Summary Judgment Transcript

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IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY, MARYLAND

JUDITH CHAMBERLAIN

Plaintiff ,

vs.

Case Number:

02 - C-09 - 139690 DA

STEPHEN CHAMBERLAIN

Defendant.

OFFICIAL TRANSCRIPT OF PROCEEDINGS

Motion Hearing)

Anne Arundel, Maryland

Thursday , January 9, 2014

BEFORE :

HONORABLE MICHAEL J. WACHS

APPEARANCES:

For the Plaintiff :

MARIETTA B. WARREN, ESQUIRE

For the Defendant:

DONNA McCABE SCHAEFFER, ESQUIRE

Electronic Proceedings Transcribed by: Dawn Archambo

HUNT REPORTING COMPANY

Court Reporting and Litigation Support

Serving Maryland , Washington, and Virginia

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RECORD OF PROCEEDINGS

SUMMARY UDGMENT MOTION

By Ms . Schaeffer

By Ms . Warren

COURT S RULING



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(1:50 p.m.)

THE COURT: C-09-139690, Chamberlain versus

Chamberlain.

MS. WARREN: Good afternoon, Your Honor.

THE COURT: Good afternoon. Counsel if you want

to identify yourselves for the record including spellings of

your last names.

MS. WARREN: Your Honor, Marietta Warren,

W-A-R-R-E-N, I m here on behalf of Mr. Brown today.

THE COURT: Okay.

MS. SCHAEFFER: Good afternoon, Your Honor. Donna

Schaeffer, S-C-H-A-E-F-F-E-R, on behalf of Mr. Chamberlain,

I m in for Kevin Schaeffer today.

THE COURT: Okay, thanks. So I think this is

Mr. Chamberlain s motion so I did read through the file list

and I m happy to hear any argument you d like to make.

MS. SCHAEFER: Thank you, Your Honor.

THE COURT: Sure.

MS. SCHAEFER: The issue before --

THE COURT: Let me -- I assume that

Ms . Chamberlain is not coming because she s out of state?

MS. WARREN: That s correct, Your Honor.

THE COURT: Okay, go ahead Ms. Schaeffer.

MS. SCHAEFFER: Thank you , Your Honor. The issue



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before the Court -- that's before the Court on summary

judgment motion today involved one three sentence provision

of the parties marital settlement agreement and that

provision is very short and it's set forth in the motions

for summary judgment, as well as in supplemental motions.

But basically, Your Honor, it says that The parties have

contributed to Florida's Prepaid College Plan and Maryland

College savings accounts. After the funds from the Florida

and Maryland college accounts have been depleted, husband

shall pay the cost of tuition, room and board, books,

registration fees and reasonable application fees instant to

providing each child with an undergraduate college education

for four consecutive years. The selection of which college

or university each child shall attend shall be made by

husband, wife and the child prior to application and prior

to enrollment.n

On September 2, 2011 the parties entered into a

consent order in which husband reaffirmed his obligations

under that Section 8 of the marital settlement agreement and

also Mrs. Chamberlain agreed that she would contribute

$9,000 of the child support per year that Mr. Chamberlain

agreed to pay through college toward those expenses.

In essence, Your Honor, the parties son is now a

senior in high school. He and his mother proposed -- and

these are undisputed facts. He and his mother proposed



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1 Auburn -- Auburn University, Virginia Tech and then later on

2 Georgia Tech. Mr. Chamberlain agreed and again it s

3 undisputed. In fact, it appears in paragraph 9 of the

4

Plaintiff s petition for relief that - - to

he agreed to

5 Auburn University. So that is the college that the three of

6 them have agreed upon so his obligations, assuming the child

7 attends -- applies and attends Auburn University, his

8 obligation is to pay those expenses in accordance with the

9 agreement and the consent order that was entered in

10 September of 2011.

11 The Plaintiff s pleadings are labeled as an Action

12 for Enforcement of the Agreement and Declaratory Judgement,

13 but actually if you read the pleadings what they re asking

14

the Court to do is to rewrite the parties agreement

15 concerning the college expenses and the Court can t do that

16 and the Court shouldn t do that. Mr. Chamberlain has

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entered into an obligation, an extraordinary obligation that

he s not required by law to do, so he - - the Court can t add

other terms to

that he has to apply to three schools or

six schools or eight schools or in-state or out - of - state.

