author: Moore, J.,

text:
    MERLE H. PALTROW v. KENNETH C. PALTROW
    [No. 1020,
    September Term, 1976.]

      Decided September 8, 1977.

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

      Theodore Levin for appellant.

      Alan I. Baron, with whom were Frank, Bernstein, Conaway & Goldman on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this custody case involving former spouses and their four minor children, the Circuit Court for Baltimore County (Maguire, J.) declined to exercise jurisdiction after the natural mother filed a bill of complaint for “Custody of Minor Children and Assumption of Jurisdiction,” and the natural father interposed a Motion Ne Recipiatur under Maryland Rule 322, on the ground that the mother had failed to comply with the requirements of Section 191 of the Uniform Child Custody Jurisdiction Act, Code, Art. 16, § 184, et seq. (1957, 1973 Repl. Vol.). The court granted the father’s motion, holding that the Circuit Court for Multnomah County, Oregon, where the parties had been divorced and the father resided with two of the children, had already exercised jurisdiction in substantial conformity with the Oregon Uniform Act. On this appeal the mother contends (1) that the Motion Ne Recipiatur was improperly employed, and (2) that the chancellor misinterpreted the provisions of the Uniform Act as it exists in Oregon and in Maryland. The conclusion we reach is that the Order appealed from should be affirmed.

I

The father is a psychiatrist, practicing in Oregon; the mother is an instructor in psychiatric nursing at Johns Hopkins Hospital in Baltimore. The parties were married in 1960 and were divorced in Oregon on September 1, 1972. Mrs. Paltrow was originally awarded custody of the four minor children, namely, Danielle, age 15; Tamar, age 13; Benjamin, age 11 and lian, age 8. Under an Order of Modification, dated December 1,1975, custody of Danielle was awarded to Dr. Paltrow. On April 29, 1976, by a “stipulated order,” Benjamin’s custody was also transferred to the father. Both orders were adopted by the Circuit Court for Multnomah County, Oregon.

Prior to the entry of the Order dated December 1, 1975, Mrs. Paltrow informed the court of her intention to move from Oregon to Maryland. The Oregon court recited in the Order that the move was not in the best interests of the children, but, nevertheless, continued the modified custody in the mother upon condition that the children return to Oregon for visitation with their father during the summer recess.

The move to Maryland occurred on January 11,1976. When the mother failed to return the children to Oregon during the following June, the father, on July 12, 1976, filed a Motion in Oregon to have Mrs. Paltrow adjudicated in contempt and to transfer to him the custody of the children, Tamar and Han.

The mother’s bill of complaint was filed on July 26, 1976, in the Circuit Court for Baltimore County, and requested that the court assume jurisdiction of Tamar and lian, the two minor children residing with her. She alleged that it was in the best interests of these children that future questions regarding their welfare be decided in the forum in which they were residing. The father did not file an answer to the bill of complaint but, as already indicated, filed a Motion Ne Recipiatur on which a hearing was held on September 27, 1976.

At the hearing, it was brought to the attention of the chancellor that prior to the institution of the proceedings below by the mother, Dr. Paltrow had commenced proceedings in Oregon to adjudicate Mrs. Paltrow in contempt and to transfer to him the custody of Tamar and lian and that the mother had been served and was required to appear in court on October 15,1976.

Judge Maguire accordingly directed counsel for Dr. Paltrow to communicate with- the Circuit Court for Multnomah County, Oregon and to request official records pertaining to the custody proceedings in that jurisdiction. On October 7, 1976, after having received an exemplified copy of the motion filed by the father in Oregon on July 12, 1976, the court communicated with counsel its decision that under Art. 16, § 188, entitled “Proceeding pending in another state,” the Circuit Court for Baltimore County was divested of jurisdiction. This communication was followed by a Memorandum Opinion filed on November 9, 1976, in which the court stated in the opening paragraph:

“In order to clarify the record on appeal, I am setting forth in detail the reasoning behind my decision not to exercise jurisdiction in the above entitled matter.” (Emphasis added.)

II

The essence of appellant’s first assignment of error is that the question of exercising jurisdiction or not should not have been decided on a Motion Ne Recipiatur. As the Court of Appeals and this Court have had occasion to hold, such a motion has a specific, limited purpose and may not serve the office of a demurrer, plea, motion raising preliminary objection or motion for summary judgment. Millison v. Citizens National Bank of Southern Maryland, 256 Md. 431, 438, 260 A. 2d 324 (1970); McCormick v. St. Francis de Sales Church, 219 Md. 422, 427, 149 A. 2d 768 (1959); Doug-Dun Corp. v. Simms, 31 Md. App. 350, 353, 357 A. 2d 392 (1976). Here, the motion was addressed to the failure of Mrs. Paltrow to supply in her bill of complaint or in a separate affidavit the information required by § 191 of the Uniform Child Custody Jurisdiction Act, particularly information relating to Dr. Paltrow’s pending motion in Oregon for transfer of custody.

