Rose v. Rose

Opinion by Beachley, J. Jonathan Rose ("Jonathan") appeals from a judgment of the Circuit Court for Montgomery County denying his motion to terminate his alimony obligation to his former wife, Andrea Rose ("Andrea"). Jonathan also appeals the circuit court's denial of his motion to alter or amend judgment related to the court's determination that, pursuant to the parties' separation agreement, Jonathan owed $18,612.37 for expenses related to the parties' children. Jonathan presents the following issues on appeal, which we have slightly rephrased: I. Whether the circuit court erred when it gave dispositive weight to the fifth factor in Gordon v. Gordon , 342 Md. 294 , 675 A.2d 540 (1996) (whether the cohabitants held themselves out as a married couple) when denying Jonathan's motion to terminate alimony?

II

Whether the circuit court erred in its denial of Jonathan's Motion to Amend or Alter Amended Judgment? Andrea noted a cross-appeal in which she challenges the circuit court's calculation of child support. We condense Andrea's questions presented into a single issue: Did the circuit court err in utilizing the "shared physical custody" formula contained in the Maryland Child Support Guidelines where the evidence demonstrated that Jonathan had not actually kept the children more than 35% of the overnights as required by the Guidelines? For the reasons that follow, we shall reverse the circuit court on its child support determination, but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND The parties were divorced by a judgment entered on December 14, 2011. That judgment incorporated, but did not merge, the parties' Separation and Property Settlement Agreement ("Agreement") dated December 9, 2011. The Agreement provided that Jonathan would pay non-modifiable alimony for a term of eight years beginning January 1, 2012, and ending December 31, 2019. The Agreement further provided that Jonathan's alimony obligation would terminate "upon the earlier of (a) Jonathan's death; (b) Andrea's death; (c) Andrea's remarriage; (d) Andrea's cohabitation (as defined by Gordon v. Gordon , 342 Md. 294 , 675 A.2d 540 (1996) ), or [ (e) ] December 31, 2019." In June 2016, Jonathan filed a "Motion to Confirm Termination of Alimony Pursuant to the Separation and Property Settlement Agreement." In his motion, Jonathan alleged that Andrea "is and/or has been cohabitating (as defined by the Settlement Agreement) with Michael Chreky since at least August 2015." Jonathan therefore sought termination of his alimony obligation as well as reimbursement from Andrea for any alimony payments Jonathan made while she was cohabiting with Mr. Chreky.

The circuit court received evidence on Jonathan's motion to terminate alimony on October 27, 2016, and November 3, 2016. Because their Agreement expressly incorporated Gordon 's definition of cohabitation as a terminating event for the payment of alimony, both parties produced evidence concerning Gordon 's non-exhaustive list of factors relevant to determining cohabitation. At the conclusion of the evidence, the trial court evaluated each of the five factors enumerated in Gordon and determined that the evidence was insufficient to establish cohabitation between Andrea and Mr. Chreky. Accordingly, the court denied Jonathan's request to terminate alimony.

The circuit court also heard Andrea's motions concerning her request to recalculate child support pursuant to the Agreement, as well as her claim for reimbursement of "shared expenses" related to the children's education, health care, and extracurricular activities. As to child support, the Agreement provided that, beginning in 2013, the parties would annually "recalculate Jonathan's child support obligation based upon the Maryland Child Support Guidelines[.]" The parties disagreed whether Jonathan's child support obligation should be calculated based on the "shared" or "sole" custody formula contained in the Guidelines. Jonathan contended that because the Consent Custody Order, agreed to by the parties in 2010, gives him the authority to exercise visitation for five out of every fourteen overnights, or 36% of all overnights, he met the 35% threshold for "shared custody" as provided in the Guidelines. Andrea contended that the determinative factor for child support purposes is the actual number of overnights that a parent keeps a child.

Because Andrea produced evidence that for the years 2012 through 2015, inclusive, Jonathan only kept the children for 26% to 33% of all overnights, she argued that Jonathan did not meet the 35% threshold for shared custody as set forth in the Guidelines. Rather, she contended that child support should be calculated using the sole custody formula. Agreeing with Jonathan, the circuit court relied on the overnights awarded in the Consent Custody Order and used the shared custody formula to calculate child support, leading to Andrea's cross-appeal. Finally, the court found that Jonathan owed Andrea $18,612.37 in shared expenses related to the children as provided in the Agreement.

