Herget v. Herget

ADKINS, Judge,

dissenting.

The majority holds that Mary Elizabeth Herget’s claim for a monetary award from her former husband, Charles E. Herget, Jr., is barred by an antenuptial agreement. In the course of reaching that result it recognizes that “ ‘a court, in construing an agreement, must first determine from the language of the agreement itself, what a reasonable person in the position of the parties would have meant at the time it was effectuated.’ ” Maj. op. at 470 (quoting Aetna Cas. & Sur. v. Ins. Comm’r, 293 Md. 409, 420, 445 A.2d 14, 19 (1982)). The majority concludes “that the intent of the parties manifested by their antenuptial agreement was to prevent the very type of claim that is now being made.” Maj. op. at 477. I respectfully dissent because I cannot agree that an antenuptial agreement that makes reference only to property or interests therein manifests an intent to abandon a claim for a remedy that is neither property nor an interest in property; a remedy that was, moreover, utterly unknown to Maryland law when the antenuptial agreement was executed.

*478The Hergets executed the agreement on 27 September 1973. The agreement stated their intent to mutually “waive, relinquish and bar ... all ... rights and interests ... with respect to any property, real or personal, now owned or hereafter acquired by the other party.” The future Ms. Herget also released and surrendered

any and all claims she may have, now, or at the time of any termination of the proposed marriage between the parties, ... in any estate or property of [Mr. Herget], now owned or hereafter acquired by him, including all rights to support, dower, thirds and halves, and all other rights and interests of every kind therein that shall arise out of the relation of the parties as husband and wife____

There was a reciprocal undertaking on the part of Mr. Herget. Each party also waived and released “unto the other party ... all of her and his respective rights, interests and claims in and to said property of the other____”

The plain language of the agreement dealt with property and interests in property; those words are repeated numerous times. There is also a release or surrender of “rights to support.” But the agreement does not address the possibility of a then non-existent equitable monetary adjustment between the parties, which is something quite different from conventional “support” or conventional alimony. Nor does it purport to waive any possible remedy one spouse-to-be might have against the other.

Almost two-and-a-half years after the antenuptial agreement was signed, the Governor’s Commission on Domestic Relations Laws was created. Some two years after that, in January, 1978, the Commission submitted its report, in which it recommended the creation of the concept of marital property and the remedy of a monetary award as a means of curing “the perceived existing inequity in present Maryland law governing the disposition of real and personal property upon divorce or annulment____” Report of the Governor’s Commission on Domestic Relations Laws, at 2 (1978). That recommendation was embodied in Chapter 794, Laws of 1978. It is now set forth in §§ 8-201 et seq. of the *479Family Law Article, Maryland Code (1984,1989 Cum.Supp.). The purpose of the monetary award is to permit a court to make an equitable monetary adjustment after identifying and valuing “marital property” and considering many factors, including both monetary and non-monetary contributions to the marriage, and the economic circumstances of each party. Queen v. Queen, 308 Md. 574, 577, 521 A.2d 320, 322 (1987); Unkle v. Unkle, 305 Md. 587, 595, 505 A.2d 849, 853 (1986), and cases there cited.

Marital property is not property in the conventional sense. Falise v. Falise, 63 Md.App. 574, 580, 493 A.2d 385, 388 (1985). It is a device created by the legislature to correct a potential inequity that may arise upon the dissolution of a marriage. The “only function of ‘marital property’ is to form a base for a ‘monetary award.’ ” Id.

What is more to the point,

the right to a monetary award ... is not an interest in the estate or property of one’s spouse. Rather, it is a remedy provided to divorcing spouses to seek financial compensation to cure inequity in the distribution of property acquired during the marriage according to how that property is titled.

Watson v. Watson, 77 Md.App. 622, 634, 551 A.2d 505, 511 (1989). See also Zandford v. Wiens, 314 Md. 102, 106, 549 A.2d 13, 14-15 (1988); Niroo v. Niroo, 313 Md. 226, 230-231, 545 A.2d 35, 37 (1988).

When the majority decides that the Hergets’ antenuptial agreement bars a monetary award, it rewrites the contract for the parties, despite the majority’s recognition that “ ‘[cjourts have no right to make new contracts for the parties.’ ” Maj. op. at 470 (quoting Joffe v. Niagara Fire Ins. Co., 116 Md. 155, 160, 81 A. 281, 282 (1911)). It expands their waivers and relinquishments beyond property and interests in property, to encompass a remedy unknown to Maryland law in September 1973.

