Michael Benefiel LA 114 Domestic Relations Summer I 2012 Professor Alan Drew 1

Bell v. Bell: In Maryland Marriage Became a Financial Partnership of Equals Facts: Diane M. Bell consulted a lawyer and so advised, presented her husband, Stanley A. Bell, with a draft separation agreement on Aug. 27, 1975. He revised this draft and offered her a counterproposal, along with his threat immediately to reveal her adulterous affair with a policeman to Internal Affairs and the newspaper unless she signed. Stanley secretly recorded their conversation without Dianes knowledge or consent, and that evidence was admitted in court.1 She then signed an agreement which split assets disproportionately and provided her with a cash payment, title to a house, and monthly child support. She got one property, Stanley got the remaining ten. All eleven had been held by both married partners as tenants by the entireties. On later reflection, she regretted making a disadvantageous bargain and petitioned the Montgomery County Circuit Court to cancel the separation agreement and the 11 deeds for properties executed pursuant to that agreement. The Circuit Court (Judge Richard B. Latham) dismissed her complaint. Her appeal came to the Court of Special Appeals and was decided on Nov. 10, 1977. [Bell v. Bell 38 Md.App. 10, 379 A.2d 419 (Md.App. 1977)] Legal Issues Presented by the Appellant: 1. Was the Circuit Courts finding that her agreement to a disproportionate allocation of the properties was voluntary an obvious error? 2. Was the Circuit Courts exclusion of the testimony of a witness who had listened to Diane in the course of that day when the agreement was negotiated an obvious error? 3. Was the Circuit Courts finding that she had ratified the separation agreement and deeds an obvious error? Holdings: The Maryland Court of Special Appeals (Judges Thompson, Melvin, and Wilner) never reached the issue of her ratification. The appeals court affirmed the lower courts decision to exclude the hearsay evidence of the appellants friend, not persuaded an exception to the hearsay rule on the basis of a spontaneous utterance was justified. The appellate courts reasoning about the existence of duress requires some discussion, for it found evidence of duress and yet deferred to the trial courts judgment on this issue. The Court of Special Appeals affirmed the judgment of the lower court. Reasoning:
1

Maryland prohibits the taping of conversations without the consent of all parties. In 1977, Maryland adopted its present Wiretap and Electronic Surveillance Act. Because Stanley had recorded the conversation on Aug. 27, 1975, it did not violate the 1977 law. If the same fact pattern were to be presented to a court in 2012, I am confident that no such recording would be admitted into evidence.

Michael Benefiel LA 114 Domestic Relations Summer I 2012 Professor Alan Drew 2

The elected representatives and voters of Maryland amended the state constitution (originally drafted and approved in 1867) by adding Article 46 in 1972, ratifying the wording in 1978: Equality of rights under the law shall not be abridged or denied because of sex. The court, reviewing the facts of Bell v. Bell, was walking through the shifting landscape of marriage and the changing patterns of marriage relationships between spouses. Before Article 46, in 1951, the Maryland Court of Appeals could write: Generally, however, on account of the natural dominance of the husband over the wife, and the confidence and trust usually incident to their marriage, a court of equity will investigate a gift from a wife to her husband with utmost care, especially where it strips her of all her property, and the burden of proof is on the husband to show that there was no abuse of confidence, but that the gift was fair in all respects, was fully understood, and was not induced by fraud or undue influence. [Emphasis added] [Manos v. Papachrist, 199 Md. 257, 262, 86 A.2d 474, 476 (1951)] By 1977, and following enactment of Article 46 to the Constitution of the state, the Maryland Court of Appeals held that sex classifications were no longer permissible. [Rand v. Rand 280 Md. 508, 374 A.2d 900 (1977)] The presumption of a husbands natural dominance was invalid, reasoned the court. A judicial tradition of viewing women as potential victims of dominant husbands and taking care to supervise the just division of marital property to protect wives yielded to a new era of seeing wives as equal to the negotiation of an equitable division of marital property, and thus responsible for the bargains they struck. Against Dianes appeal that the burden of proof of the fairness of the separation agreement, including a disproportionate division of the 11 properties, should rest on Stanley as the husband and dominant partner, the court found instead that equal rights implied that both Diane and Stanley were co-equal married partners, able to contract freely with each other. Courts prefer to enforce contracts, which best represent the independent acts of free individuals to make mutually satisfactory agreements as part of a bargained-for exchange. Under the Courts view of Marylands new equal rights amendment, the burden of proof shifted to Diane, who was claiming that her actions in signing the agreement were a result of coercion, fraud, or mistake. When she failed to provide a preponderance of the evidence on these questions, her claim was rejected by the court.