As a result of that determination, Jonathan filed a "Motion to Amend or Alter Amended Judgment," the substance of which we will discuss infra . The court denied that motion, which Jonathan challenges on appeal. I. Jonathan's Motion to Terminate Alimony The parties agree that the following provision contained in Paragraph 10 of their Agreement governs whether Jonathan is entitled to terminate his alimony obligation: Jonathan's alimony obligation shall terminate, except as to any arrearages, upon the earlier of (a) Jonathan's death; (b) Andrea's death; (c) Andrea's remarriage; (d) Andrea's cohabitation (as defined by Gordon v. Gordon , [ 342 Md. 294 ] 675 A.2d 540 (1996) ), or [ (e) ] December 31, 2019, whichever occurs first. The parties further agree that the only potential terminating event relevant here is subsection (d) of Paragraph 10-whether Andrea was cohabiting with Mr. Chreky as defined by Gordon .

Because the parties incorporated Gordon 's definition of cohabitation in their Agreement, we begin our analysis by reciting the Gordon Court's definition of "cohabitation:" We conclude that the term "cohabitation" implies more than merely a common residence or a sexual relationship. We believe the ordinary definition of "cohabitation," describing a relationship of living together "as man and wife," connotes mutual assumption of the duties and obligations associated with marriage. To guide trial courts in applying this definition, we have formulated a list of factors to consider in determining whether a relationship constitutes cohabitation. We emphasize, however, that the list is non-exhaustive, and that no one factor serves as an absolute prerequisite for cohabitation.

In interpreting "cohabitation," courts may consider indicia such as: 1. establishment of a common residence; 2. long-term intimate or romantic involvement; 3. shared assets or common bank accounts; 4. joint contribution to household expenses; and 5. recognition of the relationship by the community. 342 Md. at 308 -09 , 675 A.2d 540 (footnotes omitted). A. The Parties' Contentions Jonathan asserts that the circuit court "unequivocally" found that the evidence established the first four Gordon factors. In his opening brief, Jonathan's principal challenge is that the trial court erred in its application of Gordon 's fifth factor. In his view, because the Court of Appeals in Gordon "expressly declined to require that couples hold themselves out to be spouses to be deemed 'cohabitating,' " the court erred when it gave "dispositive weight" to its factual determination that there was no evidence as to how Andrea and Mr. Chreky held themselves out to the community.

Alternatively, Jonathan posits that "there was evidence presented that Ms. Rose and Mr. Chreky held themselves out as a cohabitating couple to their families." Andrea disagrees with Jonathan's interpretation of the trial court's determinations pertaining to the first four Gordon factors. While she acknowledges that the court found the existence of a common residence (factor one) and a long-term intimate or romantic relationship between herself and Mr. Chreky (factor two), she disputes Jonathan's assertion that the court's findings as to the third and fourth factors (shared assets or common bank accounts, and joint contribution to household expenses) favored a finding of cohabitation. To the contrary, Andrea claims that the court found that the evidence did not support these factors, thereby supporting her contention that she was not cohabiting with Mr. Chreky. As to the fifth factor, Andrea asserts that the trial court correctly concluded that "there wasn't one shred of evidence from anybody as to how they held themselves out." Andrea therefore argues that, after weighing all of the relevant factors, the court appropriately determined that the evidence did not establish "cohabitation" as defined in Gordon .

B. The Trial Court's Decision In rendering its bench opinion, the trial court initially noted that the parties expressly incorporated Gordon 's definition of cohabitation as one of the terminating events for the payment of alimony. The court proceeded to consider each of the indicia of cohabitation as enumerated in Gordon . The court found the existence of the first two factors: establishment of a common residence and a long-term intimate relationship between Andrea and Mr. Chreky. 1 As to the third factor-shared assets or common bank accounts-the court stated that "[t]hey haven't shared any assets beyond the house." The court expressly determined that Andrea and Mr. Chreky had no common bank accounts. Although Andrea had made loans to Mr. Chreky, the court noted that Mr. Chreky repaid those loans with interest.