Although, in our judgment, it would have been more appropriate to dismiss the proceeding rather than to grant appellee’s Motion Ne Recipiatur, we find no reversible error. In the first place, the issue has not been preserved for appellate review. Maryland Rule 1085. Our study of the transcript of the hearing on appellee’s motion reveals that counsel for appellant, without voicing an objection, participated fully in the proceedings, made proffers of fact with respect to the background of the litigation, argued his interpretation of the effect of §§ 185,189,190 and 191 of the Uniform Act, clearly understood that the court would proceed to decide whether or not to exercise jurisdiction and even requested “a temporary custody order pending the jurisdiction question.” Under such circumstances, it is quite plain that the matter sought to be raised on appeal was not properly preserved for our review.

Furthermore, it is abundantly clear from a reading of the Uniform Act that even absent a motion, the court sua sponte could have considered the question of the exercise vel non of jurisdiction. This, we think, is apparent from the statement of general purposes contained at length in § 184 of the Act which reads in part:

“ § 184. Purpose and construction of subtitle.
(a) The general purposes of this subtitle are to:
(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
(3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection -with another state;...” (Emphasis added.)

Our conclusion is also supported by the language of § 188, “Proceedings pending in another state,” which provides in subsection (b):

“(b) Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under § 191 and shall consult the child custody registry established under § 198 concerning the pendency of proceedings with respect to the child in other states.”

We think it plain from the statement of purposes and the other sections cited that an equity court in a proceeding relating to child custody has an affirmative duty to examine the question of the pendency of proceedings elsewhere in Maryland or in other jurisdictions and should do so of its own motion even if the issue is not raised by the parties themselves. We also consider it not only proper but necessary for a court of this State to determine, as a preliminary matter, whether to exercise its jurisdiction where it becomes apparent that a proceeding concerning the custody of the child or children is pending in a court in another jurisdiction. This indeed is the mandate of § 188 of the Act, to which we now turn.

Ill

Examination of the Uniform Act discloses that this remedial statute (a) defines when a court has jurisdiction, § 186, (b) specifies when jurisdiction shall not be exercised, § 188 (a), and (c) prescribes when jurisdiction may be declined, §§ 189, 190. The chancellor in this case ruled in effect that although the Circuit Court for Baltimore County had jurisdiction, nonetheless § 188 (a) prohibited the exercise of such jurisdiction. That portion of the Act reads as follows:

“(a) Except where the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or is otherwise neglected or dependent, a court of this State shall not exercise its jurisdiction under this subtitle if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subtitle, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.” (Emphasis added.)

It was the finding of the lower court (a) that at the time of the filing of Mrs. Paltrow’s petition on July 26, 1976, a proceeding concerning the custody of the children was already pending in the Circuit Court for Multnomah County, Oregon, pursuant to a motion filed by Dr. Paltrow on July 12, 1976; and (b) that the Oregon court was exercising jurisdiction “substantially in conformity with this subtitle.”

Support for the Oregon court’s exercise of jurisdiction substantially in conformity with the provisions of the Uniform Act, which is also in effect in Oregon, was found by Judge Maguire in the provisions of § 186, “When court has jurisdiction,” specifically subsection (a)(1). We consider it appropriate to quote § 186 in its entirety:

“(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.”

With reference to the language employed in § (a)(1), swpra, the court below noted that when the father filed his motion in Oregon on July 12, 1976, the children, who had moved to Maryland with their mother on January 11, 1976, had been residents of Maryland for two days beyond the six-month period set out in § 186 (a)(l)(ii) above. The court stated in his Memorandum Opinion:

“However, considering the remedial nature of the act, and the fact that Oregon was the home state within one half year, or one hundred eighty-two days, of the Oregon filing, I find that the exercise of jurisdiction by the Oregon Court was in substantial conformity with the Act.”

We think that the trial court was correct in this interpretation. The six-months provision in the statute is obviously not the equivalent of a statute of limitations and the court properly found substantial conformity with the provisions of the Act.

We observe in this connection that based upon the findings of fact recited in the memorandum opinion, the chancellor could also have found exercise of jurisdiction by the Oregon court substantially in conformity with the Act pursuant to the provisions of § 186 (a)(2), supra. Clearly the two children involved and the parents had a “significant connection” with Oregon where they had resided for a number of years, where the parties had been divorced, where the original decree of custody and two modification orders had been adopted, and where there was evidence of a sociological nature available to the Circuit Court for Multnomah County with reference to the Paltrow family.

We also observe that the facts and circumstances involved in these proceedings might well have justified the court, under § 189 of the Act, “Finding that court is inconvenient forum,” to decline to exercise its jurisdiction and to dismiss the proceedings on the ground that Maryland was an “inconvenient forum” and that the court of Oregon was a “more appropriate forum.” Art. 16, § 189 (a). In this connection, we note that § 189 (c) provides that in determining whether it is in the interest of the child that another State assume jurisdiction, the court of the forum may take into account the following factors, among others:

“(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationship is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate; and
(5) If the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in § 184.” [“Purpose and construction of subtitle.”]

With respect to these factors, it is relevant that Oregon was the state where all four children had been raised and where two of the children reside with the father, in his custody. Oregon has the closer connection with the family and its court has considered the issue of custody on three occasions, the last being in April 1976, only three months prior to the institution of the instant proceedings.

IV

Included in appellee’s brief was a Motion to Dismiss and a separate appendix. Appellee also filed a “Supplemental Motion to Dismiss Appeal” which this Court declined to receive because the rules do not provide for such a supplemental motion.

The original Motion to Dismiss is based upon the contention that the appeal is moot in light of the fact that on October 19, 1976 the Oregon court issued a decree which awarded custody of all four children to Dr. Paltrow.