Michael Benefiel LA 114 Domestic Relations Summer I 2012 Professor Alan Drew 3

Even Judge Latham in Montgomery County found a disparity in consideration in the division of marital properties in the ratio of $45,000 for her and $165,000 for him.2 Was such a disparity sufficient evidence to reach a finding of an unjust or inequitable agreement? Judge Latham answered no and his judgment was affirmed. As he wrote in 1977: We see no reason to shift the burden of proof because the parties were husband and wife and one of them made a bargain which now seems unfair, but is not grossly unfair. [38 Md.App. 15] The Court of Special Appeals did take a short excursion to consider the potential for emotional duress of Stanleys threat to report Dianes adulterous affair with the police officer to his employer and to the local newspaper. As the recording proved, Dianes entreaties to consult her lawyer or threats to leave the room were met with Stanleys threats to get the ball rolling on his calls to the press and the police. Unlike the lower court, the appeals court did find this constituted evidence of duress. Along the way to this conclusion, however, the court noted a distinction between a threat to reveal a truth and a threat to make a false claim or a claim without a reasonable belief of success. The lower court had construed Stanleys words to mean that he was prepared to file for divorce on the grounds of adultery. A stated intention to file a civil suit made in good faith cannot be a legally sufficient basis for a finding of duress, according to the appeals court here. The court does recognize a moral dimension to the question. As persuasive authority here in Maryland, the court cites a North Carolina Supreme Court case from 1971, Link v. Link 278 N.C. 181, 179 S.E.2d 697 (N.C. 1971). The law with reference to duress has, however, undergone an evolution favorable to the victim of oppressive action or threats. The weight of modern authority supports the rule, which we here adopt, that the act done or threatened may be wrongful even though not unlawful, per se; and that the threat to institute legal proceedings, criminal or civil, which might be justifiable, per se, becomes wrongful, within the meaning of this rule, if made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings. [179 S.E.2d at 705]3 While moving toward recognition of the new era of womens equality, the appeals court was also quite willing to write about their suppositions concerning the value to her of her reputation:

As someone with a modest interest in property values, I note that keeping the deeds to ten properties in Montgomery County valued at $597,000 (with $434,339 encumbered by mortgages) in 1977 probably left Stanley comfortably well off or at least not missing any meals as long as his tenants kept paying their rents. I hope that he kept paying child support as promised. 3 In Link v. Link, the husband had threatened to take the children from the wife unless she transferred share certificates to him. The Supreme Court of North Carolina found the husbands threat to sue for custody was made in bad faith and constituted duress.

Michael Benefiel LA 114 Domestic Relations Summer I 2012 Professor Alan Drew 4

There is no rule of law that precludes a woman from giving away a substantial portion of her property to save her reputation, if it is her voluntary act. Although on the evidence we may have found the act involuntary, we must accept the chancellors [Circuit Court Judges] findings because of his superior position to make this subtle distinction. [Bell v. Bell 38 Md.App. 18] The Womens Movement of the 1970s may not have anticipated that the courts in Maryland would assist their emancipation with such alacrity. Women who made bad bargains may have had cause to regret at leisure the price paid for reputation which may not have paid college tuition or future medical expenses as well as some real estate holdings in Montgomery County would have. My own dicta, without authority: In my view, as someone who has practiced mediation for several years in Maryland, women continue to find the adversarial nature of the domestic relations law and litigation a very high price to pay for insisting on their financial rights as married partners. Men, too, find the experience of separation and divorce, and the overwhelming costs of the process deeply distressing. The emotional wear and tear on all parties in a separation and parenting process of negotiation and working out in detail, especially during economic times which provide little or no margin of comfort, can create more damage and definitely does not serve the best interests of any children. The law and lawyers and courts may be very good at sorting out the details of property, custody, and child support and spousal support these days. Other ways to sort out the collateral damage on the human beings and their capacity for recovery and rebuilding meaningful relationships of trust and mutual confidence need to be found outside the courtroom. I dont believe that mediation is always easy, cheap, or successful. For some couples who are prepared for sustained negotiations on their own behalf, recognizing that emotions and relationships count too, mediation offers an alternative to litigation that might usefully be attempted before turning to the shark lawyers who are circling in the bloody waters of high priced divorce in Montgomery County.

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