Gordon v. Gordon

Decision Date01 September 1994
Docket NumberNo. 125,125
Citation342 Md. 294,675 A.2d 540
PartiesSara Jenkins GORDON v. Joel Spencer GORDON. ,
CourtMaryland Court of Appeals

Robert Case Liotta (Liotta, Dranitzke & Engel, on brief, Washington, DC), for appellant.

Patricia M. Weaver, Glenn M. Cooper (Paley, Rothman, Goldstein, Rosenberg & Cooper, Chartered, on brief), Bethesda, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RAKER, Justice.

In this case, we are asked to interpret a separation agreement that provides for contractual spousal support. We are specifically asked to construe a clause of the agreement that terminates the husband's obligation to pay support if "the wife resides with any unrelated man without the benefit of marriage for a period continuing for beyond sixty (60) consecutive days." Based on our interpretation of the clause, we conclude that this language requires the husband to demonstrate that the wife established a cohabitation arrangement before he may terminate support. Because the trial court and the Domestic Relations Master erroneously interpreted the agreement, we shall remand the case to determine if the wife established a cohabitation arrangement.

I.

On December 26, 1990, the Circuit Court for Montgomery County granted an absolute divorce to Sara and Joel Gordon. The court entered a Judgment of Absolute Divorce, which "incorporated but did not merge" the parties' separation agreement. The agreement included a support provision, which provided in pertinent part that:

Husband shall pay to Wife as alimony the sum of $6,000 per month in advance, commencing on the first day of December and continuing on the first day of each and every month thereafter. The said payments shall terminate upon the death of the Husband, the death of the Wife, the remarriage of the Wife, or at such time as the Wife reaches the age of 59 1/2, whichever first occurs. The said payments shall also terminate in the event the Wife resides with any unrelated man without the benefit of marriage for a period continuing for beyond sixty (60) consecutive days.

(emphasis added). 1 Mrs. Gordon's attorney drafted the last sentence of the support provision, which we shall term the "cohabitation clause." 2

Mr. Gordon paid support to Mrs. Gordon as provided in the separation agreement from the time of the divorce until the present dispute arose in 1993. In February of 1993, Mr. Gordon began to drive by Mrs. Gordon's home regularly to see if a car belonging to William Shankland was parked near the house in the morning. Mr. Gordon testified that he frequently observed Mr. Shankland's car parked near the home. Suspecting that Mrs. Gordon was residing with Mr. Shankland in violation of the separation agreement, Mr. Gordon engaged a private investigator to conduct surveillance of Mrs. Gordon's house. The surveillance began on April 16, 1993, and continued through July 23, 1993. In a letter dated July 25, 1993, Mr. Gordon informed Mrs. Gordon that he would cease paying support because she had violated the support clause of the agreement.

Mr. Gordon filed a petition in the Circuit Court for Montgomery County, requesting that the court confirm his termination of alimony, and that the court order Mrs. Gordon to repay alimony received since she began living with Mr. Shankland in violation of the clause. The court referred the case to a Domestic Relations Master for an evidentiary hearing, pursuant to Maryland Rules 2-541 and S74A. At the hearing, Mr. Gordon presented evidence suggesting that Mr. Shankland had no residence other than Mrs. Gordon's home for a period of more than sixty days. In addition, he presented evidence that Mr. Shankland used Mrs. Gordon's phone number as his own on a community theater group phone list. He also introduced checks from Mr. Shankland to Mrs. Gordon totalling nearly $12,000.

In response, Mrs. Gordon testified that Mr. Shankland maintained a separate residence at all times. She explained that Mr. Shankland used her phone number on the community theater group cast list to avoid harassing phone calls from his ex-wife. She also testified that she and Mr. Shankland did not share expenses, and that the checks presented by Mr. Gordon represented Mr. Shankland's share of expenses for joint vacations, as well as repayment of loans with interest. Mrs. Gordon did not call any other witnesses to testify on her behalf. 3

At the conclusion of the hearing, the Master found that Mr. Gordon had established that Mr. Shankland had no residence other than Mrs. Gordon's home for more than sixty days. She therefore concluded that Mrs. Gordon had resided with an unrelated male for more than sixty consecutive days in violation of the agreement. As a result, she recommended that the court confirm Mr. Gordon's termination of support payments to his ex-wife. The Master made no other findings regarding the relationship between Mrs. Gordon and Mr. Shankland.

