Torboli v. Torboli

BELL, Chief Judge. The issue in this case involves the effect of the parties’ reconciliation during the term of a protective order on the enforcement of an emergency family maintenance award, made as a part of the protective order, where the protective order was neither modified nor rescinded during its term and the enforcement petition was filed after the expiration of the term of the protective order. Having found that the parties temporarily reconciled during the term of the protective order, the trial court declined to enforce the emergency family maintenance award for the period during which the parties were reconciled, but did order it enforced for the period before. The Court of Special Appeals affirmed.

Torboli v. Torboli, 127 Md.App. 666 , 736 A.2d 400 (1999). We granted the Petition for Writ of Certiorari, filed by Shawn R. Torboli, ⁵⁵ the petitioner, to review this important and interesting issue. Torboli v. Torboli, 357 Md. 190 , 742 A.2d 520 (1999). We shall affirm the judgment of the intermediate appellate court, but for reasons different than those on which that court relied.

On petition of the petitioner and with the consent of Joseph A. Torboli, her husband, the respondent, the Circuit Court for Washington County issued a protective order for the petitioner and against the respondent. The order, which was to remain in effect for approximately six months, from June 22, 1995 to January 8, 1996, 1 gave custody of the parties’ minor daughter to the petitioner and ordered that the respondent not abuse, threaten to abuse or harass the petitioner. It ordered the respondent to stay away from the petitioner’s residence, her place of employment and their daughter’s school. In addition, the order provided for emergency family maintenance.

See § 4-501(f). 2 Pursuant to that provision, it was ordered “[t]hat the Respondent] shall pay emergency family maintenance to Shawn Torboli as follows, $750.00 per month commencing June 26, 1995 and like amount on or before the 30th of each month thereafter the second payment being due July 30,1995.” 3 ⁵⁶ Almost ten months after the protective order expired, the petitioner filed in the Circuit Court “Petitioner’s Request for Sanctions and Enforcement of Child Support Provisions of Protective Order.” Noting that no modifications of the protective order had been requested by either party and alleging that only $640 had been paid, the petitioner asked the court to order the respondent to pay to her the balance due under the emergency family maintenance portion of the order, $4,610. After a hearing, the Circuit Court dismissed the petition, concluding that, since the protective order had expired, it could not then enforce it, even though the claimed violations occurred while the order was in effect. Holding “that § 4-507(g) does not prohibit a court from enforcing or otherwise addressing violations of an expired protective order when the acts or omissions occurred while the protective order was in effect,” the Court of Special Appeals reversed, Torboli v. Torboli, 119 Md.App. 684 , 705 A.2d 1186 (1998), and remanded the case to the Circuit Court for further proceedings. On remand, the respondent acknowledged that he did not make all of the payments required by the emergency family maintenance provision of the protective order.

He maintained, however, that he and the petitioner reconciled during ⁵⁷ the term of the protective order and, as a consequence, the payments were not due. The petitioner vehemently disagreed with that contention. The court took testimony on the issue of the parties’ reconciliation, hearing from the parties, their daughter, and two of the respondent’s co-workers. The respondent’s daughter and the co-workers supported the respondent’s contention that the parties had reconciled.

Only the petitioner testified to the contrary and the trial court did not find her “to be particularly credible.” The Circuit Court made two express findings, that: “the parties did intend to reconcile and did, for the most part, live in the same residence between July 1, and December 15,1995” and “the parties did not intend to rely on the protective order after sometime in July 1995.” Having found a reconciliation and commenting that “a party cannot pick and choose which portions of the order that she wants to embrace,” it noted that, by the act of reconciling, many of the provisions of the protective order were rendered a nullity, mentioning, by way of example, the order to stay away from each other, to vacate the family home, the custody of their daughter and the visitation. Although it acknowledged that it was not controlling in a domestic violence case, the issue being the effect of reconciliation on a party’s entitlement to alimony, but finding that “it is persuasive and makes commonsense as well,” the court relied on Thomas v. Thomas, 294 Md. 605 , 451 A.2d 1215 (1982), which it characterized as holding “that alimony terminates on reconciliation and there is no need for judicial action in that regard.” As indicated, the Court of Special Appeals affirmed the judgment of the Circuit Court. In doing so, it addressed two questions, the sufficiency of the evidence that a reconciliation of the parties occurred and whether that reconciliation nullified the emergency family maintenance payments ordered as a part of the protective order. 4 Perceiving the issue before it to ⁵⁸ be a narrow one, “ie., whether payments under an emergency family provision of a protective order are enforceable during reconciliation,” 127 Md.App. at 676 , 736 A.2d at 406 , and, like the Circuit Court, finding persuasive our opinion in Thomas , reiterating, after a thorough review of the law of divorce and alimony along with a painstaking analysis, a proposition announced as early as Wallingsford v. Wallingsford, 6 H. & J. 485, 488 (1825): “upon their mutual consent to live together, it [alimony] ceases,” 294 Md. at 615 , 451 A.2d at 1220 , the intermediate appellate court held “that the emergency family provision of a protective order is nullified upon the parties’ reconciliation.” Torboli, 127 Md.App. at 676 , 736 A.2d at 406 . The petitioner does not challenge on this appeal the sufficiency of the evidence to establish that the parties reconciled during the term of the protective order. 5 Nor does she contend that reconciliation of the parties does not, or can never, affect a protective order or the emergency family ⁵⁹ maintenance provision of such order.