Those -- none of those terms apply.

What applies is the obligation that there be a

unanimous selection of the university by the three - - the

two parties and their son. Auburn is the only unanimous

university agreed upon as well as once that university is




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chosen the obligation to pay is set forth in the agreement

and the consent order.

There are no genuine issues of material fact.

Read the pleadings , read the Plaintiff s pleadings and the

supplemental pleadings , there s all kinds of allegations

which we could spend hours/days refuting but none of those

facts are material to the parties obligations with respect

to the college expenses . The only material facts are

undisputed and they are the terms of the parties agreement

as I ve already read into the record and as set forth in the

pleadings . The parties and their son have agreed upon

Auburn University. Each side proposed o t her schools. The

only common university that they agreed upon was Auburn and

the college expenses for the agreed upon schools are paid --

to be paid pursuant to the terms of the agreement.

The relief that the Plaintiff asks for is that the

Court determine that the son can apply to other schools .

Well there s nothing stopping their son from applying to any

school that he wants to apply to. However, the Defendant s

obligation to contribute to those college expenses is

limited to agreed upon schools.

All of the other arguments and allegations and

requests by the Plaintiff are barred by the rules of

contractual interpretation as set forth in our memorandums ,

our memoranda . There are a couple of additional cases that




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aren't cited that I'd like to point the Court to, and the

first is Parker vs. Columbia Bank and that's 91 MD App. 946

and that's a 1991 case, and that deals with the duty of good

faith.

I don't know how anyone can argue that there was no

god faith here because since Mr. Chamberlain agreed to a

university.

So certainly it's not like he said I'm not

going to agree of your choices.

In fact, prior to even

filing of these pleadings he had agreed to Auburn. So

there's bad faith I think on the Plaintiff's part in filing

this action.

But in any event, there's certainly no lack of

good faith in his handling of this situation.

The other case -- case that I would like the Court

to refer which was Heist vs. Eastern Savings Bank and that's

165 MD App. at 144 and that's says The contract must be

construed to effectuate all of the terms as collected from

the entire agreement.

So we can't say that yes, yes pay for college but

no it doesn't have to be agreed upon.

That is one

provision, a three sentence provision and that provision

needs to be construed as a whole. And then the case of

Caston Construction vs. Rod Enterprises, 268 MD 318, also

says the same thing, You must construe a contract as a

whole.

You must give effect to every clause and phrase.

So Your Honor, I don't see -- I frankly don't see

why we're here. If you look at the relief that they've




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asked for, it s -- the Court - - they ve asked for attorney s

2 fees, an immediate hearing which apparently didn t happen,

3 and that the Court determine that the child can apply to

4

whatever universities he wants to.

The Court can -- the

5 child - - the Court doesn t need to determine that. That is

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not within the terms of the contract.

But certainly there s

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nothing to stop the child. But what is key is

8 Mr. Chamberlain s obligation to contribute to those expenses

9 and that is contingent upon it being an agreed upon

10 university by the parties and their son.

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So for those reasons, Your Honor, looking at the

12 terms of the parties agreement and undisputed facts, it s

13 clear that Mr. Chamberlain is entitled to judgment as a

14 matter of law and we would ask the Court to enter that

15 judgment and dismiss the parties -- the Plaintiff s

16 complaint.

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THE COURT: All right. Ms. Warren?

MS. WARREN: Thank you, Your Honor. I don t want

to take up too much of the Court s time because I think the

issue has been extensively briefed on either side.

THE COURT: Right.

MS. WARREN: Has the Court received a copy of the

reply to the supplemental or the supplemental statement of

grounds that was filed? That

THE COURT: I don t think so.




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MS. WARREN: Okay, let me see, because I printed

out an additional copy of that just in case.

THE COURT:

I have Mr. Schaeffer s reply to

Plaintiff s opposition to the Defendant s motion for summary

judgement.

MS. WARREN: Then after that there was a

supplemental statement of grounds

THE COURT: No.

MS. WARREN: that was filed and then we filed a

response to that supplemental statement.

THE COURT: They re not in the file.

