Andrulonis v. Andrulonis

WRIGHT, Judge. On December 4, 1995, the Circuit Court for Baltimore County granted appellee, Mary I. Andrulonis (“Wife”), an absolute divorce from appellant, Joseph F. Andrulonis (“Husband”). As part of the judgment, Husband was ordered to ⁶⁰⁶ pay alimony in accordance with the parties’ separation agreement, granting “Wife permanent alimony in the amount of four thousand dollars ($4,000.00) per month ... until [Husband] terminates his employment and begins to receive termination, retirement or disability benefits____” In addition, “[e]ach party waivefd] his or her right to have any court assume jurisdiction for the purpose of modifying this provision.” On July 27, 1998, Husband filed a complaint (“1998 Complaint”) for modification and/or termination of spousal support provisions, pursuant to Wife’s remarriage. Wife filed a motion to dismiss Husband’s 1998 Complaint, which the court granted on December 3, 1998.

Husband subsequently appealed to this Court, but was unsuccessful, as we held that the circuit court correctly “concluded that the alimony provision contained in the parties’ divorce decree is not modifiable.” Andrulonis v. (Andrulonis) Reilly (“Andrulonis I”), No. 5526, Sept. Term, 1998, slip op. at 3, 128 Md.App. 703 , 128 Md.App. 711 (Ct. of Spec.App. Sept. 20, 1999). Thereafter, on July 30, 1999, the circuit court issued an immediate earnings withholding order directing Husband to pay alimony by way of a wage lien. On May 6, 2008, Husband filed another complaint (“2008 Complaint”), wherein he asked the court to strike and/or withdraw its immediate earnings withholding order and sought judgment against Wife “for three (3) years of wrongful and unlawful taking of monies thereunder.” Once again, Wife filed a motion to dismiss. A hearing was held on November 14, 2008, after which the court granted Wife’s motion.

This appeal followed. The single issue before this Court is whether the circuit court erred in dismissing Husband’s 2008 Complaint. 1 For the reasons set forth below, we reverse the trial court’s ⁶⁰⁷ judgment and remand for proceedings consistent with this opinion. Facts and Procedural History The parties were married on July 18, 1959, and separated thirty-two years later, on or about November 2, 1991. On August 23, 1995, they executed a separation and property settlement agreement (“Agreement”), wherein Husband agreed, under Paragraph II, to: pay Wife permanent alimony in the amount of four thousand dollars ($4,000.00) per month, to commence upon the date of the signing of this Agreement.

Husband agrees to pay Wife alimony until he terminates his employment and begins to receive termination, retirement or disability benefits, at which time Wife shall receive a fifty percent (50%) share of the total amount of Husband’s Termination Payments, Extended Termination Payments, Temporary Disability Payments, or other type of post-employment wages, income, benefits or payments.... [ ] Each party waives his or her right to have any court assume jurisdiction for the purpose of modifying this provision of this Agreement. In addition, Paragraph VIII of the Agreement stated that, “[i]n express exchange for the consideration provided Wife in §§ II and III.A of this Agreement, Wife waives any and all right, title and interest in ‘The 702 Lounge.’ ” Paragraph XII provided that “[t]he provisions concerning alimony and health insurance coverage shall be merged in any decree of absolute divorce obtained by either party.” On December 4,1995, the circuit court issued a judgment of absolute divorce, which “ORDERED that Joseph F. Andrulonis pay alimony unto Mary I. Andrulonis in accordance with [the aforementioned] Paragraph II of the Agreement between the parties, not subject to Court modification.” No exceptions were filed and neither party appealed the final divorce judg ⁶⁰⁸ ment. Furthermore, no modifications were made to the parties’ Agreement. On May 9, 1998, Wife remarried.

On July 27, 1998, Husband filed the 1998 Complaint, seeking “modification and/or termination of spousal support provisions in [the] divorce decree.” According to Husband, the divorce court “erred when it su[ ]a sponte improperly ordered in the decree that the provisions of spousal support be ‘not subject to Court modification.’ ” In addition, Husband “alleged that the parties had agreed that they would not remarry, and that the parties’ financial circumstances had altered considerably.” Andrulonis I, supra, slip op. at 5. Thus, Husband asked the court, pursuant to Maryland Code (1984), Family Law Article (“F.L.”), “Sect. 8-101; Sect. 8-103(b) and (c);[ 2 ] Sect. 8-105(b); Sect. 11-101; Sect 11-106; Sect. 11-107; and Sect. 11-108,[ 3 ] to modify the amount of and/or to terminate further payment of Spousal support by [Husband] to [Wife] ordered in the Divorce Decree dated November 30, 1995.” Wife filed a motion to dismiss, which the court granted. Subsequently, ⁶⁰⁹ the circuit court dismissed Husband’s 1998 Complaint with prejudice. Husband appealed to this Court on December 17, 1998.

