Bergeris v. Bergeris

MEREDITH, J. On April 3, 2012, the Circuit Court for Montgomery County conducted a hearing concerning a complaint for absolute divorce filed by Nick Bergeris (“Husband”), appellant. Husband’s request for a divorce based on a twelve-month separation was opposed by Jeanine Bergeris (‘Wife”), appellee, who asserted that she had continued to have sexual relations with Husband by way of “phone sex,” ie., sexually explicit or provocative telephone conversations and text messages. Section 7-103(a)(4) of the Family Law Article (“FL”) of the Maryland Code (1984, 2012 Repl. Vol.) provides that a court “may decree an absolute divorce” on grounds of a “12-month separation, when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.” Husband conceded that he had engaged in sexually explicit telecommunications with Wife during the twelve months preceding his claim for a divorce, but he testified that there had been no physical contact of a sexual nature with Wife during that period when they lived separate and apart.

At the close of evidence presented by Husband with respect to his grounds for an absolute divorce, the court ruled that he could not prevail, and the court dismissed the complaint. The court ruled that, because Husband conceded that he and Wife had engaged in phone sex, the court was precluded from finding that they had lived “without cohabitation” during the time they lived separately for the 12 month period required by FL § 7-103(a)(4). Husband noted this appeal. QUESTION PRESENTED Husband presents a single question for our review: ⁷³ Whether the Circuit Court erred, as a matter of law, when it denied Appellant’s Complaint for Absolute Divorce when the parties met the statutory requirements for a divorce?

We conclude that the court erred when it dismissed Husband’s complaint for divorce based on the court’s finding that phone sex was a form of cohabitation within the scope of FL § 7-103(a)(4). Accordingly, we reverse the judgment of the circuit court and remand the case for further proceedings. FACTS AND PROCEDURAL HISTORY Husband and Wife married in Maryland on January 9, 2006. On June 30, 2010, Husband and Wife separated, and Husband moved out of the marital home because Wife had obtained a protective order against Husband.

On July 6, 2010, Husband filed a complaint for limited divorce on the grounds of constructive desertion and voluntary separation. After the protective order expired at the end of six months, the parties continued to maintain separate residences. Although Husband and Wife lived separate and apart, and although divorce proceedings were pending, they resumed a sexual relationship following the expiration of the protective order. Husband testified, however, that the last time he was physically intimate with Wife was in March 2011.

At no time after March 2011 did Husband spend a single night under the same roof as Wife. Nevertheless, Husband acknowledged that he and Wife continued to communicate via telephone conversations and text messages. At times, these conversations and text messages were of an explicit or provocative sexual nature. Consequently, Husband admitted that he had engaged in phone sex with Wife, and he claimed the last time he did so was in January 2012.

Husband estimated that Wife visited his home, unannounced, six times between March 2011 and April 2012. According to Husband, however, he refused to allow Wife inside the house on any of those occasions, and he had no physical contact with her during that twelve-month period. ⁷⁴ On March 28, 2012, Husband filed an amended complaint, seeking an absolute divorce on grounds of a twelve-month separation. Wife filed a motion to dismiss. On April 3, 2012, the court conducted an evidentiary hearing on Husband’s claim for absolute divorce, and, because Wife’s responsive pleading asserted that the couple had “cohabitated and engaged in marital relations” while the case was pending, the court ruled that it would first hear testimony on the threshold question of whether Husband could establish grounds for an absolute divorce. 1 Husband was the only witness to testify relative to the issue of whether the couple’s separation had been “without cohabitation.” At the conclusion of Husband’s testimony, the court ruled that Husband had not met the statutory requirements of FL § 7-103(a)(4) because he admitted he had engaged in phone sex with Wife during the twelve months prior to filing his complaint for absolute divorce on March 28, 2012.