MS. WARREN: Okay.

THE COURT: I mean I accept that you filed them,

they re just --

MS. WARREN: Right.

THt COURT: -- probably downstairs somewhere in

the Clerk s Office.

MS. SCHAEFFER: You don t have Mr. Schaeffer s

supplemental?

THE COURT:

I ll check again.

I don t remember

seeing it last night. When was it filed?

MS. SCHAEFFER:

It was filed December 30 th.

THE COURT: No. The last filing I have is from

November

22 nct

MS. SCHAEFFER: I can -- if the Court wants we can




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to consider. There are disputes of material fact and I

think what the Court needs to focus on are the emails

between the parties that lead up to the ultimate filing of

our complaint.

Now in those emails -- and I should start off by

saying the parties actually have three children.

This

instant dispute is just regarding their youngest son. Their

two older daughters were -- they were able to have them

apply to school, enroll in school without disagreement.

Both of the older children applied to the University of

Alabama while they were Maryland residents.

So the in-state

wasn t an issue there, and Mr. Chamberlain has complied with

all the terms of the agreement regarding payment of the

college expenses for the two older children.

In February of last year the Plaintiff sent

Mr. Chamberlain an email trying to initiate a conversation

regarding the college choice issue for their youngest child,

John.

The Defendant responded that he would not communicate

with the Plaintiff except in writing.

She had asked him if

they could talk over the phone or meet in person. The email

which the Court has copies of, both of the parties have

attested to the emails and attached them to their motion for

summary judgment and the response to the motion for summary

judgment.

In Mr. Chamberlain s initial response he claimed




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that the Plaintiff had created a fiscal crisis for him and

so because of that, John

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s school choices were going to be

limited. Then in March there was another series of emails

where Mr. Chamberlain and the child were communicating at

that point. The child provided Mr. Chamberlain with a very

detailed explanation of the schools that he was looking at

and specifically what he said is I'm considering applying

to Auburn and Virginia Tech, and then he went on to explain

why Virginia Tech was a better school for him, it was better

ranked academically, it would be a better choice for him.

He did not say that he was going to attend either one of

them.

This was just at the point where they were talking

about an application.

Most _notably Mr. Chamberlain's response to that e -

mail from John was and I'm quoting excerpts from the e - mail

but the Court has it.

Your approach to determining the

best fit for you seems well thought out. Of significance as

you mentioned is that it needs to be right for you even if

you change your major .

Please keep me updated on your

search. Remember you are in a position nicely to control

your destiny . There was no further communication after

March up until last summer, June of 2013.

In June , my client again initiated communication

to Mr. Chamberlain asking him -- saying that there hadn't

been a response and what were they going to do in regard to




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the application deadlines which were coming up.

Mr . Chamberlain responded with some vitriol again, but

ultimately cancluded Once the costs associated with

specific schools are known, we can determine which schools.

There is no where in there an affirmative acceptance or

denial of where the child is going to apply.

Ms . Chamberlain responded by forwarding Mr. Chamberlain an

email with the links to all of the different tuition pages

for the particular schools that the child was looking at and

that included Virginia Tech, Auburn and Georgia Tech.

Apparently Mr. Chamberlain ignored that email.

There were another series of emails between him and the

child where he tells him to limit his search to schools in

the Alabama area, a requirement that was never contemplated

by the agreement , that was never an issue for the parties

older children and has apparently been unilaterally grafted

onto the agreement by Mr. Chamberlain.

There was a final series of emails then in July of

2013 where Mr. Chamberlain once again states I don't

understand why we would send an application to a school

unless you provide some information concerning the financial

cost to attend. Now again, my client, the son had already

done that.

But also, the issue that Mr. Chamberlain is

aware of is that John , the child, can't determine what

scholarships he's entitled to. He can't determine what his




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financial aid package will be until he ' s able to actua l ly

apply to the school , that ' s the way it works. You send in

the application , they come back to you they tell you whether

you qualify for certain scholarships or aid or things l i ke

that.

THE COURT:

Why not just apply?

MS.

WARREN

I ' m sorry?

THE

COURT:

Why not just apply

--

MS.

WARREN:

Because

pursuant to

the terms

--

THE

COURT:

--

at this

point .

