¶1dissenting:
¶2I respectfully dissent because I do not believe that the trial judge erred in denying specific performance of the agreement to pay spousal support. Janet filed a separate action to reopen the divorce proceedings, which was also dismissed— that dismissal was not appealed. The effect of permitting reopening the divorce proceedings would have been to allow her to seek alimony. Janet has abandoned this alternative remedy.
¶3*519SPECIFIC PERFORMANCE OF THE CONTRACT FOR POST-DIVORCE SPOUSAL SUPPORT
¶4Alimony and post-divorce spousal support are quite different. In appropriate circumstances, a court may award alimony incident to a divorce. See Maryland Code (1984, 1991 RepLVol., 1993 Cum.Supp.), Family Law Article, § 11-101. Post-divorce spousal support may not be granted absent an enforceable contract between the parties. See Bellofatto v. Bellofatto, 245 Md. 379, 226 A.2d 313 (1967); Bebermeyer v. Bebermeyer, 241 Md. 72, 215 A.2d 463 (1965); Schroeder v. Schroeder, 234 Md. 462, 200 A.2d 42 (1964); Dickey v. Dickey, 154 Md. 675, 141 A. 387 (1928). Agreements to pay spousal support require consideration to be valid. See Frank v. Frank, 203 Md. 361, 101 A.2d 224 (1953). Janet’s suit for specific performance alleges she and her husband entered into an enforceable contract that Mark would pay her post-divorce spousal support.
¶5The majority quotes from portions of a four-page longhand letter from Mark to Janet which states in part: “I could send you $400.00 or $500.00 every two week[s] 24 times a year or $10,000.00 + per year as long as you need it or more[.]” The majority then concludes “[t]he theory of the instant complaint is that this portion of the note evidences a contract to pay spousal support.” 335 Md. at 504, 644 A.2d at 512 (1994). Mark was correct in contending that the letter was not an enforceable contract. That letter could not evidence a contract to pay spousal support for several reasons. First and foremost, that offer was apparently intended by Mark, and assumed by Janet, also to include support for the parties’ son who at the time was still a dependent minor. There is no indication of how much of Mark’s payments were to be allocated for child support. In her divorce complaint and at the divorce hearing, Janet acknowledged under oath that there was an agreement between Mark and her that Mark be “charged generally” with their minor son’s support. That “agreement” was incorporated into the divorce decree, and Mark was “charged generally with the support of the parties’ minor child____” Mark’s $400 or $500 every two weeks for *520spousal and child support was not a contract to pay a specific sum for spousal support. Second, Mark’s letter makes no mention of a divorce and there is no clear indication that the pre-divorce support payments were intended to continue after the divorce and be converted to permanent spousal support. Finally, this letter merely constituted a unilateral indication of what Mark intended to do—there was no consideration or mutual promises by Janet which would make this letter a contract. In the instant case, Mark made a motion to dismiss in which he pointed out that the four-page letter was not a contract and was at best his initial proposal “prior to settlement of marital property disputes____” It was in response to this motion to dismiss that Janet changed her theory of the case and for the first time made the factual allegations that raise the issues now before this Court. If, as the majority concludes, Janet’s specific performance action was grounded on a portion of Mark’s letter containing a unilateral offer to pay $400 or $500 every two weeks which could have encompassed both spousal and child support, then the trial judge certainly did not abuse his discretion in refusing to enforce this vague, indefinite “contract” to pay spousal support. This “contract” also lacked any consideration on Janet’s part. In her answer to Mark’s motion to dismiss, Janet did, however, indicate that subsequent to this letter she and Mark had more specific contractual negotiations.
¶6The primary issue raised on appeal revolves around the pleading filed by Janet in response to Mark’s motion to dismiss. It is in that pleading that Janet alleges she was “dominated” by Mark and that she complied with Mark’s suggestion that she obtain a divorce because she was oppressed by Mark. The majority quotes extensively from that pleading which formed the basis of Janet’s defense to Mark’s motion to dismiss. In that same pleading, Janet claims Mark contracted to pay spousal support and she acknowledges the following:
“The consideration for the [contract to pay spousal support] was that Plaintiff [Janet] would prosecute a divorce action in *521the Circuit Court for Frederick County in which she would make no claims for any form of financial relief. Plaintiff complied with her obligations under the parties’ agreement.”
¶7The trial judge quite properly recognized that seeking a fraudulent divorce through perjured testimony constituted part of the consideration for the alleged spousal support agreement. The other part of the consideration was foregoing any claim for alimony in the fraudulent divorce action. The Court of Special Appeals recognized that the consideration for Mark’s contract to support Janet was “(1) the act of perjury itself (ie., the prosecution of the divorce action, which was grounded in adultery), and (2) an act that occurred as a direct result of said perjury (ie., in the divorce action, her making no claim for any form of financial relief).” Schneider v. Schneider, 96 Md.App. 296, 308, 624 A.2d 1319, 1326 (1993) (emphasis in original). There can be no question but that a contract based on the consideration that the promisee will obtain a divorce, to which the parties are not entitled, and will do so by committing and suborning perjury, is an illegal contract. Promising not to include a claim for alimony in an improperly obtained divorce is a part of the illegality. Janet sought one of two alternative remedies based on this illegal contract. She was primarily seeking to obtain the full benefit of her illegal bargain. She wanted Mark to pay her contractual spousal support for the rest of her life. This is the relief the majority feels Janet is entitled to if she can prove “oppression” or “great disadvantage.” Her alternative request, which was not pursued on appeal, was to reopen the divorce so she could have made a claim for alimony.
