Mendelson v. Mendelson

• Court: Maryland Court of Appeals
• Writing for the Court: Argued Before GILBERT; BLOOM
• Citation: Mendelson v. Mendelson, 541 A.2d 1331, 75 Md.App. 486 (Md. App. 1987)
• Decision Date: 01 September 1987
• Docket Number: No. 1421,1421
• Parties: Erwin MENDELSON v. Helene MENDELSON. ,

Page 486

75 Md.App. 486

541 A.2d 1331

Erwin MENDELSON v. Helene MENDELSON.

No. 1421, Sept. Term, 1987.

Court of Special Appeals of Maryland.

June 9, 1988.

Shelby F. Mitchell (Leonard C. Greenebaum and Sachs, Greenebaum & Tayler on the brief), Chevy Chase, for appellant.

Sue Ann Mahaffey, Rockville, for appellee.

Argued Before GILBERT, C.J., and BLOOM and KARWACKI, JJ.

BLOOM, Judge.

Appellant, Erwin Mendelson, and appellee, Helene Mendelson, were divorced by a decree of the Circuit Court for Montgomery County on 30 March 1977. That decree incorporated but did not merge the separation and property settlement agreement executed by the parties on 14 July 1976, over a year after they separated.

Appellant paid spousal support to appellee, in accordance with their agreement, for approximately 9 years. In November 1985, however, he petitioned the court to terminate or reduce his support obligation because of appellee's "flagrant misconduct." Aggrieved by the circuit court's denial of his petition, appellant brought this appeal. Appellant must remain aggrieved; we shall affirm the circuit court's decision.

Facts

The parties were married in June 1957; they separated in 1975. On 14 July 1976, they entered into a separation and property settlement agreement, which provided, inter alia, that appellant would pay appellee "as alimony Twenty-two Thousand Eight Hundred Dollars ($22,800) annually in twelve (12) equal monthly payments of One Thousand Nine Hundred Dollars ($1,900) payable on the first day of each month...." This contractual spousal support was to be adjusted each August according to cost of living increases as set forth by the Bureau of Labor Statistics of the United States Department of Labor; it was to "cease upon the death of either party or upon the remarriage of the [appellee]." The agreement further stated that the appellee waived "any cause of action she may have to seek additional alimony or change the alimony provisions provided for in this Agreement, provided that the [appellant] does not breach ... [the] Agreement." The final provision concerning the spousal support dealt with the circumstances of how the support could be reduced. The agreement specified that if the appellant became disabled or retired at age 60 or thereafter, "the parties shall attempt to agree on alimony ... payments that are equitable in light of the [appellant's] changed financial resources"; should the parties be unable to reach such an agreement, then "either party may apply to a court of competent jurisdiction for such relief as may be appropriate."

Subsequent to the divorce, appellee met and developed a close relationship with one Manuel Epstein, who moved into appellee's home in 1981. Mr. Epstein pays some of the household expenses and generally maintains the home. Appellee covers the balance of the expenses.

On 22 November 1985, appellant filed a petition to reduce or terminate the contractual spousal support, asserting that a reduction or termination of the support was warranted because appellee's relationship with Epstein constituted a significant change in appellee's financial circumstances, thereby negating appellee's need for the support. In her answer, appellee admitted her relationship with Epstein but denied that the relationship lessened her need for the support or significantly changed her financial situation.

On May 5, 1987, the case came before a Domestic Relations Master. At the conclusion of appellant's case, appellee moved for dismissal, citing the failure of appellant to show a substantial change in financial circumstances. The master's factual findings, based on the evidence presented to him, were that Epstein's contributions were not disproportionate and that but for those extra contributions appellee would probably need an increase in the support, which was precluded by the separation agreement. Consequently, the master recommended dismissal of appellant's petition, stating that appellee's relationship with Mr. Epstein was not "flagrant misconduct" that would require termination or a reduction of the spousal support, nor did the relationship effect a substantial change in appellee's financial circumstances.

