bodies, may not be subjected to the levying of attachments^ which has never been attempted nor supposed to come within the attachment law. We do not, therefore, think this is such a debt as is contemplated by that law.’ ” 8 Md. at 101, quoting Bulkley v. Eckert, 3 Barr. 368.

The policy considerations that prohibit interference with the performance of public functions by the remedy of garnishment extend to situations in which a county is the prospective garnishee, Wilson v. Ridgely, supra, and, as well, where a private citizen, rather than a governmental employee, is the judgment debtor. Hughes v. Svboda, supra. In Wilson, where the surplus proceeds of the land of the debtor, sold for non-payment of taxes, was held not liable to attachment in the hands of the county treasurer, the Court stated:

“Though the provisions of the attachment laws of this State are very broad, we cannot believe that they were ever intended to authorize attachments to be laid upon funds in the hands of State or municipal officers as such, and thereby impose upon them and the public service such annoyances, inconveniences and interruptions as are described [in Bulkey v. Eckert, supra].” 46 Md. at 248.

And in Hughes v. Svboda, supra, the same principles were held to govern in quashing an attachment seeking to reach cash exceeding $400. which the judgment debtor, an inmate of the Maryland House of Correction, had on his person at the time of his incarceration.

As recently as 1972, in Mayor of Rockville v. Randolph, supra, where the authority of the trial court to order the City of Rockville to deduct support paytments from the salary of a municipal employee after a “Paternity. Proceeding,” pursuant to Code (1973 Repl. Vol.), Art. 16, §§ 66A-66P, was sustained, the Court of Appeals made it plain that the Root principles retain their original force: “It must not be supposed that we have attenuated Root or the cases which followed it.” 267 Md. at 63-4, 296 A. 2d at 577.

Maryland is thus with the majority of the states in its position that a municipality cannot be a garnishee. In 17 E. McQuillin, The Law of Municipal Corporations § 49.86, at 386 (3rd ed. 1967), it is stated:

“. .. [T]he weight of authority favors the view that municipal corporations and their officers having money or property in their hands to which other persons are entitled are not liable to the creditors of such persons on attachment or garnishment process unless made so by statute or charter.”

Appellant, in its brief, assails the majority rule as “antiquated” and Maryland’s Root doctrine as “ancient.” It is argued that, “The law must develop to meet needs and conditions of today in contrast to the needs and conditions as they existed in 1855.” The underlying basis for the rule is, of course, the doctrine of sovereign immunity. To the extent that the latter is in any respect to be abrogated or modified, in the light of changing policies or conditions, the proper authority to alter it is the legislature.

We should not be understood as expressing any view as to whether or not the Maryland rule should be changed. We do observe that should any such change be considered, matters of policy peculiarly affecting governmental garnishees would dictate careful study of, and perhaps appropriate changes to, the Maryland Rules of Procedure (Subtitles F and G) relating to attachments.

Order affirmed; costs to be paid by appellant.

      . For the most recent explication of Maryland law on the doctrine, see American Structures. Inc. v. Mayor and City Council of Baltimore. 278 Md. 356, 364 A. 2d 55 (1976). See also Godwin v. County Commissioners of St. Mary’s County, 256 Md. 326. 260 A. 2d 295 (1970); Board of Trustees of Howard Community College v. Ruff, Inc., 278 Md. 580 (1976).

      . As the opinion of Judge Singley in the American Structures case points out, the most recent legislative enactment in this area is Chapter 450 of the Laws of Maryland, 1976, effective July 1,1976, which provides that in the absence of a contrary provision, neither the State, its officers, departments, agencies, boards and commissions, nor any municipal corporation, or unit of municipal government, nor any county or unit of county government may raise the defense of sovereign immunity in an action based on a written contract brought within one year after the claim arose or the contract was performed, whichever is later.

      . We refer, for example, to Rule G56 relating to the service of interrogatories upon a garnishee which provides for judgment against the garnishee for failure to answer.


text:
    LEONARD J. KERPELMAN v. FRANK BARRASH
    [No. 105,
    September Term, 1976.]

      Decided December 2, 1976.

    The cause was argued before Gilbert, C. J., and Melvin and Liss, JJ.

      Leonard J. Kerpelman, in proper person, for appellant.

      D. Christopher Ohly, with whom was Joseph S. Kaufman on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

In March 1972, the appellant (plaintiff below), Leonard J. Kerpelman, Esquire, an attorney at law, represented Lily F. Barrash in a suit for separate maintenance that she brought against her husband, Frank M. Barrash, the appellee (defendant below) in the instant proceedings. In the suit she also asked for an allowance of counsel fees. The husband countered with a cross-bill in which he sought a divorce a mensa et thoro grounded upon allegations that the wife “did on or about February 29, 1972, and without any just cause or reason, abandon and desert . ..” him. On June 22, 1972, the case came on for trial on the merits. On June 23, 1972, the chancellor passed a decree granting the husband a divorce a mensa et thoro and dismissing the wife’s bill of complaint. On 24 July 1972, the wife filed a petition seeking a rehearing under Rule 690 and revision of judgment under Rule 625. From an order denying the petition the wife appealed to this Court. In an unreported opinion (Barrash v. Barrash, No. 657, Sept. Term 1973, filed April 8, 1974), after finding that the evidence supported the trier of facts in his conclusion that the wife had deserted the husband and that there was “no showing of a colorable meritorious defense or of a colorable right to relief under her original bill”, we affirmed the order.