¶8If Janet is in pari delicto in the illegal contract, the majority recognizes she is not entitled to any contractual relief. If she is not in pari delicto, she may be entitled to some relief.
“A plaintiff is not regarded as in pari delicto with the defendant, if, even though he knew or had reason to know that the bargaining was illegal or immoral, he was induced to participate in it by fraud or duress or by the use of *522influence derived from superior knowledge, mental power, or economic position.”
¶96A Arthur L. Corbin, Corbin on Contracts § 1537, at 826 (1962).
¶10Janet claims she is not in pari delicto, and her choice of relief is specific performance, which would give her the full benefit of her illegal bargain. This the majority would allow. Janet’s fall back position—which I would agree with—is that if she can prove “oppression” or “great disadvantage,” she ought to get restitution, that is, have restored to her what she gave up—the right to present her claim for alimony. Unfortunately, if Janet had any right to reopen the divorce proceedings and seek alimony, she has abandoned that option.
¶11Most of the recognized authorities in the field of contracts' indicate that generally the appropriate remedy for a person not in pari delicto to an illegal contract is restitution or rescission, not enforcement of the illegal contract. For instance, in Samuel Williston, 14 A Treatise on the Law of Contracts § 1631A, at 46-47 (Walter H.E. Jaeger ed., 3d ed. 1972), the commentator made the following observation:
“Even a guilty party, if not thought to be in pari delicto, and even an equal participant in the illegality, if public policy demands it, is often allowed relief by way of restitution or rescission, though not on the contract.” (Footnotes omitted) (emphasis added).
¶12That treatise also recognizes the following:
“§ 1789. Parties Not in Pari Delicto. In some cases rescission of an illegal transaction and recovery of consideration is allowed beyond the limits stated in the preceding section [which states that there is no restitution for illegal conduct]. This is true where the parties are said not to be in pari delicto. The typical case is where one party acts under compulsion of the other.” (Footnotes omitted) (emphasis added).
¶1315 Williston, A Treatise on the Law of Contracts § 1789, at 357.
*523“But there are numerous cases in which Restitution will be adjudged even though a judgment for money damages would be refused. The court will say that ‘contract’ will not be enforced, but that the plaintiff will be permitted to ‘rescind’ (or to disregard) the contract and will then have a right to his property or money back, or to the reasonable value of a performance rendered by him and received by the defendant.”
¶146A Corbin on Contracts § 1535, at 822.
¶15It is interesting to note that none of the illegal contract cases cited by the majority granted specific performance or enforcement of an illegal contract as the appropriate remedy. In all of the illegal contract cases, where the plaintiffs were entitled to relief because they were not in pari delicto, the relief was restitution or rescission. See Cronin v. Hebditch, 195 Md. 607, 74 A.2d 50 (1950); Maskell v. Hill, 189 Md. 327, 55 A.2d 842 (1947); Lord v. Smith, 109 Md. 42, 71 A. 430 (1908); Du Pont v. Du Pont, 103 A.2d 234 (Del.1954).
¶16Messick v. Smith, 193 Md. 659, 69 A.2d 478 (1949) is a case cited and relied on by the majority. In Messick, the plaintiff builder sought and recovered in the lower court the full amount due under an illegal “time and material” contract he had with the defendant. This Court apparently recognized that the parties were not in pari delicto but, nevertheless, limited plaintiffs recovery by not allowing the plaintiff the full benefit of his bargain, or even the cost of construction. The plaintiff was only allowed to recover the amount which he falsely represented to the government was the contract price. I would also rely on the cases cited by the majority permitting recovery where there was an illegal contract because the parties were not in pari delicto, but all of those cases permitted only restitution or rescission. The majority does not cite a single case which permits specific performance of an illegal contract in circumstances such as the instant case.
¶17The trial judge did not abuse his discretion in refusing the equitable remedy of specific performance. It was not an abuse of discretion for the trial judge to refuse to require *524Mark to pay post-divorce spousal support to Janet for the rest of her life merely because she kept her part of the bargain and obtained a fraudulent divorce by perjuring herself and suborning the perjury of a corroborating witness. As this Court has stated:
“A court of equity will not require specific performance [of a separation agreement] as a matter of course. It will evaluate the conduct of the parties, the circumstances and the equities of each particular case. It will not use its discretion to grant the remedy unless its exercise will subserve the ends of justice and the result of its assistance is fair, just and reasonable.”
¶18Zouck v. Zouck, 204 Md. 285, 296, 104 A.2d 573, 577-78, 105 A.2d 214 (1954). Specific performance could properly have been denied either because there were insufficient allegations of an enforceable contract or because this spousal support contract, founded upon illegal consideration, should not be specifically enforced in an equity court.
¶19If Janet establishes there was a contract and she was not in pari delicto because of oppression or great disadvantage, she may have been entitled to relief by way of restitution—to have restored what she gave up, i.e., her claim for alimony. She should not be entitled to reap the full benefit of her illegal bargain. A bargain conditional, even in part, on obtaining a perjured divorce is not a bargain that ought to be enforced by a court of equity. I respectfully dissent.