*480To rewrite the antenuptial agreement for the parties is bad enough. Even worse is the fact that, despite its lip service to the objective law of contracts, the majority actually abandons that doctrine. The doctrine, of course, is based on the notion that, ordinarily, a contract is not read to effectuate the subjective intent of a party. Instead, at least in the absence of ambiguity, it is viewed through the eyes of a fictitious reasonable person, and given the meaning that person would ascribe to its language in light of the circumstances that existed when the contract was executed. See S. Williston, Williston on Contracts, § 1825, at 473 (3d ed. 1972) (rules of interpretation of releases are subordinate to “broad rule that the intention which the words of the instrument express in light of the circumstances existing at the time shall prevail”).

When this contract was executed, as I have pointed out, the concept of “monetary award” was unheard of in Maryland. How could the Hergets have intended an antenuptial agreement dealing with property interests to bar a then non-existent remedy? See Globe American Casualty v. Chung, 76 Md.App. 524, 543, 547 A.2d 654, 663 (1988) (“release ... covers only such matters ... within the contemplation of the parties when the release was given”), cert. denied, 314 Md. 508, 551 A.2d 874 (1989). I agree with the Court of Special Appeals:

Since the concept of the monetary award was not introduced in this State until 1978 ... it is understandable that the parties to the antenuptial agreement in the case subjudice did not contemplate a monetary award in 1973. This lack of contemplation of such a concept, however, is the very reason why [Ms. Herget] did not surrender her right to seek a monetary award which did not exist at the time she entered the antenuptial agreement.

Herget v. Herget, 77 Md.App. 268, 279-280, 550 A.2d 382, 387 (1988).

This analysis in no way runs afoul of Bernstein v. Kapneck, 290 Md. 452, 430 A.2d 602 (1981), upon which the majority so heavily relies. Bernstein holds that a general *481release of claims for injuries “known or unknown, and which have resulted or may in the future develop” manifested an intent to release the defendant from responsibility for a serious brain injury of which the parties neither knew nor should have known when the release was executed. 290 Md. at 464, 430 A.2d at 609. Bernstein, however, dealt with a factual question: an unanticipated change in condition of the injured person. Human experience tells us that injuries sometimes have consequences that do not show themselves for long periods of time. Thus, it is not unforeseeable that such a development may occur. One may be able to conclude, given that foreseeability, that a release like the one in Bernstein is intended to extend to the unanticipated medical eventuality.

The Bernstein rule is a harsh one, but not necessarily unfair. When one releases claims for injuries “known or unknown, and which have resulted or may in the future develop” one does so in the light of one’s experience. It is reasonably foreseeable that one may be giving up a presently unknown claim; the language of the Bernstein release expressly so stated.

Thus, had Mr. Herget suddenly and unexpectedly undergone a vast increase in wealth, as by winning a large lottery jackpot, Ms. Herget would not be heard to say that she could assert some claim against the unanticipated new property. That sort of eventuality is also foreseeable, as we know from human experience.

It is foreseeable, too, that a legislature may change the law. But a waiver based on factual matters within a party's reasonable contemplation is entirely different from one based on the extent to which a lay person’s imagination may be held to predict future legislative ingenuity.

It asks too much to assume that a lay person in 1973 could reasonably foresee the creation of the monetary award concept in 1978. “What the parties did not know at the time of execution may illuminate their intent at that time.” Morgan v. Cohen, 309 Md. 304, 318-319, 523 A.2d *4821003, 1010 (1987). In 1973, the Hergets knew (or could have been advised) about property rights. They could not possibly have known (or been advised) about the future concept of monetary awards. They were not required to foresee the creation of that concept by the General Assembly. As the Supreme Court of New Jersey said in quite similar circumstances, a spouse “cannot be regarded as having released a right which she did not have and could not fairly have anticipated.” Smith v. Smith, 72 N.J. 350, 359, 371 A.2d 1, 6 (1977).

I do not believe the antenuptial agreement covered the monetary award remedy. I would affirm the judgment of the Court of Special Appeals.

Judge ELDRIDGE has authorized me to state that he concurs with the views expressed herein.