Mendelson v. Mendelson

BLOOM, Judge. Appellant, Erwin Mendelson, and appellee, Helene Mendelson, were divorced by a decree of the Circuit Court for Montgomery County on 30 March 1977. That decree incor ⁴⁹¹ porated but did not merge the separation and property settlement agreement executed by the parties on 14 July 1976, over a year after they separated. Appellant paid spousal support to appellee, in accordance with their agreement, for approximately 9 years.

In November 1985, however, he petitioned the court to terminate or reduce his support obligation because of appellee’s “flagrant misconduct.” Aggrieved by the circuit court’s denial of his petition, appellant brought this appeal. Appellant must remain aggrieved; we shall affirm the circuit court’s decision. Facts The parties were married in June 1957; they separated in 1975. On 14 July 1976, they entered into a separation and property settlement agreement, which provided, inter alia, that appellant would pay appellee “as alimony Twenty-two Thousand Eight Hundred Dollars ($22,800) annually in twelve (12) equal monthly payments of One Thousand Nine Hundred Dollars ($1,900) payable on the first day of each month____” This contractual spousal support was to be adjusted each August according to cost of living increases as set forth by the Bureau of Labor Statistics of the United States Department of Labor; it was to “cease upon the death of either party or upon the remarriage of the [appellee].” The agreement further stated that the appellee waived “any cause of action she may have to seek additional alimony or change the alimony provisions provided for in this Agreement, provided that the [appellant] does not breach ... [the] Agreement.” The final provision concerning the spousal support dealt with the circumstances of how the support could be reduced.

The agreement specified that if the appellant became disabled or retired at age 60 or thereafter, “the parties shall attempt to agree on alimony ... payments that are equitable in light of the [appellant’s] changed financial resources”; should the parties be unable to reach such an agreement, then “either party may apply ⁴⁹² to a court of competent jurisdiction for such relief as may be appropriate.” Subsequent to the divorce, appellee met and developed a close relationship with one Manuel Epstein, who moved into appellee’s home in 1981. Mr. Epstein pays some of the household expenses and generally maintains the home. Appellee covers the balance of the expenses. On 22 November 1985, appellant filed a petition to reduce or terminate the contractual spousal support, asserting that a reduction or termination of the support was warranted because appellee’s relationship with Epstein constituted a significant change in appellee’s financial circumstances, thereby negating appellee’s need for the support.

In her answer, appellee admitted her relationship with Epstein but denied that the relationship lessened her need for the support or significantly changed her financial situation. On May 5, 1987, the case came before a Domestic Relations Master. At the conclusion of appellant’s case, appellee moved for dismissal, citing the failure of appellant to show a substantial change in financial circumstances. The master’s factual findings, based on the evidence presented to him, were that Epstein’s contributions were not disproportionate and that but for those extra contributions appellee would probably need an increase in the support, which was precluded by the separation agreement.

Consequently, the master recommended dismissal of appellant’s petition, stating that appellee’s relationship with Mr. Epstein was not “flagrant misconduct” that would require termination or a reduction of the spousal support, nor did the relationship effect a substantial change in appellee’s financial circumstances. Appellant noted exceptions to the master’s report and requested a hearing. The court granted a hearing and on 6 July 1987 orally overruled appellant’s exceptions and affirmed the master’s report. On 5 August 1987, appellant noted an appeal from that oral order.

On 7 October 1987, the circuit court issued a written order overruling appel ⁴⁹³ lant’s exceptions, thereby affirming the master’s report. Appellant then noted an appeal from that order. 1 The “Flagrant Misconduct”/“Change in Financial Condition” Argument The parties refer us to a trilogy of cases from this Court concerning the kind of conduct that will permit a trial court to terminate or reduce alimony or spousal support. Appellant relies on Atkinson v. Atkinson, 13 Md.App. 65 , 281 A.2d 407 (1971), and Roberts v. Roberts, 35 Md.App. 497 , 371 A.2d 689 (1977), for his argument that appellee’s cohabitation with Epstein constitutes “flagrant misconduct” which permits a trial court to reduce or terminate contractual spousal support. Appellee relies on Meyer v. Meyer, 41 Md.App. 13 , 394 A.2d 1220 (1978), cert. denied, 284 Md. 746 (1979), for her argument that her post-divorce cohabitation does not in itself justify reduction or termination of the support, but that such cohabitation may only be considered where it is relevant to a change in her financial condition.

Appellee asserts that since, as the master found, no change in her financial condition has taken place, her relationship with Mr. Epstein is irrelevant. ⁴⁹⁴ In Atkinson we noted that there was a conflict of authority as to what, if any, post-divorce conduct would justify termination of spousal support, recognizing that in some states “flagrant misconduct” had been held to justify termination, whereas other states had rejected that concept. 13 Md.App. at 71-72 , 281 A.2d 407 . We found it unnecessary to align Maryland with either faction, since the activities of the recipient of the support, which did not include “living with” another man outside of marriage, did not constitute “flagrant misconduct” in any event. 13 Md.App. at 73 , 281 A.2d 407 . In Roberts we adopted the suggestion in Atkinson that “flagrant misconduct” could be grounds for terminating post-divorce support, but again found that the alleged misconduct—alcoholism—did not amount to “flagrant misconduct.” 35 Md.App. at 503-07 , 371 A.2d 689 . Appellant would have us (1) firmly hold that which we merely suggested in Atkinson and Roberts , that “flagrant misconduct” is a cause for terminating post-divorce support, and (2) determine that, by openly living with Mr. Epstein without benefit of marriage, appellee is guilty of such “flagrant misconduct” as would require the application of that rule.