In affirming the circuit court’s judgment, we stated: [Husband] asserts that the trial court should have terminated or modified the alimony provision, despite the decree’s stipulation that it is “not subject to Court modification.” While appellant correctly states that, because the alimony provision in the Agreement was merged into the divorce decree, that portion of the Agreement has been extinguished, [Husband] is incorrect to urge that such merger necessarily permits the lower court to modify the alimony agreement. Rather, merger and incorporation simply determine the vehicle by which the provision may be enforced. When one provision of a legal document is incorporated into another, the former “shall be taken as part of the document in which the declaration is made as much as if it were set out at length therein.” Black’s Law Dictionary 391 (5th ed.). By contrast, when a provision of a legal document is merged into another, the former is extinguished by its “absorption into” the latter, and the merged document “ceases to have an independent existence.” Id. at 511.

In the case sub judice, the alimony provision of the Agreement was merged into the divorce decree, thereby substituting the parties’ rights regarding alimony in the Agreement for those in the divorce decree. As a result, the only legal document by which the alimony provision may be enforced is the divorce decree. The decree adopts in full, however, the Agreement’s provision concerning alimony. Ergo, the substance of the alimony arrangement between the parties remains unchanged.

As a general rule, courts have the discretion to modify an alimony provision set forth in a settlement agreement. See F.L. § 8-105(b).... The court’s authority to modify an alimony agreement is limited, however, by F.L. § 8-103(c).... ⁶¹⁰ In the case at hand, the third paragraph within the alimony provision of the Agreement provides that “[e]ach party waives his or her right to have any court assume jurisdiction for the purpose of modifying this provision of this Agreement.” The statement is a valid bar to modification under F.L. § 8-103(c)(2) because it makes clear that the modification prohibition applies to the alimony section of the Agreement. See [Shapiro v.] Shapiro, 346 Md. [648,] 662-63, 697 A.2d 1342 [(1997)].

Consequently, the judge who drafted the parties’ divorce decree was correct to include the alimony provision, without modification, in the divorce decree. Likewise, the clause immediately following the alimony provision in the divorce decree, providing that alimony is “not subject to Court modification,” is also a valid prohibition on the modification of the arrangement____ [Husband] ... insist[s] that equitable considerations should permit modification of the amount of alimony that he is presently paying____ Pursuant to the alimony language adopted in the divorce decree, [Husband] must pay [Wife] alimony in the amount of $4,000 per month until he terminates his employment. After terminating his employment, [Husband] will be obligated to pay [Wife] fifty percent of his post-employment income. Nothing in the alimony provision provides that the amount of alimony shall be modified under other circumstances.

In addition, no other portion of the Agreement provides that modification is permitted if the parties remarry or if their financial circumstances change. Consistent with the Agreement, the divorce decree does not provide for modification of alimony, whether for equitable reasons or otherwise. Andrulonis I, supra, slip op. at 9-14. On July 30, 1999, the court issued an immediate earnings withholding order directing Husband to pay alimony by way of a wage lien.

Husband petitioned the Court of Appeals for certiorari. On December 23, 1999, the Court of Appeals denied Husband’s ⁶¹¹ petition, stating that “there has been no showing that review by certiorari is desirable and in the public interest.” On February 21, 2003, the Court of Appeals decided Moore v. Jacobsen, 373 Md. 185 , 817 A.2d 212 (2003), and held that, “unless an agreement states explicitly that alimony survives a party’s remarriage, alimony terminates on the marriage of the recipient spouse.” Id. at 187 , 817 A.2d 212 . According to the Jacobsen Court, “the provision in the parties’ separation agreement obligating the husband to pay alimony to the wife terminated upon the wife’s remarriage, despite the fact that the agreement provided that alimony was ‘non-modifiable’ by a court and payable for a term of seven years, but did not make any express reference to [F.L.] § 11-108 or the effect of remarriage of the wife upon the right to receive alimony.” Id. Relying on Jacobsen , Husband filed his 2008 Complaint.