MS.

WARREN:

--

of the agreement

it says that

the

parties

must

agree prior

to

application and

prio r to

enrollment. The agreement is very specific on that point.

Now I think there are a lot of problems with the agreement,

but that ' s what the second sentence of this two - pronged

obligation for the Defendant says.

THE COURT: The third sentence makes no sense at

all and I don ' t - -

MS. WARREN: Your Honor --

THE COURT: I don ' t know - -

I .

shouldn't say that .

I don't know if any of you were in v olved in drafting it , but

-- and so I apologize.

MS. WARREN:

I personally was n ot and I don't

think Mr. Brown was involved.

THE COURT:

It says "The selection of which



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college or university each child shall attend shall be made

2 by husband , wife and child prior to application . That

3

makes no sense.

I mean you don't select a school to attend

4

prior to application.

5

MS. WARREN: I agree.

6

THE COURT: You select which school to attend , you

7

apply and then you get your financial package and then you

8

make your determination.

I mean it just - -

9

MS. WARREN: And Your Honor , one of the issues

10 that we have and one of the reasons why this case came to

11 the Court in the posture that it ' s in is that John isn ' t

12 even able to determine where he'll be accepted. Now

I

can

13 say his acceptance at Auburn is fairly likely. He believes

14 that he will be accepted at Virginia Tech but that's not

15 clear , and it could be that he doesn't get be

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THE COURT: Has he applied?

MS. WARREN that he doesn't get in.

THE COURT: Has he applied?

MS. WARREN: Your Honor, I don't think that that's

before this Court on that issue. I can't -- I can't offer

any testimony on that.

THE COURT: So the relief

one of the requests

for relief is that he be authorized to app l y to schools.

MS. WARREN: Because Your Honor, the risk that he

runs is that if he applies and if Mr . Chamberlain maintains



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things that lawyers who are drafting an agreement would kno

to include if they wanted to make that obligation contingent

on some other step that had to happen.

Now very interestingly , the Defendant has raised

in his motion for summary judgement this whole -- of an

agreement to agree and enforceability and can you enforce a

agreement to agree? And I agree that the second sentence in

that provision , the sentence regarding the parties needing

to agree on the college prior to application and prior to

enrollment does present enforceability issues. However,

this contract has a severability clause and the severability

clause provides that - - let me pull it up .

THE COURT: Does it require agreement of the

husband, wife and child? I'm not even sure it does.

MS. WARREN: Does the -- the separation agreement

itself require agreement?

THE COURT: I ' m reading the . last sentence in

paragraph 8. It says Each shall --

MS. WARREN: The selection of which col l ege.

THE COURT: The selection of which college or

university that each child shall attend shall be made by

husband , wife and child .

MS. WARREN: Right.

THE COURT: Again, it doesn't require you to

(indiscernible - 2:15:05) necessarily.




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MS. WARREN: And well, Your Honor that s why we --

THE COURT: I mean --

MS. WARREN: sought a declaratory judgment,

because I think there are lots of ambiguities with this

language.

THE COURT: Right.

MS. WARREN: Our position is that the Defendant is

obligated to pay for the college expenses regardless of

whether or not there s an agreement. However, if there were

an alternative interpretation of that and there is on the

Defendant s side, then you have a situation where the child

is in limbo like he is right now and there s nothing being

paid.

So that s why we re seeking an interpretation on

this issue. However, the Defendant raised the Horsey

(phonetic) case.

THE COURT: I m not sure the child is in limbo

yet . I think he can apply anywhere he wants.

MS. WARREN: Well, there s certainly going to be

an issue though when it comes time to actually accept. You

know, assuming he is admitted somewhere there is going to b

that issue and I think that there is an issue now in

regarding -- in regard to his ability to apply if he seeks

to enforce the contract regarding the Defendant s obligation

to contribute to the expenses .




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Now in regard to the Horsey case and the idea that

the Court could sever the portion of the agreement that's

unenforceable, what would happen if the Court were to apply

what happened in Horsey, which was an alimony case regarding

a separation agreement with a provision where the husband

was obligated to pay alimony and then it said something to

the effect of Ho wever the parties will in the future agree

to a reasonable reduction in alimony, and what the Court

said is No, we can't do that, that's an agreement to agree,

so what we're going to do is strike out just that provision

and the remaining provision, namely husband's obligation to

pay alimony, stays the same without modification.