Appellee, however, points to Meyer , in which we, after reviewing the authorities dealing with the question of whether post-divorce sexual conduct would be grounds for terminating alimony, held: [T]hat alimony, awarded to a wife in a decree of divorce a vinculo matrimonii, may not be terminated or reduced solely because of her unchaste conduct subsequent to the divorce. That post-divorce conduct may, however, be considered when it is relevant to a change in financial condition. 41 Md.App. at 21 , 394 A.2d 1220 . It would appear, therefore, that appellee has the better of it. Despite the earlier dicta in Atkinson and Roberts, Meyer flatly held that misconduct alone will not justify termination of alimony, only a change in financial circumstances, which may or may not accompany such misconduct, will require termination or modification of alimony.

And, ⁴⁹⁵ as appellee points out, the master found that there had been no substantial change in financial circumstances and the chancellor accepted that finding. Appellant, of course, asserts that that finding is unsupported by, and contrary to, the evidence. We need not resolve this dispute. We do not reach it because there is a more fundamental basis for affirming the denial of appellant’s petition to terminate or modify support.

By providing that their agreement should be incorporated but not merged in the divorce decree, the parties deprived the court of any post-enrollment power to end or diminish the contractual support for any reason not specified in the agreement. We explain. “Incorporated But Not Merged” Prior to Johnston v. Johnston, 297 Md. 48 , 465 A.2d 436 (1983), and the companion case of Hamilos v. Hamilos, 297 Md. 99 , 465 A.2d 445 (1983), it was quite common for counsel drafting separation and property settlement agreements to insert a provision to the effect that in the event of divorce the agreement should be incorporated but not merged into the decree. It was apparently believed that incorporation would make the agreement part of the decree while non-merger would preserve its contractual status. Thus, in the event of a breach, it was thought, the aggrieved party would have the choice of enforcing the decree or suing on the contract.

Since such language is still being inserted in separation agreements, we suspect that Johnston has been ignored or misread. In Maryland, the traditional definition of alimony was court ordered payments to a wife for her support to continue during the joint lives of both husband and wife and so long as the parties live separate and apart. Bebermeyer v. Bebermeyer, 241 Md. 72 , 215 A.2d 463 (1965); Blades v. Szatai, 151 Md. 644 , 135 A. 841 (1927); Hood v. Hood, 138 Md. 355 , 113 A. 895 (1921); Newbold v. Newbold, 133 Md. 170 , 104 A. 366 (1918); McCaddin v. McCaddin, 116 Md. 567 , 82 P. 554 (1911); Wallingsford v. Wallingsford, 6 H. & ⁴⁹⁶ J. 485 (1823). This traditional definition was modified by the passage of the Maryland Equal Rights Amendment, Md. Const.

Decl. of Rights art. 46, thereby eliminating the gender bias stated in the traditional definition. Consequently, alimony may now be awarded to either spouse. See, Hofmann v. Hofmann, 50 Md.App. 240 , 437 A.2d 247 (1981). See also, Md.Fam.Law Code Ann. § ll-101(b) (1984, 1987 Cum.Supp.) (“The court may award alimony to either party”).

By virtue of Md.Fam.Law Code Ann. § ll-106(a), alimony may be awarded for a limited period of time and need not continue indefinitely during the joint lives of the parties or until the remarriage of the recipient. Cf Md.Fam.Law Code Ann. § ll-106(c) (authorizing a court to award alimony for an indefinite period upon making certain factual findings). The courts of Maryland have always recognized a distinction between alimony (sometimes referred to as “technical alimony”), which the court is empowered to award, and contractual spousal support which the court could not grant but for the agreement of 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).

The parties may, of course, agree upon the amount, duration, and method of payment of spousal support, and the court may, but need not, accept, adopt, and incorporate the agreement and make it part of the judgment or decree of divorce. If the agreed upon spousal support meets the definition of alimony, that is, if the court would have had the power to make that award absent the agreement, the award is technical alimony when the agreement is made part of the decree. But if the support provisions of the decree do not meet the technical definition of alimony, i.e., if its terms are such that the court could not have awarded it but for the agreement, the provision remains contractual support even if it is made part of the decree. See, Beber ⁴⁹⁷ meyer v. Bebermeyer, 241 Md. at 77 , 215 A.2d 463 ; Dickey v. Dickey, 154 Md. at 678-79 , 141 A. 387 .

This distinction between technical alimony and contractual spousal support was far more important formerly than it is today. Prior to 1950, an agreement to pay spousal support that was made part of the divorce decree but did not qualify as technical alimony could be enforced by sequestration, execution, and attachment, see, Reichhart v. Brent, 247 Md. 66 , 230 A.2d 326 (1967), but not by imprisonment for contempt. Such support was a debt imposed by contract rather than a duty imposed by judicial decree. See, Dickey v. Dickey, 154 Md. at 681 , 141 A. 387 .

Furthermore, such contractual support, being purely contractual and not technical alimony, could not be modified by the court. Soldano v. Soldano, 258 Md. 145, 146 , 265 A.2d 263 (1970) (per curiam); Bellofatto v. Bellofatto, 245 Md. at 385-86 , 226 A.2d 313 ; Bebermeyer v. Bebermeyer, 241 Md. at 77-78 , 215 A.2d 463 ; Dickey v. Dickey, 154 Md. at 678 , 141 A. 387 . The first of these distinctions between technical alimony and contractual spousal support was blurred in 1950 by the adoption of an amendment to the Maryland Constitution, Md. Const, art. Ill, § 38, which now provides: No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony (either common law or as defined by statute), shall not constitute a debt within the meaning of this section.

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