February 3, 2013

Extraordinary Spousal Claims in Divorce Cases

In a Maryland Divorce case, there are some types of claims that may be raised in addition to the complaint for Divorce and requests for relief typically related to divorce cases. A recently published opinion involving a bigamous husband represents the tip of this legal iceberg for Maryland Divorce Lawyers.

Maryland long ago, abolished a cause of action for breach of promise to marry unless a party is pregnant as provided in Family Law Section 3-102. The law is in accordance with the popular notion that an engaged party is entitled to change his or her mind. However, experienced Maryland Divorce Lawyers know that there are aberrant cases in which there may be intentional or negligent misrepresentations related to promises to marry that constitute independent tort causes of action.

In Bradley v. Bradley, recently decided by the Maryland Court of Special Appeals, a woman sued her purported husband for intentional and negligent misrepresentation. During the course of a lengthy extramarital romance, Mr. Bradley told Ms. Bradley that he had divorced his first wife. While most disputes related to a divorce are decided by a judge, not a jury, wife was entitled to a jury trial. Not surprisingly, the jury did not take kindly this egregious deceit. The Baltimore County jury returned a verdict in favor of wife in the amount of $287,000 in compensatory damages, aggregated for the misrepresentation counts and the count for intentional infliction of emotional distress. The jury also awarded $1,000 each for two counts of battery, and $180,000 in punitive damages. The verdict was upheld on appeal because the trial judge, Honorable Kathleen Cox, took pains to weed out those parts of wife's claims that could properly serve as the basis for misrepresentation actions, and which claims were more appropriately construed as statutorily-barred actions for breach of promise to marry. The record was clear that the trial judge continually parsed the distinction between misrepresentation and breach of promise to marry claims during the trial. This was also done in connection with Ms. Bradley's claim for intentional infliction of emotional harm. She limited the evidence presented to the jury on this basis.

Bigamy is an extreme example of circumstances that may give rise to an "independent cause of action" at the time of divorce. The more common types of claim include assault, battery and sexual assault. A party, usually a woman who has been subjected to these types of wrongful conduct should raise these issues with her divorce attorney. An experienced trial lawyer will not hesitate to pursue such claims on behalf of a client, after evaluating the available evidence and making a cost-benefit analysis with the client. This includes the potential cost of litigation and prospects of winning and collecting on an award.

Another type of claim that should be evaluated at an initial consultation is a breach of contract in circumstances where the parties have been in business together. This latter situation needs to be considered hand in hand with a party's right as a spouse under Maryland's Marital Property Act and laws relating to alimony. As discussed in a previous post, Marital Property is an integral part of an initial consultation.


October 20, 2012

In Banc Review: An Alternative Tool for Disappointed Maryland Family Law Litigants

As a Maryland Divorce lawyer who is often approached by potential clients dissatisfied with trial court decisions in a variety of family law disputes, a recent opinion by the Court of Special Appeals that analyzes the constitutional right to an in banc review by a Circuit Court three judge panel caught my attention. As the Court of Special Appeals explained in Remson v. Krausen, this provision was adopted "to offer disappointed litigants an alternative method of review that was faster and less expensive than an appeal to [an appellate court in Annapolis]".

Remson v. Krausen is a divorce case in which the husband consented to an order that he refrain from contacting his estranged wife. Within thirteen days of the entry of this order, Wife filed a motion for contempt alleging that Husband had violated the no contact order. The judge, after hearing arguments, found that Husband had violated the order and was in contempt. He was sentenced to 30 days in prison that was suspended predicated on Husband's future compliance.

Many months later the case became a procedural nightmare with a twisting stream of motions and court rulings. The case wended its way through an in banc review and an appeal to the Court of Special Appeals.

Husband filed a motion to set aside the contempt order after many months on the grounds of his long term compliance. Counsel for Husband filed a motion to withdraw the motion to set aside the contempt order. This motion to withdraw seems to have crossed in the mail with the Judge's order setting aside the contempt. Husband's new attorney filed a motion to withdraw the motion to set aside that was granted. This vacated the judge's order setting aside the contempt, leaving the contempt order intact.

Husband's attorney blaming poor communication between himself and his client, asked the judge to reinstate the order setting aside the contempt. The judge denied this request.

Husband filed an in banc appeal that the three judge panel denied.

Husband then filed a motion then filed a motion to reconsider, alter or amend that the panel also denied.

This was procedural equivalent of a plate of spaghetti that went to the Court of Special Appeals. Without getting any further into the weeds on the court's decision, the major points of the holding are as follows:
1. The ruling of an in banc panel is conclusive on the party who sought it. The party who asked for the in banc panel review cannot appeal the party's disputes again to the Court of Special Appeals or the Court of Appeals. The party is bound by this substitute appeals process. The party who does not request the in banc review, retain all rights of appeal.
2. There can be no appeal to an in banc panel, unless the status of the case is such that it could be appealed to the Court of Special Appeals.
3. An in banc panel cannot review an issue that has not first been ruled upon by a Circuit Court judge.

MD Rule 2-551 governs the procedure for an in banc review. This alternative is available in family law cases including divorce, support, domestic violence, custody and visitation and marital property. Considering the current backlog implicit in the most recent annual report by the Court of Special Appeals, it is likely to be faster but does not cut-off an appeal by the opposing party. It may be less expensive. However in most but maybe not all counties, a three judge panel of circuit court judges is likely to be reluctant to overturn a ruling by a peer. Nevertheless, lawyers and their clients who have received an adverse decision in a family law case should be mindful that this as one of the tools in the tool kit.