So if that were the case and if the Defendant's

position in regard to the motion for summary judgment and

the issues that they've just raised were to be accepted by

the Court, what would happen is that last sentence would be

struck out and the Defendant would still have an obligation

to pay for the college expenses.

So that again creates an issue as to why this is

not at least -- at the very least not an appropriate

situation for summary judgment.

Now Your Honor, as I stated, our position is that

there was never an agreement that the child was going to

attend Auburn. He sent an email saying that Auburn was a

consideration. However, he very clearly noted that Virginia


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Tech was his primary choice.

Essentially, one of the ways

that this contract could be interpreted and our concern is

that the child would be barred from receiving any

contribution towards his expenses if were to just to go out

and apply . And so then we have issues about deadlines

expiring , him not being able to do early admission or things

like that because we ' re trying to get this situation

resolved and that's why we had requested an expedited

hearing.

Your Honor, we also addressed the issue of an

applied duty of good faith and it's our position that there

has not been a good faith effort by all the parties involved

to try and resolve issue and that goes back to looking at

the emails, and if you see the communications that the

parties had , the way this was left prior to the complaint

being filed was Mr. Chamberlain saying I don't know what

you want me to do. I can't give you any kind o f response

until I know what the expenses that I'm to be obligated to

pay are. And that creates an impossible situation for

everybody else involved .

The Defendant has argued that you can't file a

suit based on an implied duty of good faith.

I absolutely

agree, however , the case law is clear that all contracts in

Maryland have this implied duty of good faith so long as it

doesn't conflict with any other provisions in the agreement.




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Now in terms of the motion for summary judgment,

the Court simply at this point just doesn't have enough

information to determine (a) whether there was an agreement

on where the child was going to apply and/or enroll, which

is what the language of the contract says, nor does the

Court have enough information to determine whether there

really was a good faith attempt to agree, because when you

look at the emails we contend that there wasn't, that there

was a lot of arguing back and forth, a lot of sniping, but

ultimately, Mr. Chamberlain would not give a yea or nay

because he was requesting financial information.

And Your Honor, there is also a third issue

regarding Mr. Chamberlain's refusal to provide his address

or his financial information. One of the issues that he

raised right off the bat with this college choice is You

placed me in this fiscal crisis.

I can't afford it,

essentially. And so requests were made both through

counsel and with a Subpoena for financial information and

then for residential information (a) because it's required

in the agreement, there's a provision that says the parties

will keep each other informed of their address, and (b)

because it ma y open up the door to the child to be able to

apply to more scho o ls assuming that Mr. Chamberlain doesn't

live in Alabama where he would qualify for in-state tuition.

We have received nothing in regard to that




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response , and in fact , there was a motion to quash that was

filed in response to the Subpoena that had been sent out.

And that again goes to the good faith issue.

So Your Honor , just to wrap it up , for the reasons

stated in the reply motions that have been filed and that

we ' ve just been discussing right now, this is clearly not a

case for summary judgment .

I think it's a fairly complex

case that needs some serious contractual interpretation

regarding what the parties obligations are under the current

agreement, and , if the Court were to accept t he Defendant's

argument even , the Defendant has raised a legal issue that '

not appropriate for summary judgment as to whether or not

this contract is severable and where the severance would be

made .

Is it that the Court just severs that last sentence

where it says The parties agree to agree, or is it that

the Court takes some other action in regard to that

particular provision.

So Your Honor , we would request that the motion

for summary judgment be denied.

THE COURT: Okay.

MS. SCHAEFFER: I'd like to address a couple of

other points.

The Court ra i sed the issue of does it require

-- does Section 8 require unanimity .

It says and, so I

think it does require all three of them - -

THE COURT: Probably.




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MS. SCHAEFFER: -- to agree.

THE COURT: But I don t think it s clear.

Probably, more likely than not.

MS. SCHAEFFER: We weren t involved in the

drafting of it. Our firm didn t represent Mr. Chamberlain

at the time but I think the Court has to interpret the

agreement in a reasonable manner. And when you get to the

severability issue --

THE COURT: But is it reasonable -- what if they

never agree?