In the meantime, the husband, after filing a supplemental cross-bill of complaint, had obtained a divorce a vinculo matrimonii, the decree therefor being dated 20 December 1973. The decree reserved for future resolution the question of an award for counsel fees of the wife.

On 12 June 1974, Mr. Kerpelman, on behalf of the wife, filed in the divorce proceedings a “Petition for Counsel Fee” asking the chancellor “to award him a reasonable fee for the services he has rendered to the Complainant”. The petition alleged the particular services rendered, the time spent in rendering them (17572 hours) and further alleged “that the sum of $95 per hour would be a fair and reasonable rate of compensation for his particular said professional services, or the sum of $16,672.50”. The petition further alleged the financial status, respectively, of the wife and the husband.

The petition for counsel fees came on for hearing before Judge Marshall A. Levin on 9 September 1974. The transcript of the hearing reveals that at the outset, before any ■ evidence or arguments on the merits of the petition were heard, Mr. Kerpelman said to the court:

“If Your Honor please, I wish to dismiss my petition for counsel fee. I intend to proceed instead by an action at law, which would allow me a right of trial by jury.”

There then followed a colloquy between the court and both counsel concerning whether the dismissal should be with prejudice or without prejudice. The husband’s counsel urged that dismissal be with prejudice and opined that the issue of counsel fees “was reserved by this Court in its decree of December 20, 1973 ... [and] the issue was before the Court, and if it is dismissed ... it is res judicata and I want that on the Record”. Mr. Kerpelman responded that he disagreed “that it could be res judicata”. Judge Levin ruled:

“Now as to whether it would be res judicata I am not called upon to make that decision at this point and, therefore, I won’t. And, of course, counsel for the ex-wife has the right to withdraw her petition. Now whether it’s a matter that could have been litigated and therefore forecloses her in the future is something as I say I won’t decide. All I can say is that this Court is ready, willing and able to determine the matter of counsel fee. It is traditional that counsel fee is decided in an equity case and as I say I am available, but if the wife doesn’t want to pursue it, therefore, Mr. Kaufman, will you kindly draw an order dismissing the petition. You will not put in anything to the effect that it’s res judicata.”

Judge Levin’s written order following the hearing was as follows:

“On September 9, 1974, the above matter came on for hearing on the matter of the petition of Leonard J. Kerpelman, Esq., Solicitor for Lily F. Barrash (Kerpelman) for counsel fee, both Kerpelman and Joseph S. Kaufman, Esq., Solicitor for Frank M. Barrash (Kaufman) being present. Upon the oral motion of Kerpelman to dismiss his petition for counsel fee (although the Court was ready, willing and able to determine the matter of counsel fee), it is on September 9, 1974 by the Circuit Court No. 2 of Baltimore City
ORDERED that the petition of Kerpelman for counsel fee in the above matter be and the same is hereby dismissed, and it is
FURTHER ORDERED that Lily F. Barrash shall pay the costs of these proceedings.”

Seven months later, on 17 April 1975, Mr. Kerpelman, on his own behalf, filed a declaration at law against the husband, the appellee herein. The allegations in the declaration in their entirety read as follows:

“The particulars of this case are that the Plaintiff was retained for services pertaining to a domestic case and did so render services to Lilly M. Barrash, wife of Frank M. Barrash, and when the attached invoice was rendered, the Defendant refused payment.
And the Plaintiff Claims $16,672.50.”

The “attached invoice,” addressed to appellee husband, listed the identical services and time spent as set forth in the petition for counsel fees filed in the divorce proceedings. The declaration was accompanied by a motion for summary judgment “on the ground that the defendant has no defense to the Plaintiffs claim, and that there is no genuine dispute between the parties as to any material fact, and that the plaintiff is entitled to judgment as a matter of law.” Mr. Kerpelman’s affidavit in support of the motion set forth the amount “justly due and owing” and that he “provided services to or for the Defendant, as fully set forth in accompanying documents and statements which remain unpaid”. (Emphasis added).

On 7 July 1975, appellee filed a demurrer to the declaration, an “Answer” to the plaintiffs motion for summary judgment, and an affidavit in opposition to the motion. On the same date appellee filed a motion for summary judgment “pursuant to Rule 610 ... on the ground of res judicata, collateral estoppel and/or election of remedies”. The motion was accompanied by three exhibits: 1) A copy of the unreported opinion in Barrash v. Barrash, supra, 2) A copy of the petition for counsel fees filed in the domestic case; and 3) A copy of Judge Levin’s order of 9 September 1974, quoted supra, dismissing the petition at Mr. Kerpelman’s request.