Documents supporting the Motion to Dismiss are contained in appellee’s brief and appendix. They are not included in the record of the proceedings below and no motion was made to supplement the record. The Motion to Dismiss the appeal is therefore denied. Community Realty Co. v. Siskos, 31 Md. App. 99, 102, 354 A. 2d 181 (1976).

Judgment affirmed; appellant to pay the costs.

      . Section 191 is entitled “Furnishing of information as to child,” and requires every party in a custody proceeding in his first pleading or in a separate affidavit to disclose, inter alia, whether he has information of any custody proceeding concerning the child pending in a court of Maryland or any other State. Its provisions are quoted infra, p. 7, n.5.

      . The Oregon Act is contained in Oregon Statutes 109.700-109.930.

      . Service of the father’s Motion and an Order to Show Cause dated July 30, 1976 was made upon Mrs. Paltrow’s attorney in Baltimore on August 12, 1976.

      . The provisions of § 191 are as follows:
      “§ 191. Furnishing of information as to child.
      (a i Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the child’s present address, the places where the child has lived within the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether:
      (li He has participated as a party, witness, or in any other capacity in any other litigation concerning the custody of the same child in this or any other state;
      (2) He has information of any custody proceeding concerning the child pending in a court of this or any other state; and
      (3) He knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.
      (b) If the declaration as to any of the above items is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to the details of the information furnished and as to other matters pertinent to the court’s jurisdiction and the disposition of the case.
      (c) Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which he obtained information during this proceeding.”

      . Section 198 is entitled, “Clerks to maintain registry; contents of registry” and requires the clerks of the Circuit Courts in Maryland to maintain registries in which shall be entered:
      “(1) Certified copies of custody decrees of other states received for filing;
      (2) Communications as to the pendency of custody proceedings in other states;
      (3) Communications concerning a finding of inconvenient forum by a court of another state; and
      (4) Other communications or documents concerning custody proceedings in another state which may affect the jurisdiction of a court of this State or the disposition to be made by it in a custody proceeding.”

      . This Court first examined the jurisdictional aspects of the Uniform Child Custody Jurisdiction Act in Howard v. Gish, 36 Md. App. 446 (1977).

      . Section 185 (5) provides:
      “ ‘Home state’ means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month period.”


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    PETER F. SIMMONS v. SHIRLEY M. SIMMONS
    [No. 1030,
    September Term, 1976.]

      Decided September 9, 1977.

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

      Bruce C. Bereano, with whom was David L. Hill on the brief for appellant.

      William F. Hickey, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Both parties to this appeal tell us, through counsel, that the pertinent facts are not in dispute, are not complex, and that the issue involved is simple. They disagree, however, on the correct resolution of the simple issue.

The case arises from a divorce, but domestic relations law is involved only to emphasize, by a process of exclusion, that the result is governed by the law of contracts.

Peter F. Simmons, appellant, and Shirley M. Simmons, appellee, were married in 1953, separated in August of 1973, and entered into a “Separation And Property Settlement Agreement” as of 15 January 1974. In August of 1974 the husband filed a Bill of Complaint in the Circuit Court for Montgomery County, praying for an absolute divorce on the non-culpatory ground of voluntary separation. Fie attached to the complaint a copy of the agreement of 15 January 1974, and prayed that the provisions of the agreement, “to the extent of the Court’s jurisdiction in the premises, be incorporated in any decree entered herein.”

The wife’s answer admitted the allegations supporting the prayer for divorce. She also admitted that the parties had entered into the agreement, “in an attempt to resolve various issues in respect to positions of property, legal rights and obligations.” She averred further, however, that the conditions of the agreement had not been complied with, and that she had received no support or maintenance.

On 11 July 1975 the court entered and filed a final decree granting the absolute divorce; stating that the provisions of the agreement of the parties are incorporated into the decree to the extent of the Court’s jurisdiction, but shall in all respects survive the decree; and providing that the "cause shall remain open for determination by the Court of any matters or provisions of the said * * * Agreement over which this Court has jurisdiction.”

A few weeks after the filing of the decree Mrs. Simmons filed a “Further Amended Answer” in which she prayed that the Court:

1. Find that the plaintiff breached the agreement;

2. Order the plaintiff to pay her a sum reasonable, in the Court’s discretion, as damages for the breach; and

3. Order the plaintiff to specifically perform the provisions of the agreement in the future, or, in the alternative, grant a reasonable amount of alimony to the defendant, or a reservation of such alimony.

Mr. Simmons responded with a denial that he had breached the agreement, and an assertion that Mrs. Simmons had no right to alimony, nor was the same reserved by the court. In addition he filed an affirmative claim for damages for alleged breaches by Mrs. Simmons of the agreement of each not to incur any debt on the credit of the other, and the agreement to apportion any tax refund on a pro rata basis.

We now refer to the significant provisions of the agreement. Paragraph 4 provides:

“4. Husband and Wife agree that since Husband is unemployed, Husband shall not be required at this time to pay to the Wife any sum for her support and maintenance. However, the parties agree to review the matter of support payments within sixty (60) days of the date of this Agreement and within sixty-day cycles thereafter. The Husband agrees to advise the Wife within ten (10) days of the acceptance of any employment or the undertaking of business venture or engagement in any form of self-employment. In no event, however, shall any support payments under this Agreement exceed $1,000 per month nor exceed in duration beyond five (5) years from the beginning of such payments.”

