Panitz v. Panitz

DAVIS, J. In the instant appeal, we are called upon to decide whether appellant’s challenge to the judgment of the lower court that he continue alimony payments to appellee despite her living arrangements with a live-in lover constitutes an innovative theory for extension or modification of the law (see Kelley v. Dowell, 81 Md.App. 338, 341 , 567 A.2d 521 (1990)) or an abuse of the judicial process by filing an action without substantial justification. Appellant/cross-appellee Stanley I. Panitz appeals from the Decree of Divorce (the Decree) dated February 15, 1979, whereby he and cross-appellant/appellee Harriet Panitz were divorced. 1 On February 9, 2001, appellee filed a Complaint for Declaratory Judgment in the Circuit Court for Baltimore County, seeking a determination and adjudication of her rights under the Marital Settlement Agreement (the Agreement), dated February 14,1979, alleging that appellant’s unilateral reduction in her monthly “support and maintenance” payments was unwarranted. Believing the facts were not in dispute, appellee filed a Motion for Summary Judgment shortly thereafter. Appellee filed a Petition for Contempt contemporaneously with the filing of the complaint, in light of appellant’s decision to withhold the full amount of support due pursuant to the Decree.

A show cause hearing was conducted (Norris Byrnes, J.) and the trial court ordered appellant to pay the support arrearages. In addition, the trial court ordered appellant to pay $2,000 toward the counsel fees incurred by appellee in ⁶³² prosecuting the petition. The court expressly declined to rule on the merits of the original complaint. A hearing on appellee’s motion for summary judgment was held on June 27, 2001.

On July 1, 2001, appellant filed a Petition for Award of Attorney’s Fees, seeking reimbursement for the fees incurred to prosecute the complaint. On August 29, 2001, the trial court, in two separate orders, granted summary judgment in favor of appellee and denied her request for attorney’s fees. Appellant noted his timely appeal on September 20, 2001, presenting one question for our review, which we rephrase for clarity as follows: I. Did the trial court err in ruling that appellant’s obligations under the Agreement were not suspended while appellee cohabitated with another man? Appellee additionally noted her cross-appeal on September ■24, 2001, presenting for our review the following question: II.

Did the trial court err in declining to award appellee attorney’s fees incurred in the prosecution of her Complaint for Declaratory Judgment? We answer the above questions in the negative and, therefore, affirm the judgments of the trial court. FACTUAL BACKGROUND Appellant and appellee were married on June 19, 1949. On February 14, 1979, they entered into the Agreement, which required appellant to pay appellee, “for her support and maintenance,” $1,666.67 per month provided, however, that all such payments shall cease, and [appellant] shall have no further obligation to make any payment pursuant to this Paragraph 3 after the first to occur of any one of the following events: (a) remarriage of [appellee] (except as hereinafter provided); (b) death of [appellee], or (c) death of [appellant]----Should [appellee] remarry, [appellant] shall pay unto her for her support and maintenance until the first to occur of (a) death of [appellee], or (b) death of [appellant], the sum of ... $416.67 per month, accounting from and with ⁶³³ the first payment being due and payable on the first day of the first month following the date of her remarriage.

The provisions of this paragraph 3 shall not be subject to court modification. Pursuant to Paragraph 22 of the Agreement, entitled “NonModifiability”: Except for the provisions contained in this Agreement relating to the custody, visitation and support of the minor child of the parties, none of the other provisions of this Agreement shall be subject to modification by any [c]ourt. The Agreement was incorporated into the parties’ Divorce Decree by reference and the parties were thus bound to perform in accordance with the terms thereof. Paragraph three ordered appellant to pay directly unto [appellee] and not through any agency of the court, for her support and maintenance, the fixed and unchangeable sums provided in the aforesaid Agreement between the parties and subject to the terminal events contained in the Agreement.

Until January 2, 2001, appellant diligently paid appellee all support and maintenance payments. The cessation of payments was precipitated by the commencement of a relationship between appellee and an unmarried man (Mr. X). 2 Appellee and Mr. X have never married; however, the two live together in Mr. X’s condominium in a high rise building next to the Inner Harbor in Baltimore. Appellee has never attempted to conceal their living arrangement; rather she has used Mr. X’s address as her own on all court papers. In a letter dated November 4, 2000, appellant informed appellee that he would reduce the amount of her support payments: ⁶³⁴ On one hand, while our divorce agreement says that alimony would cease if you re-marry, it is silent as to living together.

On the other hand, the practical and fair view seems to lead to its being terminated. So my decision is to end payments, except for $5,000 per year, as of December 31, 2000 and to resume them if you return to a single life, unless you have been married. For reasons totally separate from money, I truly wish you and [Mr. X] a happy life together. On January 1, 2001, as stated in his letter, appellant reduced the amount of support paid to appellee to $416.67 per month.

In response to the reduction in her support, appellee filed the instant action. Appellant offered to pay the disputed payments into the court registry or into an escrow fund held by counsel for appellee until the issues raised in appellee’s complaint were resolved. The offer was rejected, however, and, at a hearing on March 27, 2001, the trial judge stated that he would hold appellant in contempt if he failed to pay the arrearages. Appellant complied and, in addition, continued to make the full monthly payments.