Indeed, the petitioner makes clear, in her reply brief, that she “is not contending that reconciliation cannot be a proper basis for modification or rescission by the issuing court, during the term of the protective order, and after requisite notice and a hearing.” 6 Instead, she limits the focus of her appeal largely to the question of the applicability of § 4-507(a)(l) to the facts of this case and whether that section prescribes the exclusive method for modifying or rescinding a protective order and even contesting ⁶⁰ its enforceability. Therefore, the petitioner argues that, as a matter of law, it is error for a trial court, in clear disregard of § 4-507(a)(l), to find that reconciliation of the parties nullifies the emergency family maintenance provisions of a protective order, where there has been no modification or rescission of the protective order during the term of the protective order. Central, and critical, to this argument is the notion that, by enacting § 4-507(a)(l), the General Assembly provided the only method by which protective orders could be modified or rescinded — it must be done by the court that issued the protective order, during the term that the protective order is in effect and after notice to all affected eligible persons and the respondent, and a hearing. It is also of significance to the petitioner that the General assembly did not include “reconciliation of the parties” as a basis for the modification, rescission or nullification of protective orders.

Thus, the petitioner asserts: “Application of Section 4-507(a) to the facts of the subject case requires a simple disposition. The protective order here had a term from June 22, 1995 to January 8, 1996. The record of proceedings of this case do not show request, hearing or order modifying or rescinding the subject protective order during the term of that order. Therefore, the provisions of the protective order, including the provision for emergency family maintenance remain intact and can not be modified or rescinded where no attempt to do so took place during the term of the order.... “Section 4-507(a) set up a statutory barrier to modification or rescission of a protective order and its provisions after its term.

In June, 1998, over two years after the term of the subject protective order, the Circuit Court ‘nullified’ this protective order due to acts of the parties that the Circuit Court determined in June, 1998, to amount to reconciliation. By creating a method for nullifying or rescinding this protective order not provided by the legislature in Section 4-507(a) the Circuit Court was operating contrary to the clear provisions of Section 4-507(a) by permitting the par ⁶¹ ties, rather than a court, to effectively rescind the protective order.” Alternatively, the petitioner submits that, even if § 4-507(a)(1) does not prescribe when a modification or rescission of a protective order must occur, it clearly prescribes by whom the modification or rescission must be made: by the court that issued the protective order and “not by acts of parties amounting to reconciliation.” In that regard, she seeks to draw a distinction between Thomas and the case sub judice, pointing to this Court’s discussion in that case of the history of the award of alimony, clearly indicating that alimony is separable from a divorce decree in which alimony is awarded. By way of contrast, the petitioner points out that emergency family maintenance does not, and indeed cannot, exist apart from the protective order. Also significant to the petitioner is the fact that Thomas did not hold that the parties’ reconciliation nullified or rescinded the divorce decree, only the alimony award, and that § 7-102(d) 7 of the Family Law Article permits the court that granted the a mensa divorce to revoke it.

She observes, as to the latter: “Clearly, revoking an a mensa divorce decree can only be done exclusively by a court. Appellant notes the similarity in the form of that language to Section 4-507(a) applicable here in terms of by whom a protective order can be modified or rescinded.” The petitioner’s focus then is not on the sufficiency of the facts to establish that the parties did indeed reconcile or even on whether their reconciliation could, or did, have any effect on the question whether to modify or rescind the protective order or any of its provisions; as we have seen, none of those questions concerns her. In fact, as we also have seen, the petitioner concedes that the sufficiency of the evidence of reconciliation is not an issue on this appeal and that the parties’ reconciliation may affect the protective order and may even be a basis for its modification or rescission, so long as it ⁶² is offered as such during the term of the protective order and is found by the issuing court to have occurred. 8 Her argument is directed, rather, to the timing of the modification or rescission of the order — it must occur during the term of the order — and by whom the modification or rescission can be made — only the court that issued the order may modify or rescind it. It is also of some significance that, to the petitioner, a modification or rescission of the order occurs any time there are acts that, if proven, would render the order unenforceable.

To the petitioner, in short, unless the protective order or