In addition, the parties agreed that their home in Bethesda would be conveyed to the wife, and that all of the furniture and other personal property in the home would be the sole property of the wife. Each was to retain the automobile then used by him or her. Neither would incur any debt on the credit of the other, and each -would indemnify the other for breach of this provision. The husband was to be responsible for any deficiencies in past joint tax returns, and entitled to any refunds. A special provision was made for apportioning tax liability, or rights in a refund, if the parties filed a joint return for the year 1973.

The agreement recited that it contained the entire understanding of the parties and that there were no undertakings other than those expressly set forth; that each party acted upon the advice of independent counsel, and the agreement constituted a fair, reasonable, and adequate settlement of their rights; and that it constituted a full settlement and release of all claims and demands of every nature by one party against the other, including all liability in respect of support, maintenance, or alimony, and all rights incident to the marriage relation.

On the issues raised by the parties, a hearing was held before Chief Judge Ralph G. Shure. At the conclusion of the testimony the judge indicated his views on the basic issues, and suggested that counsel might agree on certain details. With respect to the principal question, Paragraph 4 of the separation agreement, the judge said that it clearly contemplated that when Mr. Simmons was employed, he would have to pay, and the question was how much. The judge did not, at that time, decide “what that amount should be or when it would start.” He scheduled a further session at which he would hear arguments, but advised counsel that “clearly as far as she is concerned, the agreement was that he would pay her but it wouldn’t start until he was employed.” The court added that “whatever amount he is to pay must be geared to his employment and nothing else, and * * * that is the clear language.”

At the later hearing on 13 August 1976, the trial judge, taking into account Mr. Simmons’s income, and his expenses, said that he would order that Mr. Simmons pay to Mrs. Simmons, under their agreement, the sum of $600.00 per month for a period of five years, accounting from August 1975, so that, there was then an accumulated arrearage of $7,200.00. Against that figure the judge allowed a setoff of $2,943.47, which he found that Mrs. Simmons owed for charges she made on credit cards of Mr. Simmons, and her retention of the entire tax refund for the year 1973.

All of these rulings were incorporated in an order signed by the court on 28 August and filed on 30 August 1976. This appeal by Peter F. Simmons was taken from that order. There was no cross appeal.

A court exercising general equity powers has jurisdiction in an appropriate case and upon proper proof to order that an agreement be declared null and void, usually because of fraud, duress, or other wrongdoing; that an agreement be reformed so as to express the true intent of both parties; or that certain types of contractual obligations be specifically performed by a party who has refused or failed to perform, when there is no adequate remedy at law. Any court has the power to construe or interpret the meaning of language used in a contract, when that language is ambiguous, and subject to more than one meaning.

The rules of interpretation in such cases have been stated many times by the Court of Appeals. A recent case is Orkin v. Jacobson, 274 Md. 124, 332 A. 2d 901 (1975), in which the Court cited many of its prior cases and quoted from Slice v. Carozza Properties, Inc., 215 Md. 357, 137 A. 2d 687 (1958), and Kasten Constr. v. Rod Enterprises, 268 Md. 318, 301 A. 2d 12 (1973). In Slice v. Carozza Properties, Inc. the Court said, at 368:

“The written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite understanding, or unless there is fraud, duress or mutual mistake.”

In somewhat different language the Court had said in Lawless, Adm’x. v. Merrick, 227 Md. 65, 175 A. 2d 27 (1961), at 71:

“We find no ambiguity here, nor do we find that the language used is in any sense vague or susceptible of more than one meaning. Where a contract is plain as to its meaning there is no room for construction and it must be presumed that the parties meant what they expressed.”

And in Kasten Constr. v. Rod Enterprises the Court said, at 328-29:

“The cardinal rule in the construction and interpretation of contracts is that effect must be given to the intention of the parties, unless it is inconsistent with some established principle of law, * * *. But, where a contract is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed, * * *. And, when the language of a contract is clear, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant, * * *.” (Citations omitted.)

In some respects the power of an equity court exercising its special statutory jurisdiction in cases of divorce, alimony, and support and maintenance of a spouse has been, at least until recently, more restricted than its general equity power.

With respect to post-decree support payments to a spouse, a divorce court in Maryland may, in an appropriate case, order the payment of alimony. If the parties have agreed upon payments which are not alimony, the court may, in its decree, approve the payments, and may thereafter enforce, but may not modify them. See Simpson v. Simpson, 18 Md. App. 626, 308 A. 2d 410 (1973).

The court’s authority was succinctly summarized by Judge Singley for the Court of Appeals in Brown v. Brown, 278 Md. 672, 366 A. 2d 18 (1976), at 675:

“If the support provision of an agreement is for alimony, it will not be enforced as a matter of course in equity, Zouck v. Zouck, 204 Md. 285, 296, 104 A. 2d 573, 577-78 (1954), except when it is incorporated in a decree as alimony. If incorporated in the decree, it is subject to modification by the court, and may be enforced by contempt proceedings, Heinmuller v. Heinmuller, 257 Md. 672, 677, 264 A. 2d 847, 850 (1970).
“If the support provision is not alimony, it may be made the subject of an action for specific performance to the same extent as any other contract, Zouck v. Zouck, supra, 204 Md. at 296. It may form the basis for an allowance of support incorporated in a decree, Knabe v. Knabe, 176 Md. 606, 613, 6 A. 2d 366, 369 (1939). It may be enforced through contempt proceedings, but it may not be modified, LaChance v. LaChance, supra, 28 Md. App. at 576, unless the agreement is subject to Code Art. 16, § 28, which is applicable to agreements entered into subsequent to 1 January 1976.”