MS. SCHAEFFER: Well, but that s -

THE COURT: Then he doesn t go to college?

MS. SCHAEFFER: You don t have that situation,

Your Honor. They have agreed.

THE COURT: Okay. At a minimum your client agrees

to pay for -

MS. SCHAEFFER: Auburn.

THE COURT: Costs of Auburn?

MS. SCHAEFFER: Right, and I

THE COURT: Wouldn t that -- would you then also

guess read into that if a child were to go to school at the

I don t know, the University of Maryland and that exceeds

the cost of Auburn, that he would at least pay up to the

Auburn level?

MS. SCHAEFFER: I think they could negotiate that.



Ser v i ng Mar y land, Wash i ngton, and Virginia

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the parties are bound by and that's what the Court -- the

only thing that the Court can enforce.

So for all of those reasons, Your Honor, we would

ask that the Court grant summary judgment.

I do -- one more

point I want to make.

This obligation, this implied

obligation of good faith, there's no question that that

appeared -- that applies to all contracts, but the cases and

these are cases that I cited to earlier, Parker vs. Columbia

Bank case says that This duty applying to the applied duty

of good faith, simply prohibits one party to a contract from

acting in such a manner as to prevent the other party from

performing his obligations under the contract. That's the

implied duty of good faith.

The implied duty of good faith

does not say that he has to agree to two of the three

selections or three of the five selections. He has agreed

to one of the selections. He has not prohibited his ex-wife

from performing her obligations under the contract.

So he's in total compliance with the implied duty

of good faith.

So that's kind of a red herring, Your Honor. He

has acted in good faith and it's worn out by the affidavits

and the emails which nobody is disputing. They've submitted

them and we ' ve submitted them and we would ask the Court to

rule in our favor and grand summary judgment.

THE COURT: All right thank you.

You know I'm no




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the Defendant s position

THE COURT:

So here s what my options are.

For

the case to the Office of Case Management, it goes down to

Erin McCarthy s office, she takes a look at it. Chances are

it will be set for a Scheduling Conference.

Then whoever

has that would determine whether mediation is appropriate.

I don t think we can compel mediation in this kind of case,

but it s something you all ought to talk about. That s

option one. That would build in some time for discovery and

perhaps a Pretrial Conference to see if the case can be

settled and then if it s not, set for trial. Then it would

be set for trial.

The other option I guess potentially is just to g

ahead and give you you know a trial date on the -- what s

pending , is a motion to enforce and if there s a request fo

declaratory -- subject to declaratory relief.

I m okay with

either of those. So if you all want to weigh in on that

I ll give yo u a chance. Otherwise, I ll just discuss it on

my own , Erin McCarthy .

MS. SCHAEFFER:

Your Honor, since I m not primary

counsel on this case, would it be okay if I spoke to my

client?

THE COURT: Of course.

(Counsel and Plaintiff confer.)

THE COURT:

So the motion for summary judgment is

HUNTREPORTINGCOMPANY



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THE COURT: And if either side wants to weigh in

2 on what track we ought sort of take with the case, shoot me

3 an e - mail with a copy to the other side .

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MS. SCHAEFFER: Okay.

THE COURT: Okay .

MS. WARREN: Could you - -

THE COURT: I m not saying I m going to abide by

8 what your wishes are but I ll take them into account.

9

MS. SCHAEFFER: That s perfect. Thank you,

10

Your Honor.

11 THE COURT: Okay.

12

MS. WARREN: If he wants to let me know in advance

13

(indiscernible -

2:30:17)

something that we can agree to.

14 Either way. I m not talking about resolving the entire

15 case, I m talking about the facts of the case.

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a

nice

MR. CHAMBERLAIN: How about Auburn University?

THE COURT: Okay, I will see you guys later. Hav

day.

MS.

SCHAEFFER:

Thank you,

Your Honor.

MS.

WARREN: Thank

you.

THE

COURT:

Yes.

THE

CLERK:

All rise.

(At

2:30

p.m.

proceedings

concluded.)




410 -7 66-HUNT (4868)

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Summary Judgment Transcript

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