As stated above, the court granted appellee’s motion for summary judgment. LEGAL ANALYSIS I Relying on “fundamental issues of the law of contracts,” e.g., the doctrines of unconscionability and frustration of purpose, appellant contends that the trial court should have mitigated the strict rule of pacta sunt servanda, which means “agreements are to be observed.” Because a basic assumption of the contract has been disproved, appellant maintains, he should be excused from performance. Appellee counters that appellant’s appeal “is utterly without merit,” asserting that he is “conjur[ing] up theories of contract law that have absolutely no relevancy to this case.” ⁶³⁵ Pursuant to Md.Code (1999 Repl.Vol.), Fam. Law (F.L.) § 8-105, entitled “Power of court to enforce or modify provisions,” [t]he court may modify any provision of a deed, agreement, or settlement that is: (1) incorporated, whether or not merged, into a divorce decree; and (2) subject to modification under § 8-103 of this subtitle.

(Emphasis added.) F.L. § 8-103(c) provides: The court may modify any provision of a deed, agreement, or settlement with respect to alimony or spousal support executed on or after April 13, 1976, regardless of how the provision is stated, unless there is: (1) an express waiver of alimony or spousal support; or (2) a provision that specifically states that the provisions with respect to alimony or spousal support are not subject to any court modification. (Emphasis added.) As discussed in Campitelli v. Johnston, 134 Md.App. 689 , 761 A.2d 369 (2000), F.L. § 8-105 was enacted in response to Mendelson v. Mendelson, 75 Md.App. 486 , 541 A.2d 1331 (1988), wherein we held that the trial court was without power to modify a spousal support provision in a separation agreement unless the agreement had been merged in the divorce decree. Because of F.L. § 8-105, a court may now modify any incorporated support provision—whether merged or separate—so long as such modification is not prohibited by F.L. § 8-103 and, as delineated above, there are only two situations in which a trial court’s power to modify a support provision will be inhibited. At the conclusion of the June 27, 2001 hearing in the circuit court, the trial judge stated that he would “sign a decree enforcing or declaring that [appellant] must continue to pay the $1,666.67 until [appellee] remarries or one of the parties ⁶³⁶ dies.” The court’s findings could not be more fully supported by clear and unambiguous Maryland law.

We explain. It is well settled that, in order to interpret a statute, an appellate court must first determine the intention of the legislature in enacting it. Mayor and City Council of Baltimore v. Chase, 360 Md. 121 , 756 A.2d 987 (2000). The rules of statutory interpretation have been stated by the Court of Appeals and by this Court on many occasions.

See, e.g., Chesapeake and Potomac Telephone Co. of Maryland v. Director of Finance for Mayor and City Council of Baltimore, 343 Md. 567, 578-79 , 683 A.2d 512 (1996)(holding that “the cardinal rule is to ascertain and effectuate legislative intent”); Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448 (1994)(explaining that “[t]he cardinal rule of statutory construction is to ascertain and carry out the intent of the legislature”). “[OJrdinarily, when the words of the statute are clear and unambiguous, according to their commonly understood meaning, [an appellate court must] end [its] inquiry there.” Chase, 360 Md. at 128 , 756 A.2d 987 . Indeed, “[w]here the statutory language is plain and unambiguous, a court may neither add nor delete language so as to ‘reflect an intent not evidenced in that language,’ nor may it construe the statute with ‘forced or subtle interpretations’ that limit or extend its application.’ ” Id. (citations omitted). Moreover, whenever possible, an appellate court should refrain from reading a statute in such a manner that would render nugatory any words, clauses, sentences, or phrases.

Id. Family Law § 8-103 is, indeed, clear and unambiguous. Plainly stated, a trial judge is prohibited from modifying a support provision in two situations. The first enumerated exception to the trial court’s powers of modification, which is irrelevant here, arises when there has been an express waiver of alimony or any other spousal support.

The second exception, however, is apposite. In the Agreement, appellant and appellee consented to a provision which prohibited the trial court from modifying any provision contained therein: ⁶³⁷ Except for the provisions contained in this Agreement relating to the custody, visitation and support of the minor child of the parties, none of the other provisions of this Agreement shall be subject to court modification. (Emphasis added.) In light of such clear contractual language, we decline to overrule the trial court’s finding that it was prohibited from modifying the Agreement. We fail to perceive any error in its judgment.

Moreover, appellant’s argument that traditional principles of equity should have mandated a different result is without merit. Rather, we concur with appellee’s position that, “[i]n Mendelson, [supra], this Court considered and rejected the basic premise of [appellant’s] arguments.” The facts surrounding Mendelson are, indeed, on point. There, the parties had entered into a separation agreement that provided for the payment of monthly support to the wife, subject only to the subsequent remarriage of the wife or the death of either party. The alimony payments were modifiable only in the event the husband became disabled or retired at age sixty or older.

As here, the husband petitioned the court in an attempt to have his alimony obligations terminated or, in the alternative, modified, claiming that to require him to continue the payments would be “unconscionable” in light of the fact that the wife had been cohabitating with another man. The court rejected his argument, however, relying on the clear and unambiguous language contained in the separation agreement: [T]he separation agreement states that the support shall terminate upon the death of either party or upon the remarriage of appellee. This language ... is plain and unambiguous. Since neither death nor appellee’s remarriage has occurred, the termination provisions have not been activated.

Appellant