Any distinction between alimony and payments not constituting alimony has no significance in the present case. Mrs. Simmons relies exclusively upon what she contends are her rights under the agreement. At the hearing below, when Mr. Simmons’s counsel attempted, perhaps as an alternative, to inquire into Mrs. Simmons’s income and her needs, objections by her counsel were sustained as irrelevant to her rights under the agreement. Mrs. Simmons, in her brief in this Court, pinpointed the issue when she said:

“Reference was made supra re alimony allusion by appellant. The issue herein is exclusively contractual in nature and character. It is important to note that this Agreement was reached with advice of counsel at every stage by both parties. Appellee feels the Agreement was fair and reasonable under the circumstances prevailing at the time. Without considering any change of position, arguendo, even if the contract were not to be considered a good one by the appellant on further reflection or consideration, it would be too late. Good, bad, or indifferent, absent fraud, duress or marked irregularity, none of which are present or contended, the parties are bound if arrived at openly, voluntarily and with full knowledge of material factors relating thereto. One cannot ask the law to relieve him of the consequences of his own folly or fault.”

We now return to an analysis of Paragraph 4 of the agreement between the parties. In that paragraph, we see that the parties agreed upon three things. They were:

1. That at that time the husband would not pay anything to the wife for support.
2. That periodically the parties would “review the matter of support payments”, with the obvious implication that they may, in the future, arrive at an agreement for support payments to the wife. Ancillary to this was the husband’s agreement to keep his wife informed of his employment status.
3. The “outer limits” of any negotiations which may take place would be $1,000 per month and a duration of five years.

The Chancellor was convinced, as we are, that it was the intention of the parties to negotiate a support agreement at some time in the future. The evidence shows that the parties did negotiate, but failed to reach an agreement. The judge concluded that if the parties failed to agree, the court had the power to fix the terms of an agreement for them. In the course of ruling on evidence during the hearing, the judge commented that in fact the court was negotiating for the parties, “because they weren’t able to.”

In negotiating for the parties, the court erred. It is often said that a court may enforce an agreement reached by the parties, but may not write an agreement for them when they did not. In 1 Corbin on Contracts, § 29, the author says:

“It is quite possible for parties to make an enforceable contract binding them to prepare and execute a subsequent documentary agreement. In order that such may be the effect, it is necessary that agreement shall have been expressed on all essential terms that are to be incorporated in the document. That document is understood to be a mere memorial of the agreement already reached. If the document or contract that the parties agree to make is to contain any material term that is not already agreed on, no contract has yet been made; and the so-called ‘contract to make a contract’ is not a contract at all.”

See Peoples Drug Stores v. Fenton, 191 Md. 489, 62 A. 2d 273 (1948).

Neither in the written agreement of 15 January 1974 nor at any subsequent time did the parties agree that Mr. Simmons would pay support to Mrs. Simmons in any amount, or for any period of time. Without those essential terms, there was no agreement. There was nothing for the court to enforce. It is as if a court were asked to enforce an agreement “to sell my house at a price to be negotiated later”, when no price had ever been agreed upon.

The order requiring Peter F. Simmons to make payments to Shirley M. Simmons “in accordance with the terms of the Agreement” will be reversed. Although the court made a finding in favor of Mr. Simmons against Mrs. Simmons in the amount of $2,943.47 for breaches of the agreement by her, the court granted no affirmative relief, but set off that amount against the $7,200.00 which it found was owed by Mr. Simmons, and entered a finding against Mr. Simmons for the net amount of $4,256.53. The setoff falls with the principal debt.

Order dated 28 August 1976 reversed.

Appellee to pay costs.

      . Acts of 1977, Ch. 221, effective 29 April 1977, was enacted for the stated purpose of conferring “the powers of general and ordinary equitable jurisdiction” on equity courts in such cases. Our holding in this case would be the same under either view.

      . Effective 1 January 1976, support agreements made on or after that date are subject to modification by the court under certain circumstances. Code, Art. 16, § 28.


text:
    PAUL BURTON YOUNG v. NAOMI BERTHA YOUNG
    [No. 1052,
    September Term, 1976.]

      Decided September 9, 1977.

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

      Thomas H. McCarty for appellant.

      Stuart J. Snyder for appellee.
   Moore, J.,

delivered the opinion of the Court.

The parties to this appeal are a divorced couple who married each other when the wife was not yet divorced from her first husband. Two years after they learned the correct date of the wife’s decree, they remarried. In the interim, they had acquired a matrimonial residence as “tenants by the entireties.” Ten years after their remarriage, they were divorced. The former wife thereupon filed a bill of complaint for the sale of the property in lieu of partition. The Circuit Court for Anne Arundel County (Childs, J.), after a hearing and the filing of a written opinion, entered a decree appointing trustees to sell the property. It was also ordered that the net proceeds of sale be divided equally but that the former husband’s share be increased by one-half of the amounts he expended for taxes, mortgage amortization and interest from the time of the divorce to the date of settlement under the judicial sale. For the reasons set forth, we affirm.

