Lieberman v. Lieberman

• Citation: 568 A.2d 1157,81 Md.App. 575
• Decision Date: 01 September 1989
• Docket Number: No. 675,675
• Parties: Mark LIEBERMAN v. Kathleen LIEBERMAN. ,
• Court: Court of Special Appeals of Maryland

Page 575

81 Md.App. 575

568 A.2d 1157

Mark LIEBERMAN v. Kathleen LIEBERMAN.

No. 675, Sept. Term, 1989.

Court of Special Appeals of Maryland.

Feb. 6, 1990.

Bruce A. Kaufman (Rosenthal and Kaufman, P.A., on the brief), Baltimore, for appellant

Margaret G. Richlin, Columbia, for appellee.

Argued before WILNER, ROSALYN B. BELL and WENNER, JJ.

ROSALYN B. BELL, Judge.

The primary issue before us is whether a court may modify the support specified in a tax-structured family support agreement, incorporated but not merged into a Mark and Kathleen Lieberman were married in June of 1979. Their son, Andrew, was born less than three weeks later. The parties separated in September of 1981. About two months later, a second son, Michael, was born. The parties, both represented by counsel, entered into a Separation and Property Settlement Agreement in May of 1982. The parties were divorced in June of 1983. The relevant portions of the agreement and the divorce decree will be detailed later.

                divorce decree, where the full amount of the support then being paid relates exclusively to children.   Appellant contends the contract precludes modification.   We disagree and hold the court may modify child support in such an agreement.   We will explain, answer a number of other issues raised and examine the award of attorney's fees
                

Of substantial significance in this case is the current wealth and lack of wealth, respectively of the Liebermans. Mr. Lieberman is the president of Londontown Corporation, maker of London Fog raincoats, outerwear and other clothing. He has a yearly income of approximately $387,000 per year and his net worth exceeds one million dollars. Ms. Lieberman, on the other hand, has a negative net worth and an annual income in the neighborhood of $16,000.

In January of 1988, Ms. Lieberman filed a Petition for Contempt, Breach of Contract, Modification of Support, Request for Appointment of Counsel for Minor Children, and other Relief in the Circuit Court for Howard County. She based her claims for relief upon the Separation and Property Settlement Agreement.

An evidentiary hearing was held on the Petition and on January 30, 1989, the court issued a Memorandum and Order granting modification of support, but leaving the issues of contempt and breach of contract open. On February 10, 1989, Mr. Lieberman filed a Motion to Revise, Alter Mr. Lieberman, appellant/cross-appellee, presents the following questions:

                or Amend, or for New Trial. 1  Ms. Lieberman filed an Answer to this Motion on February 14, 1989.   Prior to the hearing on these motions, Mr. Lieberman filed an appeal to this Court and Ms. Lieberman filed a timely cross-appeal
                

-- Is the judgment of the trial court appealable?

--Did the court err in modifying a tax-structured family support agreement which was incorporated, but not merged, into the June 1, 1983 Decree of Divorce when it had no jurisdiction to do so on the ground of res judicata, and the parties had themselves contracted to preclude such modification?

--Did the court err by construing the phrase "share all medical expenses not covered by insurance" to mean divide equally?

--Did the court err in making certain evidentiary rulings?

--Even if the court were empowered to modify the Agreement, was the increased amount awarded excessive?

--Did the court err in granting Ms. Lieberman $5,000 in counsel fees when there was no "substantial justification" for the institution of the proceedings?

Ms. Lieberman, appellee/cross-appellant, raises two additional questions:

--Was the amount of child support awarded by the court sufficient, in light of the demonstrated needs of the children and their father's admitted financial ability to meet those needs?

--Was her award of counsel fees inadequate in light of the parties' incomes and the circumstances of this case?

APPEALABLE ORDER

In a rare moment of accord, the parties agree that the judgment of the trial court is a fully appealable final order. The parties, however, cannot confer jurisdiction, so their agreement that the judgment of the trial court is appealable does not resolve the inquiry. We will be able to accommodate them, but only in part.

In the separation agreement, Mr. Lieberman was "to maintain medical insurance coverage through his employer or an equivalent plan for the benefit of the ... children until the occurrence of a terminal event," as set forth in the agreement between the parties. ² Thereafter, Mr. and Ms. Lieberman would "share all medical expenses for said children not covered by insurance."