The court concluded, "So with respect to the common bank accounts and the lending of money, [the court] thinks that militates in [Andrea's] favor." Moving to the fourth Gordon factor-joint contribution to household expenses-the court found that, although Mr. Chreky made some non-monetary contributions to Andrea's household, 2 there were no joint contributions to household expenses. In considering Gordon 's fifth factor-recognition of the relationship by the community-the trial court recognized Gordon 's admonition that Maryland law does not "interpret 'cohabitation' to require the couple to hold themselves out as spouses." 342 Md. at 309 , 675 A.2d 540 . The court then stated that "there wasn't one shred of evidence from anybody as to how [Andrea and Mr. Chreky] held themselves out." After reviewing the evidence related to each of the five Gordon factors, the trial judge concluded that "when I weigh all of the factors together, I'm not convinced that there was cohabitation under [ Gordon ]." Though the court opined that this was a "close" case, it ultimately determined, "under all the facts and circumstances of this relationship," that cohabitation between Andrea and Mr. Chreky had not been established. The court consequently denied Jonathan's motion to terminate alimony.

C. Standard of Review In Gordon , the Court of Appeals stated that "[t]he determination of whether an arrangement constitutes 'cohabitation' is a factual issue to be decided on the specific facts of each case." Id. at 304 , 675 A.2d 540 (citing In re Marriage of Edwards , 73 Or.App. 272 , 698 P.2d 542 , 546 (1985) ). See also Ricketts v. Ricketts , 393 Md. 479 , 485 n.3, 903 A.2d 857 (2006) ("Whether the parties cohabited, or not, is clearly a question of fact."). Accordingly, the "clearly erroneous" standard of review applies to the trial court's determination here that the evidence failed to prove that Andrea and Mr. Chreky were cohabiting. Under that standard of review, "[a]s long as the trial court's findings of fact are not clearly erroneous and the ultimate decision is not arbitrary, we will affirm it, even if we might have reached a different result." Malin v. Mininberg , 153 Md. App. 358 , 415, 837 A.2d 178 (2003).

Where, however, a decision "involves an interpretation and application of statutory and case law, the appellate court must determine whether the circuit court's conclusions are 'legally correct' under a de novo standard of review." Brandenburg v. LaBarre , 193 Md. App. 178 , 186, 996 A.2d 939 (2010). D. Discussion We initially note that neither party challenges the trial court's use of Gordon as its legal guidepost for determining whether Andrea cohabited with Mr. Chreky. Any such challenge would be fruitless in that the parties explicitly incorporated Gordon 's definition of cohabitation in their Agreement. We conclude that the trial court's factual findings as to the five Gordon factors were not clearly erroneous.

As noted previously, the parties do not dispute the court's findings that Andrea and Mr. Chreky had established a common residence and maintained a long-term intimate relationship. Contrary to Jonathan's assertion, the court determined that the third Gordon factor-shared assets or common bank accounts-weighed against a finding of cohabitation, expressly finding that "[t]hey haven't shared any assets beyond the house." In addressing Gordon 's fourth factor, the court found that there were no joint contributions to household expenses. Again, contrary to Jonathan's assertion, that finding weighed against a determination of cohabitation in this case. In short, Jonathan misinterprets the trial court's conclusions as to Gordon 's third and fourth factors.

As to Gordon 's fifth factor-recognition of the relationship by the community-Jonathan is correct that the Court of Appeals stated "we do not interpret 'cohabitation' to require the couple to hold themselves out as spouses." 342 Md. at 309 , 675 A.2d 540 . Citing Sitarek v. Sitarek , 179 A.D.2d 1064 , 1065, 579 N.Y.S.2d 522 (1993), the Gordon Court contrasted New York's concept of "cohabitation," which requires proof of the parties holding themselves out as a married couple. 342 Md. at 309 , 675 A.2d 540 . Instead, Gordon merely relegates "recognition of the relationship by the community" as one factor in the "cohabitation" analysis. In addition, the Court provided further guidance concerning the meaning of that fifth factor: We include the fifth factor, recognition of the relationship by the community, however, to address situations where parties have celebrated an unofficial marriage ceremony, wear wedding rings, use each others' names, or otherwise indicate to the community that they are married .