I

Naomi and Paul Young first came to know each other in 1960 or 1961 when they were married to different spouses. They lived together in Baltimore County for a time and in the fall of 1963 they moved to 804 Geis Circle, Glen Burnie, Anne Arundel County, a single-family dwelling. Finally, on April 3, 1964, they were united in marriage in a civil ceremony at the Court House in Towson, Maryland. The application for marriage license, signed by Paul, described his own marital status as “divorced on April 15, 1963” and Naomi’s as “divorced on March 26, 1964.” The latter date, according to her testimony, was the day when she appeared before an examiner in the Circuit Court for Baltimore City in uncontested divorce proceedings which she had commenced against her first husband. It was her understanding, she testified, that her decree of divorce was signed on the day of the hearing. After the marriage, on May 20, 1964, the parties acquired the leasehold and ground rent interests in the single-family dwelling in which they had been living. The recitals in the deeds stated that the property was conveyed to them “as tenants by the entireties, their assigns, the survivor of them and the survivor’s personal representatives and assigns. .. .” (Emphasis added.)

In October 1964, Naomi received in the mail a communication from her attorney in the Baltimore City divorce proceedings, enclosing a copy of the final decree which was dated September 11, 1964. She testified that her husband was at home when this letter was received and that they were both “upset and excited.” Immediately contacting her attorney by telephone, she was told that her marriage to Paul was null and void and that they should be remarried. Called as a witness, the attorney testified that although Naomi’s decree of divorce was supposed to have been signed in March 1964, her former husband had failed to pay the court costs and the entry of the decree was consequently delayed until September 11,1964.-

Despite the knowledge of the invalidity of their marriage, the parties continued to live together in the marital abode as husband and wife. Each testified that neither felt impelled to participate in a second ceremony until August 12, 1966, when they were remarried at the Court House in Towson.

The relationship between them thereafter was marked by difficulties and discord. Paul’s three children by his former marriage lived with them, as did for a time Naomi’s child by her first marriage. She also returned to work in 1967 at the Westinghouse Electronics Corporation where she was employed as an electronics operator, earning close to $3 per hour; and her employment was a bone of contention. The parties weathered periods of separation. She left the home for as long as three months in 1968 and six months in 1969. On or about November 15, 1972, their separation became permanent. According to her testimony, living conditions became intolerable because of Paul’s temper. She testified: “We couldn’t get along at all and Paul was constantly raving and he was a beater and I just couldn’t take it any longer. ... He liked to beat on women.”

After her departure, she attempted, on one occasion, to return for some of her personal belongings but he prevented her from doing so. Naomi testified that Paul continued in the exclusive occupancy and use of the house after she left and that, as of a year later, he was living there with his three children, another woman and the latter’s two children.

She maintained that the down payment on the house in the sum of $234 was made from their joint savings, that mortgage payments and improvements to the property were financed through their joint earnings and performed by their joint efforts but that she made no contribution to the mortgage payments, taxes and insurance after leaving him in 1972. Paul, on the other hand, insisted that Naomi had made no contribution toward the purchase of the house, nor to the house payments and improvements, and that she spent all of her earnings on herself.

In his answer to Naomi’s bill for a sale of the property, he asked the court to declare that she held “said real property in trust” and that she be required to reconvey it to him. These requests were grounded upon claims of fraud on the part of Naomi in connection with the parties’ first marriage — consisting of alleged false statements that she was then unmarried, willfully made to deceive Paul into acquiring the house as tenants by the entireties.

On appeal, the former husband challenges the chancellor’s decree ordering the sale of the property and he posits four separate assignments of error. In our judgment, upon a careful review of the record and the applicable law, the case reduces itself to two fundamental issues: (a) Under all the circumstances, what was the effect of the conveyance to Naomi and Paul as tenants by the entireties when they were not in fact married? and (b) If Naomi acquired an interest in the property, to what extent, if at all, should she be charged with contributions on account of taxes, improvements, mortgage amortization and interest payments upon a judicial sale?

II.

At the time of the conveyance to the parties of the subject property “as tenants by the entireties” in 1964, they were not legally married. A tenancy by the entireties can be created only when the grantees stand in relationship of husband and wife at the time of the conveyance to them, and absent such a relationship, an attempt to create such tenancy must fail. Lopez v. Lopez, 250 Md. 491, 510, 243 A. 2d 588 (1968); Hutson v. Hutson, 168 Md. 182, 188, 177 A. 177 (1935); Mitchell v. Frederick, 166 Md. 42, 48, 170 A. 733 (1934). The subsequent marriage, or, as in this case, remarriage, of the grantees of real property does not convert their ownership into a tenancy by the entireties. Schwarz v. United States, 191 F. 2d 618, 621 (4th Cir. 1951); Lopez v. Lopez, supra, 250 Md. at 511. Clearly, however, a deed which is not effective to create a tenancy by the entireties is not a nullity, unless fraud is established. Hutson v. Hutson, supra. In the absence of fraud, the effect of the attempted conveyance to Naomi and Paul in 1964 as tenants by the entireties was to create either a joint tenancy or a tenancy in common.