The children needed and were provided with psychological services over a substantial period of time with payments being made directly to the health care provider. Unbeknownst to Ms. Lieberman, while the services were being rendered, Mr. Lieberman's carrier declined to cover further services, deeming them unnecessary. The carrier stated that a protest could be filed. Mr. Lieberman filed no protest and no further payments were made by the carrier.

Ms. Lieberman sought to resolve this problem but was unsuccessful. She then brought this petition which included a request for an adjudication of contempt and breach of contract. She contended that, over and above the agreement, the psychological services were necessitated by Mr. Lieberman's abandonment of the children.

The court in its memorandum and order expressly postponed a decision on the question of contempt:

"The Defendant alleges that the Plaintiff is in contempt of this Court's Decree by virtue of his failure 'to share in the payment of certain psychological services rendered to the children.' Paragraph Nine of the agreement, which was incorporated by reference into the Decree provides No reference was made to the failure to deal with the breach of contract claim.

                that 'Husband and Wife will share all medical expenses for said children not covered by insurance.'   The parties acknowledge that the Decree requires some clarification as to the respective obligations of the parties with reference to the payment of medical expenses not covered by insurance and for that reason the Court will reserve ruling on the alleged contempt so as to afford the parties an opportunity to act upon This [sic] Court's construction of Paragraph Nine.   This Court construes the word 'share' as used in Nine to mean that the Husband and Wife are to divide equally the cost of medical expenses of the children not covered by insurance."  (Emphasis added.)
                

Ordinarily, this reservation would preclude any appeal in the absence of a certification under Rule 2-602(b) since such action would result in "piecemeal" appeals. Preclusion is not the result here, however, as certain interlocutory orders are appealable. Maryland Cts. & Jud.Proc.Code Ann. § 12-303 (1974, 1984 Repl.Vol., 1989 Cum.Supp.), provides:

"A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:

* * *

* * *

"(3) An order:

* * *

* * *

"(v) For the sale, conveyance, or delivery of real or personal property or the payment of money, or the refusal to rescind or discharge such an order, unless the delivery or payment is directed to be made to a receiver appointed by the court."

That order, which did not address the contempt issue, increased payments to Ms. Lieberman from the date of the order to $1,500 per month per child and granted an additional $5,000 to her for counsel fees. Certainly, these two parts of the order are appealable since payments of money are involved. We cannot, however, review that Counsel for Ms. Lieberman urges us to enter an order under Rule 8-602(e)(3) that there is no just reason for delay and direct the entry of final judgment under Rule 2-602(b). The obvious response is that the parties would fare no better, since the order entered would relate to the already appealable interlocutory order. Since no final judgment on the construction of the medical provision or breach of contract has been entered, those claims remain unresolved. While both counsel urge us to conclude that implicit in the court's decision was the intention to enter a judgment for one-half the medical expenses, we cannot, in the exercise of appropriate appellate discipline, make such a leap. We will consider those portions of the order which are properly before us as interlocutory orders to pay money but will not reach the questions dealing with the interpretation of the word "share" of medical expenses, the matter of contempt or breach of contract.

                portion of the order dealing with the medical expenses and contempt request.   No order on this subject was entered by the court nor was one ever directed to be entered.   Had the court entered an order in accordance with its opinion as to the division of the medical expenses, we would have been in quite a different position.   See Frey v. Frey, 298 Md. 552, 555-57, 471 A.2d 705 (1984)
                

TAX-STRUCTURED FAMILY SUPPORT AGREEMENT

Lester Payments

Mr. and Ms. Lieberman entered into an agreement that was patterned on what has come to be known as Lester payments ³ after the case entitled Commissioner of Internal Revenue v. Lester, 366 U.S. 299, 81 S.Ct. 1343, 6 --The Contract--

                L.Ed.2d 306 (1961).   The question in Lester involved the validity of the payor spouse's deduction from his gross income of the whole of his periodic payments to his divorced wife pursuant to a written agreement entered into by them and approved by the court as a part of the divorce decree.   The agreement provided for a flat sum as family support but that "[i]n the event that any of the [three] children of the parties hereto shall marry, become emancipated, or die, then the payments herein specified shall ... be reduced in a sum equal to one-sixth of the payments which would thereafter otherwise accrue."   The Supreme Court held that the written agreement must specifically designate the amount of child support and not leave it to conjecture.  Lester, 366 U.S. at 306, 81

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