When Husband asked the court to clarify its ruling, the court responded as follows: The testimony from Mr. Bergeris was that he admitted that after March 29th of 2011 that he and Ms. Bergeris had had phone sex. And he also admitted that he had had phone sex as recently as January of 2012. And so that period of time, that would amount to a nine or 10 month period of time, depending on the exact dates, to me consti ⁷⁵ tutes phone sex within the year prior to the application for divorce. The operative application for divorce would be the March 28th, 2012, amended complaint at Docket Entry 109.

And so if you go to [FL §] 7-103(a)(4), what it says is that [the court “may decree an absolute divorce” on grounds of a “12-month separation] when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce. [”] So the time period, my understanding is, that you have to look back to is March 28th, 2012, going backwards to March 28th or 29th, 2011. It is that period of time. So if you look at the period from March 29th of 2011, until March 28th of 2012, there are admissions by Mr. Bergeris that he had phone sex with [Ms. Bergeris] as recently as January of 2012. So it is those facts, plus my legal determination that the words “without cohabitation” under that statute, under the case of Smith v. Smith, which I think I’d referred to earlier, 257 Md. 263 [ 262 A.2d 762 (1970) ], that this case tells me that without cohabitation means without sexual relations.

It does not say without sexual intercourse. And so my judgment today, my view is that phone sex comes within the broader definition of sexual relations that is broader than sexual intercourse. And so that’s why I find that there is, between the facts and my legal interpretation of this case and this statute, there is insufficient evidence of the lack of sexual relations during that period of time. (Emphasis added.) After all pending claims were dismissed by the court, Husband noted this appeal.

STANDARD OF REVIEW Because the court dismissed Husband’s complaint at the conclusion of a hearing conducted in accordance with Rule 2-502, we review the ruling under Maryland Rule 8-131(c). In Crise v. Maryland General Hospital, Inc., 212 Md.App. 492, 519-20 , 69 A.3d 536 (2013), we stated: ⁷⁶ As we explained in Bender [v. Schwartz, 172 Md.App. 648 , 917 A.2d 142 (2007) ], a circuit court decision under Rule 2-502, on a discrete issue that is solely within the court’s province, is essentially a trial by the court on the merits of that issue. 172 Md.App. at 664 , 917 A.2d 142 . The court may hear evidence and make factual findings necessary to its decision of the discrete issue that is within its province to decide. Therefore, the court’s decision on the issue is reviewed on appeal under Rule 8-131(c).

Id. Accordingly, pursuant to Rule 8-131(c), we “will review the case on both the law and the evidence.” Factual findings are reviewed under the clearly erroneous standard of review. See Rule 8-131(c). Questions of law, however, are reviewed de novo.

See State v. Neger, 427 Md. 582, 595 , 50 A.3d 591 (2012) (citing Clancy v. King, 405 Md. 541, 554 , 954 A.2d 1092 (2008)). In this case, Husband does not dispute the court’s factual findings. Rather, Husband contends that the court committed an error of law in ruling that phone sex constitutes cohabitation that precludes a party from obtaining a divorce pursuant to FL § 7-103(a)(4). We review the trial court’s ruling on a question of law de novo.

We agree with Husband’s contention that the circuit court erred in concluding that the parties’ phone sex constituted cohabitation which prevented Husband from obtaining a divorce pursuant to FL § 7-103(a)(4). DISCUSSION Section 7-103(a)(4) of the Family Law Article states that a court may grant an absolute divorce “when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.” The revision of FL § 7-103(a)(4) to its current form is described as follows in Cynthia Callahan & Thomas C. Ríes, Fader’s Maryland Family Law § 4-1 (5th ed.2011): In Maryland, effective October 1, 2011, a no-fault ground of living separate and apart without cohabitation for 12 months allows the parties to obtain an absolute divorce. ⁷⁷ Effective on October 1, 2011, the absolute divorce ground of “voluntary separation” for 12 months will no longer exist, and the former ground of a “2 year separation” will become “12 month separation.” Proposed legislation to retain the ground of “voluntary separation,” but to reduce the period of voluntary separation from 12 months to 6 months failed during the 2011 Legislative Session. (Footnote omitted.) Accordingly, the elements which must be demonstrated to establish grounds for an absolute divorce under FL §