Section 2-117 of the Real Property Article of the Annotated Code of Maryland (1974) establishes a presumption against joint tenancy “unless the deed, . .. expressly provides that the property granted is to be held in joint tenancy.” Joint tenancies in Maryland are thus not favored legislatively but they are, of course, recognized and, in their creation, the words “joint tenants” or “joint tenancy” need not be used. As Chief Judge Murphy of the Court of Appeals, specially assigned, stated in Gardner v. Gardner, 25 Md. App. 638, 335 A. 2d 157 (1975), “the statutory requirement is only one of clear manifestation or intention and not of particular words.” Id. at 643. See Alexander v. Boyer, 253 Md. 511, 253 A. 2d 359 (1969); Register of Wills v. Madine, 242 Md. 437, 219 A. 2d 245 (1966); Boyd v. Boyd, 24 Md. App. 497, 332 A. 2d 328 (1975). The principal characteristic of a joint tenancy is the right of survivorship and the specific expression in a deed of such a right is “a clear indication of an intention to create a joint tenancy.” Gardner, supra, 25 Md. App. at 642; Mitchell v. Frederick, supra, 166 Md. at 47; cf. Donnelly v. Donnelly, 198 Md. 341, 84 A. 2d 89(1951).

In the instant case, the right of survivorship was explicitly stated. As previously noted, the deed recited that the grantors conveyed the property to “Paul Burton Young and Naomi Bertha Young, his wife, as tenants by the entireties, their assigns, the survivor of them. . . .” (Emphasis added.) The parties thus took title to the property as joint tenants and not as tenants in common.

We reject Paul’s contention that there was fraud on the part of Naomi and that she held her interest under a constructive or resulting trust. The chancellor held that Paul had failed to prove fraud. This finding is not clearly erroneous. Maryland Rule 1086. Indeed, we think the record abundantly supports his conclusion that, “The totality of the circumstances indicate the presence of good faith in [Naomi’s] actions;” and we are impressed with the court’s assessment of Naomi’s credibility in stating, “The sincerity of [Naomi’s] belief that she was once again free to remarry is not to be doubted.”

Appellant’s reliance upon Schwarz v. United States, supra, and Hutson v. Hutson, supra, is misplaced. Both cases involved the fraudulent concealment by one spouse of a prior undissolved marriage. In the instant case, there was no fraud on the part of Naomi which would support the application of the Hutson holding that the entire conveyance be set aside nor of the Schwarz finding that a court of equity would decree a constructive trust in favor of the defrauded spouse. To the extent that Schwarz also speaks of a resulting trust in favor of the spouse who put up the purchase price, it is also inapposite. Here, as the chancellor found, the down payment was jointly made. In addition, under the circumstances of (a) the remarriage of the parties in 1966 and (b) their cohabitation as husband and wife for an additional six-year period, we woulá hold the former husband not entitled to assert a resulting trust, even had he alone contributed the purchase price. See Mountford v. Mountford, 181 Md. 212, 218, 29 A. 2d 258, 262 (1942), citing, Dixon v. Dixon, 123 Md. 44, 55, 90 A. 846 (1914), where the Court of Appeals stated:

“Thus, where a person purchases land and pays the consideration with his own money, but causes the title to be placed in the name of one to whom the purchaser is under a natural or moral obligation to provide, such as in the case of parent and child, or husband and wife, no presumption of a resulting trust will arise, but will be regarded prima facie as a gift or an advancement for the benefit of the nominal purchaser.” (Emphasis added, i

III

The remaining principal issue involves Paul’s contention that, if his former wife has a valid cotenancy, he is entitled to contribution from her for the small down payment of $234, for mortgage payments, taxes and insurance from 1964 through 1976 aggregating $17,250 and for improvements to the property in the sum of approximately $4,500.°

The Maryland rule of law with respect to contribution is that when one of two or more co-owners of an equity of redemption makes payment upon the mortgage debt and that payment redounds to the benefit of a co-owner or owners, the payor is entitled to receive contribution from his cotenants to the extent that he has paid their share. Aiello v. Aiello, 268 Md. 513, 518-19, 302 A. 2d 189 (1973); Pino v. Clay, 251 Md. 454, 456-57, 248 A. 2d 101 (1968); DiTommasi v. DiTommasi, 27 Md. App. 241, 255, 340 A. 2d 341 (1975). Similarly, one cotenant is entitled to contribution from another for necessary repairs and improvements made with the assent of the other or without such assent when the repairs are necessary for the preservation of the structures on the land. Woodcock v. Pope, 154 Md. 185, 147, 140 A. 76 (1928). Accord, Colburn v. Colburn, 265 Md. 468, 477, 290 A. 2d 480 (1972); DiTommasi v. DiTommasi, supra, 27 Md. App. at 262-63.

Notwithstanding the viability of these Maryland rules, we find them inapplicable to the instant case for the reason that the chancellor made affirmative findings — which we cannot determine to be clearly erroneous — that “the parties pooled their resources, both financially and physically, concerning the house — typical of the normal pattern of behavior for husband and wife.” This finding by the chancellor of joint contribution was made in the face of testimony by Paul that the property was purchased with his funds alone and that all mortgage payments and improvements were through his sole efforts.