Mrs. Gordon filed exceptions to the Master's Report, contesting the Master's interpretation of the contract, the sufficiency of the evidence to support the Master's findings, and the Master's application of the "missing witness" rule. The Circuit Court for Montgomery County heard oral argument on the exceptions on May 2, 1994. The court overruled the exceptions, but sua sponte requested that the parties brief and argue the issue of whether public policy precluded enforcement of the support clause.

After oral argument of the public policy issue, the court concluded that the agreement was not contrary to public policy, and entered an order terminating Mr. Gordon's support obligation. Mrs. Gordon noted a timely appeal to the Court of Special Appeals. We issued a writ of certiorari on our own motion prior to consideration of the case by the intermediate appellate court.

II.

The Appellant, Sara Gordon, contends that the Domestic Relations Master's finding that she had violated the terms of the separation agreement was not supported by sufficient evidence. In addition, the Appellant argues that the support provision of the agreement should be interpreted to require Mr. Gordon to demonstrate that her economic circumstances changed as a result of sharing her residence with Mr. Shankland before he may terminate support. She urges this Court to "heed the trend of courts across the country, who acknowledge increasingly that alimony modifications should, as a matter of law and in the absence of the parties' clear and unequivocal intent to the contrary, arise from changed economic circumstances, and not from punitive motives." (Appellant's Brief at 29).

The Appellee, Joel Gordon, contends that the evidence supported the Domestic Relations Master's finding that Mrs. Gordon violated the parties' agreement. He argues that once he presented prima facie evidence that the Appellant had violated the support agreement, the burden to rebut the evidence shifted back to the Appellant, and she failed to meet this burden. The Appellee also argues that the language of the support provision is unambiguous, and does not require proof of changed economic circumstances. Furthermore, Appellee argues that even if the support provision is interpreted to include an economic component, the proof offered established that Appellant cohabited with Mr. Shankland in violation of the agreement.

III.

Maryland has long recognized and enforced spousal support agreements. See, e.g., Weiss v. Melnicove, 218 Md. 571, 147 A.2d 763 (1959); Dickey v. Dickey, 154 Md. 675, 141 A. 387 (1928). Although contracts between husbands and wives made in contemplation of divorce were traditionally considered unenforceable, parties are now explicitly authorized to enter agreements regarding support and property settlement by Maryland Code (1984, 1991 Repl.Vol., 1995 Cum.Supp.) § 8-101 of the Family Law Article. 4 The prevailing view is now that "separation agreements ... are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not contrary to public policy." 5 S. WILLISTON, A TREATISE ON THE LAW OF CONTRACTS § 11:7, at 396-99 (R. Lord ed., 4th ed.1993). See also RESTATEMENT (SECOND) OF CONTRACTS § 190 (1979) (Illustration 2). 5

Spousal support agreements frequently include provisions terminating support if the spouse receiving support enters a cohabitation arrangement. See, e.g., A. TURNBULL & J. WASE, MARYLAND DOMESTIC RELATIONS FORMS 256 (1989 & 1995 Supp.) (Form 14.3.9). These provisions take a variety of forms.

One common approach is to define remarriage, which typically terminates the support obligation, to encompass cohabitation. For example, one form provision states that: For the purposes of this agreement the term "remarriage of the Wife" shall be defined as either a ceremonial civil or religious marriage or a situation whereby the wife habitually and continuously resides with another man without benefit of a marriage ceremony for a period of 120 days consecutively or 120 days cumulatively within a sixteen-month period.

S. SCHLISSEL, 2 SEPARATION AGREEMENTS AND MARITAL CONTRACTS § 19.28, at 511 (1986 & 1992 Cum.Supp.). As the treatise author notes, frequently "[p]roblems arise with use of words such as 'habitually' and 'continuously.' " Id. at 512.

Other form agreements treat cohabitation as a separate basis for termination of support, independent of remarriage. For example, one such provision states that:

(A) The [payor ] shall pay to the [payee ], for his [or her] support, maintenance, or alimony, the sum of ______ dollars per week, until the death of either party, or the remarriage of the [payee ], or the (payee's ) cohabitation with another person, whichever event shall first occur.

(B) For the purposes of this Agreement, the term "cohabitation" includes any shared occupancy of a dwelling, whether or not the occupants engage in sexual relations.

A. LINDEY &...

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