Moore v. Jacobsen

• Decision Date: 21 February 2003
• Docket Number: No. 55,55
• Parties: Edwin Gibbons MOORE, III v. Suzanne Gibbs JACOBSEN.
• Court: Maryland Court of Appeals

817 A.2d 212

373 Md. 185

Edwin Gibbons MOORE, III v. Suzanne Gibbs JACOBSEN.

No. 55, Sept. Term, 2002.

Court of Appeals of Maryland.

February 21, 2003.

Jon W. Sargent (Greenberg Felsen & Sargent, LLC, on brief), Rockville, for petitioner. Bruce M. Bender (Samuel D. Williamowsky of Van Grack, Axelson & Williamowsky, P.C., on brief), Rockville, for respondent.

Argued Before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, J.

This case requires us to interpret Maryland Code (1984, 1999 Repl.Vol.) § 11-108 of the Family Law Article,¹ which provides that unless the parties agree otherwise, alimony terminates on the death of either party, on the marriage of the recipient or if the court finds that termination is necessary to avoid a harsh and inequitable result. The issue we must decide is whether the provision in the parties' separation agreement obligating the husband to pay alimony to the wife terminated upon the wife's remarriage, despite the fact that the agreement provided that alimony was "non-modifiable" by a court and payable for a term of seven years, but did not make any express reference to § 11-108 or the effect of remarriage of the wife upon the right to receive alimony. We shall hold that, unless an agreement states explicitly that alimony survives a party's remarriage, alimony terminates on the marriage of the recipient spouse.

On March 13, 2000, the Circuit Court for Montgomery County granted Suzanne Gibbs Jacobsen, respondent, an absolute divorce from Edwin Gibbons Moore, III, petitioner. The parties entered into a voluntary separation and property settlement agreement which, inter alia, addressed property division, child support and alimony. The alimony provision of the agreement provided as follows:

"8.0 ALIMONY

8.1 The husband shall pay to the wife non-modifiable alimony in the amount of $833.33 per month commencing on April 1, 2000 and payable on the 1st day of each month thereafter for eighty-four consecutive months or until the payment due on April 1, 2007.

"The parties expressly covenant and agree pursuant to Section 8-101 through Section 8-103 of the Family Law Article Annotated Code of Maryland, that no court shall have the power to modify this agreement with respect to alimony, support or maintenance of either spouse except as provided herein."

Neither the divorce decree nor the settlement agreement incorporated into the decree contained specific language concerning the effect of remarriage upon petitioner's alimony obligation.²

Respondent remarried on September 2, 2000, and immediately thereafter petitioner ceased paying alimony. As a result, respondent sought a money judgment against petitioner equal to the accumulated alimony arrears and counsel fees. The Circuit Court rejected petitioner's argument that respondent's remarriage automatically relieved him of the obligation to pay alimony and entered a judgment in favor of respondent in the amount of $8833.33, plus $750.00 in counsel fees. Petitioner noted a timely appeal to the Court of Special Appeals, which affirmed the judgment of the trial court as to termination of alimony. This Court granted Moore's petition for writ of certiorari to consider whether, under the terms of the parties' agreement and § 11-108, his obligation to pay alimony terminated when respondent remarried. Moore v. Jacobsen, 370 Md. 268, 805 A.2d 265 (2002).

Petitioner first argues that the clear and unambiguous language of § 11-108 requires that alimony terminate on the recipient's remarriage unless the parties agree otherwise and, as a result, his obligation to pay alimony terminated because the parties' separation agreement was silent as to the issue of remarriage. He contends that § 11-108 requires an express agreement to continue alimony after remarriage. Second, petitioner asserts that termination is not a modification under § 8-103; therefore, the nonmodifiability clause is irrelevant.

Respondent argues in response that petitioner's obligation to pay alimony did not terminate on her remarriage because the parties agreed unambiguously that alimony was nonmodifiable for a seven-year period. She contends that the definite termination date of the alimony and the nonmodifiability provision in the agreement indicate that the parties agreed "otherwise" as envisioned by § 11-108. Because the separation agreement listed no exceptions to the nonmodifiability clause, the clear intent of the parties was that alimony would continue regardless of any subsequent events, and this Court must give effect to that intent. Furthermore, she argues that § 11-108, Termination of alimony, and § 8-103, Modification of deed, agreement, or settlement, must be read together and that termination is a form of modification under the statutory scheme. As such, the nonmodifiability clause prohibits termination of alimony.