As previously indicated, Naomi was employed at the Westinghouse Electronics Corporation, both prior to the marriage when the parties were living together and during the marriage. There was a short period of unemployment in 1964 but thereafter she obtained part-time work at Korvette’s Department Store. She remained there until 1967 when she regained her full-time employment at Westinghouse and retained it through 1975. In contradiction of his version of the facts, she testified that they shared all of their expenses by combining their earnings until she left appellant in 1972. Naomi testified at length with respect to the improvements, stating that the costs were defrayed from joint funds and that they and the children shared the physical work.

In the resolution of questions of fact, we are governed by Maryland Rule 1086 and may not substitute our judgment for that of the lower court unless it was clearly erroneous. Due consideration must be given the chancellor’s opportunity to observe the demeanor of the witnesses, to judge their credibility and to pass upon the weight to be given their testimony. As in the case of the chancellor’s determination with respect to the issue of fraud, we conclude not only that his findings were not “clearly erroneous” but that they are supported by substantial evidence. See DiTommasi v. DiTommasi, supra, 27 Md. App. at 246-47; Colburn v. Colburn, supra, 15 Md. App. at 513.

We observe also that the chancellor’s determination would, in any event, find additional support — at least during the period from August 1966 until November 1972 when the parties were validly married and living together — from the Maryland “presumption of gift” where husband and wife own property jointly and one spouse pays the major portion of the taxes and encumbrances and costs of improvements. Klavans v. Klavans, 275 Md. 423, 427, 341 A. 2d 411 (1975). In the face of this presumption, the spouse seeking contribution must negate the presumed donative intent by clear and convincing evidence. Such evidence is here lacking.

Finally, we address the question of Paul’s entitlement or not to contribution subsequent to the final separation of the parties in November 1972, after which Naomi concededly supplied no funds for the payment of taxes, mortgage amortization and interest. Naomi’s reasons for leaving the home at that time have previously been quoted. The chancellor found that the “uncontradicted testimony indicates that plaintiff was forced to leave the marital abode as the result of defendant’s vicious conduct” and that her departure under such circumstances constituted an “ouster,” relieving her of any obligation for contribution.

Ouster has been defined as a notorious and unequivocal act by which one cotenant deprives another of the right to the common and equal possession and enjoyment of the property. Israel v. Israel, 30 Md. 120, 125 (1869); Van Bibber v. Frazier, 17 Md. 436, 451 (1861). See 2 American Law of Property § 6.17 (A.J. Casner, ed. 1952). Where the chancellor had before him uncontradicted evidence that the appellee was forced to leave her home because of the appellant’s violent conduct toward her, we cannot say that the conclusion that she ,was ousted was clearly erroneous. Maryland Rule 1086. Contrary to the suggestion contained in appellant’s brief, ouster was not impermissibly presumed from appellant’s exclusive possession. See Hogan v. McMahon, 115 Md. 195, 200, 80 A. 695 (1911).

Since the appellant ousted the appellee from the jointly owned property, thereby denying her the right to its use and enjoyment, we agree with the trial judge that the appellant is not entitled to contribution. See Colburn v. Colburn, supra, 265 Md. at 475-76; Hogan v. McMahon, supra.

Paul’s lament that Naomi waited four years before acting comes with poor grace, to say the least. During that entire period, until now, he has had the benefit of possession of the premises and no claim is made, on her behalf, that he account to her for the value of such exclusive use. In this connection, we observe that Naomi has taken no cross appeal and therefore does not challenge the chancellor’s ruling that her liability for contributions commenced as of February 9, 1976, the date of the decree of divorce a vinculo matrimonii.

Decree affirmed; appellant to pay the costs.

      . Paul testified that he agreed to marry Naomi after she had informed him that she was pregnant. She later aborted the child.

      . Naomi did not commence divorce proceedings until 3 years later. She obtained a decree a vinculo matrimonii on February 9, 1976.

      . The claimed errors are the chancellor’s findings: (ll that appellant failed to show fraud to support either a constructive or resulting trust; (2) that the parties became tenants in common after their divorce on February 9, 1976; (3) that appellant intended to make a gift to appellee (a finding not made by the chancellor); and (4) that appellant had caused an ouster of appellee from the property in 1972.

      . The Court of Appeals in Schilbach v. Schilbach, 171 Md. 405, 189 A. 432 (1937) defined a tenancy by the entireties as “essentially a joint tenancy, modified by the common law theory that husband and wife are one person... . Except for the fact that it cannot be defeated, during their lives, without the joint action of both, the same rules of law apply to it as to any other cotenancy.” Id. at 407-08.

      . Infra at 8-10.

      . Club Room $500; carpet $300; fence $300; room addition $175; patio deck $200; landscaping $450; aluminum siding $850; inground pool $1,025; fireplace $200; bathroom $200 and central air-conditioning $300.

      . Although we consider doubtful whether the improvements included in appellant’s claim for contribution, supra n.6, may be brought within the ambit of “necessary repairs and improvements,” DiTommasi, supra, 27 Md. App. at 263, we need not decide that issue.

      . The chancellor concluded (erroneously, we think) that the parties became tenants in common as of the date of the decree. Since they were joint tenants beginning m 1964, as we have found, their 1976 divorce would have no effect on the joint tenancy. Of course, if they had been tenants by the entireties, the divorce would have converted that tenancy into a tenancy in common.