Husband asked the court to strike and/or withdraw the immediate earnings withholding order issued in 1999 and sought “judgment against [Wife] for three (3) years of wrongful and unlawful taking of monies thereunder.” According to Husband, their Agreement did not “specifically contain in writing the required ‘explicit provision’ that alimony ‘shall not terminate upon remarriage,’ ” pursuant to Jacobsen and, therefore, the court should invalidate the wage lien and order Wife to return the alimony paid for the preceding three years, totaling $144,000.00. (Emphasis omitted). Husband also noted that his 1998 Complaint was raised and decided under F.L. § 8-103, while his 2008 Complaint was brought pursuant to F.L. § 11-108. On July 2, 2008, Wife filed a motion to dismiss Husband’s 2008 Complaint.

On July 24, 2008, Husband filed an opposition to that motion. Through a motions ruling dated August 8, 2008, the circuit court, Hon. John F. Fader, II, invited each party “to file an amendment to their respective motions ... no later than Tuesday, September 23, 2008.” Judge Fader determined that Husband’s 2008 Complaint, seeking to strike the earnings withholding order, “is a distinction without difference from the issue previously litigated in this case as to the ⁶¹² agreement between the parties and whether that agreement by the Husband to pay to the Wife alimony in the amount of $4,000 per month survived her remarriage.” Thus, Judge Fader asked the parties “whether there is any equitable doctrine that allows the reported and now controlling Jacob-sen case to trump and foreclose the issue that is the law of this case,” which was stated in Andrulonis I. Both parties submitted supplemental memoranda. On October 2, 2008, Judge Fader requested a hearing on the matter.

In a written memorandum, Judge Fader laid out the issue to be decided: [Wife] claims that the law of the case precludes this court’s revisit to determine anew this issue, as this court previously decided the issue against the payor. [Husband] claims that a decision by the Court of Appeals in 2003, decided subsequent to this court’s decision on the issue, is in conflict with a prior decision by this court and the newer and subsequent Court of Appeals decision allows him to bring anew his contention to the court that alimony should be terminated and to recoup money he should not have had to pay over many years. A hearing was held on November 14, 2008, with the Hon. Michael J. Finifter presiding. After hearing argument on the matter, Judge Finifter ruled: “[T]here is no equitable doctrine that allows the controlling case of Moore v. Jacobs[e]n to trump and foreclose the issue that is the law of this case.” On November 29, 2008, the court dismissed Husband’s 2008 Complaint.

Husband timely appealed. Standard of Review ‘We review de novo a trial court’s granting of a motion to dismiss,” Monarc Constr., Inc. v. Aris Corp., 188 Md.App. 377, 384 , 981 A.2d 822 (2009) (citation omitted), to “‘determine whether the complaint, on its face, discloses a legally sufficient cause of action.’ ” Schisler v. State, 177 Md.App. 731, 743 , 938 A.2d 57 (2007) (quoting Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 72 , 716 A.2d 258 (1998)). “In conducting our analysis, we ... ‘accept all well ⁶¹³ pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party.’ ” Gosain v. County Council for Prince George’s County, 178 Md.App. 90, 95 , 940 A.2d 1132 (quoting Sprenger v. Pub. Serv. Comm’n of Md., 400 Md. 1, 21 , 926 A.2d 238 (2007)), cert. granted, 405 Md. 62 , 949 A.2d 651 (2008). “Ultimately, ‘dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.’ ” Monarc, supra, 188 Md.App. at 384 , 981 A.2d 822 (quoting Adamson v. Corr.

Med. Servs., Inc., 359 Md. 238, 246 , 753 A.2d 501 (2000)). “ ‘[Because we must deem the facts to be true, our task is confined to determining whether the trial court was legally correct in its decision to dismiss.’ ” Id. (quoting Adamson, supra, 359 Md. at 246 , 753 A.2d 501 ); see also Fioretti, supra, 351 Md. at 72 , 716 A.2d 258 (“The proper standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct.”) (Citations omitted). Discussion Husband argues that the circuit court erred in dismissing his 2008 Complaint.

Relying on Jacobsen and F.L. § 11— 108(b), Husband asks this Court to “strike and/or withdraw” the earnings withholding order, arguing that his wages are continuously “being wrongfully withheld” because Wife remarried in 1998. Meanwhile, Wife argues that Jacobsen is