Id. (emphasis added). Applying Gordon 's fifth factor to the case at bar, there was no evidence that Andrea and Mr. Chreky celebrated an unofficial marriage ceremony, wore wedding rings, or used each other's names. Likewise, there was no evidence that Andrea and Mr. Chreky held themselves out to the community as a married couple. 3 The trial court was therefore correct in determining that the fifth factor weighed against a finding of cohabitation.

After evaluating each of the Gordon factors, the trial judge stated that "I'm not convinced that there was cohabitation" as defined in Gordon and "I just don't believe that there was a de facto marriage here." The trial court's determination is consistent with Gordon 's observation that " 'cohabitation' implies more than merely a common residence or a sexual relationship[,]" and that it "connotes mutual assumption of the duties and obligations associated with marriage." Id. at 308 , 675 A.2d 540 . We conclude that the trial court's factual findings are not clearly erroneous and that its ultimate decision that Andrea did not cohabit with Mr. Chreky is not arbitrary. Malin , 153 Md. App. at 415 , 837 A.2d 178 . Moreover, we reject Jonathan's contention that the court gave "dispositive weight" to Gordon 's fifth factor.

It did no such thing. We also unequivocally reject Jonathan's suggestion that Gordon creates a cohabitation scorecard in which the existence of three out of the five factors equates to a finding of "cohabitation." We reiterate that Gordon merely enumerates a non-exhaustive list of factors intended to guide trial courts when called upon to determine whether "cohabitation" has been established. We therefore affirm the circuit court's denial of Jonathan's motion to terminate alimony.

II

Denial of Jonathan's Motion to Alter or Amend Judgment On February 6, 2017, Jonathan filed, pursuant to Rule 2-534, a motion to alter or amend the court's judgment docketed on January 26, 2017. 4 Jonathan's Rule 2-534 motion challenged both the circuit court's denial of his motion to terminate alimony and its award of $18,612.37 in favor of Andrea representing Jonathan's share of expenses related to the children. In his appellate brief, Jonathan's challenge to the circuit court's denial of his motion to alter or amend is limited to the judgment against him for his share of the children's expenses. Accordingly, we shall limit our review of the court's denial of Jonathan's motion to alter or amend as it pertains to the assessment of shared expenses for the children. Maryland Rule 2-534 governs the court's revisory power over judgments: In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment.

A motion to alter or amend a judgment may be joined with a motion for new trial. A motion to alter or amend a judgment filed after the announcement or signing by the trial court of a judgment but before entry of the judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket. Appellate review of a court's ruling on a 2-534 motion is typically limited in scope. Schlotzhauer v. Morton , 224 Md. App. 72 , 84, 119 A.3d 121 (2015) (citing Cent.

Truck Ctr. v. Cent. GMC, Inc. , 194 Md. App. 375 , 397, 4 A.3d 515 (2010) ). In general, the denial of a motion to alter or amend a judgment is reviewed by appellate courts for abuse of discretion. The relevance of an asserted legal error, of substantive law, procedural requirements, or fact-finding unsupported by substantial evidence, lies in whether there has been such an abuse.

Id. (internal citations omitted). We note, however, that a "court's discretion is always tempered by the requirement that the court correctly apply the law applicable to the case." Arrington v. State , 411 Md. 524 , 552, 983 A.2d 1071 (2009). The basis for Andrea's claim for shared expenses is found in Paragraphs 7, 8, and 9 of the Agreement.

In their Agreement, the following expenses related to the children were to be shared on a pro rata basis according to the parties' incomes: private school expenses (Paragraph 7); extraordinary unreimbursed medical, dental, and therapy expenses (Paragraph 8); and expenses for agreed-upon extra-curricular activities (Paragraph 9). At trial, Andrea introduced an itemized list of expenses related to the children for which she