On 7 October 1975, Mr. Kerpelman filed an “Affidavit in Support of Plaintiffs Opposition to Defendant’s Motion for Summary Judgment”. The affidavit did not dispute any of the operative facts contained in defendant’s motion. The record indicates that on the same date a hearing took place before Judge Shirley B. Jones. There is no transcript of the hearing. On 7 January 1976, Judge Jones filed a written “Ruling By The Court” stating, in its entirety, the following: “Defendant’s motion for summary judgment is granted, with judgment for costs in favor of defendant. In view of this ruling all other law motions are rendered moot.” It is from that judgment that Mr. Kerpelman has taken this appeal.

Maryland Rule 610 cL provides that the judgment sought by a motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In the instant case, the pleadings and affidavits, together with the exhibits attached thereto, show no dispute as to any of the facts as heretofore set forth in this opinion. The question before Judge Jones, then, was whether on those undisputed facts the appellee-defendant was entitled to a judgment as a matter of law.

On appeal the appellant presents us with a single question: “Did the court below err in considering an earlier voluntary dismissal of the same or a similar claim to be res judicata (or collateral estoppel or ‘election of remedies’) ? ” Appellant thus addresses himself to what he perceives to have been the only three reasons Judge Jones could have had for granting appellee’s motion for summary judgment. He argues that because Judge Levin’s order of 9 September 1974 dismissing the petition for counsel fees in the divorce case was not “with prejudice” it must be presumed to have been “without prejudice”, and because it was “without prejudice” Judge Jones was wrong in applying the doctrines of res judicata, collateral estoppel, or election of remedies to the undisputed facts and concluding as a matter of law that appellee was entitled to judgment. Appellant assumes in his brief that one of these three legal principles was applied by Judge Jones. The record, however, does not reveal which, if any, of those principles the judge applied. Each of them, however, was urged upon her by the defendant below in his memorandum filed in the case. Without deciding whether res judicata or election of remedies principles may also properly be applied in this case to support Judge Jones’ ruling, we hold that the principle of collateral estoppel does apply to the undisputed material facts and that Judge Jones was correct in ruling that the defendant-appellee was entitled to judgment as a matter of law. We set forth our reasons below.

As it is undisputed that there was no privity of contract between Kerpelman and the husband, the only possible basis for his suit at law against the husband is the common law theory that a third person who supplies “necessaries” to a wife may recover their value from the husband. While it has been held in certain circumstances that legal services to a wife come within the ambit of necessaries for which a husband may be held liable at law to the attorney who supplied those services, McCurley v. Stockbridge, 62 Md. 422 (1884), the law is clear that

“. .. when a wife deserts her husband without his fault she forfeits all right to support from him, and carries with her no authority to pledge his credit even for necessaries [citing cases].” Kerner v. Eastern Hospital, 210 Md. 375, 381 (1956). See also Dudley v. Montgomery Ward & Co., 255 Md. 247 (1969), and cases cited therein.

In the present case, as shown by the affidavits and exhibits, the issue of whether the wife deserted the appellee has already been litigated and finally decided. The doctrine of collateral estoppel prevents its relitigation in this case. Davis v. Frederick County Board, 25 Md. App. 68 (1975). The established fact that the services allegedly furnished the wife were furnished at a time when she had deserted the appellee, without fault on his part, operates as a complete bar to appellant’s claim. Summary judgment for the appellee was therefore properly granted.

Judgment affirmed.

Appellant to pay the costs.

      . Apparently, the reason for keeping open the question of counsel fees was because the appeal in Barrash v. Barrash, supra, was still pending and Kerpelman’s services had not been completed.

      . We observe that defendant’s motion is technically defective because Rule 610 a 1 provides that a motion for summary judgment may be made only “on the ground that there is no genuine dispute as to any material fact and that... [the moving party] is entitled to judgment as a matter of law”. Res judicata, collateral estoppel and/or election of remedies may be the “matter(s) of law” that could be applied to a set of undisputed material facts to produce a summary judgment, but unless the material facts are undisputed, these legal principles are not ipso facto “grounds” for a summary judgment. In the instant, case, however, it is clear that the operative facts alleged in the motion are not disputed by appellant and “... [T]he granting of summary judgment on a motion which is defective in form is not reversible error if there is no genuine dispute as to any material fact, Fletcher v. Flournoy, 198 Md. 53, 81 A. 2d 232 (1951)”. Myers v. Montgomery Ward & Co., 253 Md. 282, 290 (1969); Preissman v. Harmatz, 264 Md. 715, 721 (1972).

      . As the “action [was not] tried upon the merits”, the hearing judge was not required to comply with Md. Rule 18 c.

      . Our decision in this case should not be interpreted as affecting one way or the other prior appellate decisions regarding a wife’s right to an award for counsel fees in a divorce case, regardless of the outcome on the merits. See Hood v. Hood, 138 Md. 355 (1921); Daiger v. Daiger, 154 Md. 501 (1928); Stenger v. Stenger, 14 Md. App. 232 (1972).