Appellant noted exceptions to the master's report and requested a hearing. The court granted a hearing and on 6 July 1987 orally overruled appellant's exceptions and affirmed the master's report. On 5 August 1987, appellant noted an appeal from that oral order. On 7 October 1987, the circuit court issued a written order overruling appellant's exceptions, thereby affirming the master's report. Appellant then noted an appeal from that order. ¹

The "Flagrant Misconduct"/"Change in Financial Condition" Argument

The parties refer us to a trilogy of cases from this Court concerning the kind of conduct that will permit a trial court to terminate or reduce alimony or spousal support. Appellant relies on Atkinson v. Atkinson, 13 Md.App. 65, 281 A.2d 407 (1971), and Roberts v. Roberts, 35 Md.App. 497, 371 A.2d 689 (1977), for his argument that appellee's cohabitation with Epstein constitutes "flagrant misconduct" which permits a trial court to reduce or terminate contractual spousal support. Appellee relies on Meyer v. Meyer, 41 Md.App. 13, 394 A.2d 1220 (1978), cert. denied, 284 Md. 746 (1979), for her argument that her post-divorce cohabitation does not in itself justify reduction or termination of the support, but that such cohabitation may only be considered where it is relevant to a change in her financial condition. Appellee asserts that since, as the master found, no change in her financial condition has taken place, her relationship with Mr. Epstein is irrelevant.

In Atkinson we noted that there was a conflict of authority as to what, if any, post-divorce conduct would justify termination of spousal support, recognizing that in some states "flagrant misconduct" had been held to justify termination, whereas other states had rejected that concept. 13 Md.App. at 71-72, 281 A.2d 407. We found it unnecessary to align Maryland with either faction, since the activities of the recipient of the support, which did not include "living with" another man outside of marriage, did not constitute "flagrant misconduct" in any event. 13 Md.App. at 73, 281 A.2d 407. In Roberts we adopted the suggestion in Atkinson that "flagrant misconduct" could be grounds for terminating post-divorce support, but again found that the alleged misconduct--alcoholism--did not amount to "flagrant misconduct." 35 Md.App. at 503-07, 371 A.2d 689.

Appellant would have us (1) firmly hold that which we merely suggested in Atkinson and Roberts, that "flagrant misconduct" is a cause for terminating post-divorce support, and (2) determine that, by openly living with Mr. Epstein without benefit of marriage, appellee is guilty of such "flagrant misconduct" as would require the application of that rule. Appellee, however, points to Meyer, in which we, after reviewing the authorities dealing with the question of whether post-divorce sexual conduct would be grounds for terminating alimony, held:

[T]hat alimony, awarded to a wife in a decree of divorce a vinculo matrimonii, may not be terminated or reduced solely because of her unchaste conduct subsequent to the divorce. That post-divorce conduct may, however, be considered when it is relevant to a change in financial condition.

41 Md.App. at 21, 394 A.2d 1220.

It would appear, therefore, that appellee has the better of it. Despite the earlier dicta in Atkinson and Roberts, Meyer flatly held that misconduct alone will not justify termination of alimony, only a change in financial circumstances, which may or may not accompany such misconduct, will require termination or modification of alimony. And as appellee points out, the master found that there had been no substantial change in financial circumstances and the chancellor accepted that finding. Appellant, of course, asserts that that finding is unsupported by, and contrary to, the evidence.

We need not resolve this dispute. We do not reach it because there is a more fundamental basis for affirming the denial of appellant's petition to terminate or modify support. By providing that their agreement should be incorporated but not merged in the divorce decree, the parties deprived the court of any post-enrollment power to end or diminish the contractual support for any reason not specified in the agreement. We explain.

"Incorporated But Not Merged"

Prior to Johnston v. Johnston, 297 Md. 48, 465 A.2d 436 (1983), and the companion case of Hamilos v. Hamilos, 297 Md. 99, 465 A.2d 445 (1983), it was quite common for counsel drafting separation and property settlement agreements to insert a provision to the effect that in the event of divorce the agreement should be incorporated but not merged into the decree. It was apparently believed that incorporation would make the agreement part of the decree while non-merger would preserve its contractual status. Thus, in the event of a breach, it was thought, the aggrieved party would have the choice of enforcing the decree or suing on the contract. Since such language is still being inserted in separation agreements, we suspect that Johnston has been ignored or misread.

In Maryland, the traditional definition of alimony was court ordered payments to a wife for her support to continue during the joint lives of both husband and wife and so long as the parties live separate and apart. Bebermeyer v. Bebermeyer, 241 Md. 72, 215 A.2d 463 (1965); Blades v. Szatai, 151 Md. 644, 135 A. 841 (1927); Hood v. Hood, 138 Md. 355, 113 A. 895 (1921); Newbold v. Newbold, 133 Md. 170, 104 A. 366 (1918); McCaddin v. McCaddin, 116 Md. 567, 82 P. 554 (1911); Wallingsford v. Wallingsford, 6 H. &amp J. 485 (1823). This traditional definition was modified by the passage of the Maryland Equal Rights Amendment, Md. Const. Decl. of Rights art. 46, thereby eliminating the gender bias stated in the traditional...