We must determine whether respondent's right to alimony terminated upon her remarriage or whether the parties' agreement satisfied the "agree[d] otherwise" language of § 11-108. The Court of Special Appeals held that the terms of the alimony provision in the separation agreement, indicating that the alimony provision was nonmodifiable by any court and setting a finite endpoint for alimony payments, represented an agreement "otherwise."

We turn to the question raised by the parties. If alimony payments are to continue after remarriage of the recipient spouse, must the separation agreement include specific language indicating that to be the intent of the parties? We hold that the agreement must contain express and clear language evidencing the parties' intent that alimony will continue after remarriage of the recipient spouse; otherwise, pursuant to the language of the statute, remarriage terminates the obligation.

Section 11-108 states as follows:

"Unless the parties agree otherwise, alimony terminates: (1) on the death of either party; (2) on the marriage of the recipient; or (3) if the court finds that termination is necessary to avoid a harsh and inequitable result."

Section 11-108 requires that alimony terminate on the remarriage of the recipient unless the parties agree otherwise. The statute does not state whether the agreement must be in writing or whether the agreement must be provided expressly in the agreement or in the divorce decree. Nonetheless, we believe that unless the parties agree explicitly, in writing, the statutory presumption that alimony terminates upon remarriage controls. Under Maryland law, alimony historically terminated on the remarriage of the recipient spouse. In Knabe v. Knabe, this Court, laying out "the law of this State," noted that "alimony ceases unconditionally upon the wife's remarriage." 176 Md. 606, 613, 6 A.2d 366, 369 (1939) (citing Hood v. Hood, 138 Md. 355, 365, 113 A. 895, 899 (1921), and Emerson v. Emerson, 120 Md. 584, 595-96, 87 A. 1033, 1037-38 (1913)); see also Marshall v. Marshall, 164 Md. 107, 113, 163 A. 874, 876 (1933); Spear v. Spear, 158 Md. 672, 674-75, 149 A. 468, 469 (1930). Maryland law also recognizes the right of parties to contract in the area of domestic relations and recognizes the validity of settlement agreements. See Maryland Code (1984, 1999 Repl.Vol.) § 8-101 of the Family Law Article.³ Parties may draft separation agreements to meet particular needs. See Langston v. Langston, 366 Md. 490, 503, 784 A.2d 1086, 1093 (2001)

. The language of § 11-108 embodies these policies by mandating that alimony terminates on remarriage of the recipient spouse unless the parties agree that it does not.

The public policy set forth in § 11-108 clearly states that alimony does not survive the remarriage of the recipient. To create an exception to that policy, an agreement must be equally clear. We think a bright-line rule requiring an express provision providing that support shall not terminate upon remarriage fosters certainty, resolves ambiguity and reduces litigation. "To permit [the statute's] mandate to be overcome by implication would introduce ambiguity, encourage litigation and, thereby, undermine the statute's purpose." Radford v. Radford, 16 Va.App. 812, 433 S.E.2d 35, 36 (Va.Ct.App. 1993).

If the parties had intended that alimony would continue after remarriage, they should have, and could have, included an express requirement in the agreement. They included an express requirement in the agreement as to the termination of child support. See supra note 2. We do not construe the language contained in 8.0 of the agreement before us to evidence an intent of the parties that petitioner was required to continue to pay alimony to respondent for seven years, even if she remarries.

We reject respondent's argument that the separation agreement satisfied the requirement of § 11-108 in that the agreement provided that "no court shall have the power to modify this agreement with respect to alimony, support or maintenance of either spouse except as provided herein." Section 8-103(b), addressing the power of a court to modify a settlement agreement with respect to spousal support, reads as follows:

"The court may modify any provision of a deed, agreement, or settlement with respect to spousal support executed on or after January 1, 1976, regardless of how the provision is stated, unless there is a provision that specifically states that the provisions with respect to spousal support are not subject to any court modification."

It is obvious that the parties included the nonmodification provision to fall within § 8-103 and to preclude judicial modification. Termination is not synonymous with modification. Black's Law Dictionary 1004, 1471 (6th ed.1990) (defining modify as "[t]o alter; to change in incidental or subordinate features" and terminate as "[t]o put an end to; to make to cease; to end"). Termination is not modification and therefore is not prohibited by the nonmodifiability clause in the separation agreement. Termination and modification of alimony are, in...