October 15, 2012

International Aspects of Maryland Child Support

If you are involved in a child support case that is international in nature, searching for a Family Law attorney in the Maryland counties of Howard, Anne Arundel, Baltimore and Montgomery Counties can be a challenge. You want an attorney with experience and demonstrated skills. It has been estimated by the Federal Commissioner of the Office of Child Support that less than one percent of child support cases in state courts are international in nature. However, these important types of cases are growing in number and complexity.

International child support cases often involve substantial sums. They may require careful analysis of state, federal and foreign law. Often times, judges, who infrequently see international child support cases, need briefs from experienced legal counsel that apply the applicable laws to the facts of an individual case. For child support lawyers in locations like Howard, Anne Arundel, Baltimore and Montgomery Counties, changing demographics means more of these international child support cases. Another driver is that International mechanisms for establishing and enforcing child support orders are being strengthened.

The Office of Child Support Enforcement, an Office of the Administration for Children & Families in the U. S. Department of Health and Human Resources has responsibilities in this arena. A list of Foreign Reciprocation Nations can be found on its website at the Office of Child Support Enforcement website. Each of the Canadian provinces is separately listed because each operates under its own set of laws, courts and procedures, just as each of the U.S. states do. For each of these countries, the Office of Child Support Enforcement includes official reference documents that contain a wealth of information about child support laws and practice in each jurisdiction. For example, Maryland law does not normally provide for child support to support a child attending college, unless the parents have an agreement. On the other hand, an important issue in a case that my office has been working on, is that child support in a Canadian province may continue through graduate school. Similarly, the case workers guide to processing cases with the United Kingdom reveals that support can continue in Great Britain until a child finishes full time education. The case worker guides found on this website can provide a wealth of information such as whether there is a statute of limitations in claiming past due child support or claiming paternity, when and whether health care expenses can be added to child support calculations, whether child support be awarded for the period before it is claimed, how and when child support be modified This is an important source of information for individuals against whom child support is being claimed and persons seeking child support with an international aspect.

In some instances we have worked effectively with counsel in foreign jurisdictions. In other instances international cases have been successfully resolved with advocacy based upon state and federal law. Readers may also be interested in my prior posting on an international case involving a Pakistan divorce decree. There is also a prior posting describing a recent international child support case in which I submitted a memorandum of fact and law that convinced not only the presiding Master in Chancery but opposing counsel for the Office of Child Support Enforcement. This memorandum is attached to my website page on my International Aspects of Family Law page practice.


July 9, 2011

International Recovery of Child Support

Howard County Maryland has a diverse population from all over the world. In order to effectively serve these clients, Maryland Divorce and Family Law Lawyers need to stay abreast of international law issues. My previous postings have discussed international child kidnapping issues and a recent Court of Appeals opinion refusing to recognize a decree of divorce entered under the law of Pakistan that discriminates on the basis on gender.

One recent lawsuit in my practice involved various international agreements for the collection and enforcement of child support. These include the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance that has been ratified by the United States Senate. It also includes various agreements that have been negotiated between the United States State Department and various foreign nations. The list of reciprocating nations can be found on the website of the Office of Child Support Enforcement, Administration for Children and Families, U.S. Department of Health and Human Services.

The treaty and laws of most foreign nations recognizes personal jurisdiction over individuals under circumstances that would violate fundamental principles of due process under the United States Constitution. The format of this site does not permit a complete discussion of how the conflict of laws should be resolved. However, the leading case on due process issues involving family matters is Kulko v. Superior Court of California . My memorandum explains these issues in detail and was found to be persuasive by the Office of Child Support Enforcement and the Circuit Court for Howard County. It is posted in full as a part of my law office website discussion of the International Aspects of Family Law.

April 11, 2011

Right To A Paternity Test

A recent opinion by the Court of Special Appeals provides Maryland Family Law lawyers further guidance on the right of an alleged father to obtain genetic testing as a matter of right. A previous posting discussed the holding in Duckworth v.Kamp. In that case the court held that when a child is born during a marriage, the court must not order genetic testing without determining that such testing would be in the best interest of the child. On the other hand, in Corbett v.Mulligan the child was born after the parties were divorced. The court ruled that the alleged father had an absolute right to demand testing. Such testing must be ordered without regard to whether it was in the best interest of the child


The court's opinion explains the policy distinction between the two cases. In recent years, the federal government has required states to provide alleged fathers the right to genetic testing as a condition of federal funding. Maryland has complied. However the right is limited to "putative fathers". The phrase is interpreted to mean an "alleged biological father of a child born out of wedlock". The court explained that if mandatory testing could be invoked every time an individual seeks to establish paternity of a child born during a marriage the consequences to intact families could be devastating. Without regard to a child's best interest, courts would be forced to order genetic testing of every child whose paternity is merely questioned. The court concluded that this was never intended by the legislature in enacting sections 5-1002 and 5-1029 of the Family Law Article.

March 28, 2011

Dissipation of Marital Property & Burden of Persuasion

This posting is a companion to my March 20, 2011 discussion of Omayaka v. Omayaka. Maryland Divorce Lawyers will recognize that this is a rare opinion on family law by Maryland's Court of Appeals. As Maryland's highest court noted "dissipation of marital assets, as with many issues in the field of family law, has not been considered much of late by this Court. The majority of modern reported cases developing the doctrine of intentional dissipation of marital assets have been reported by the Court of Special Appeals."

The opinion upheld the trial court's decision declining to find dissipation by wife. She had made "over the counter" withdrawal of approximately $80,000 during an eight month period. Wife testified that these withdrawals were for "household goods, mortgages, clothes, to pay off credit card debt, and to send money to her minor children, somewhere." Husband pointed to her lack of receipts. He argued that her testimony strained credulity considering that she had a salary, received child support and had received $12,000 from refinancing of the house.

Wife prevailed. The court explained that the party alleging dissipation has the initial burden of proof. Proof that a spouse has made sizable withdrawals from bank accounts under his or her control is sufficient to support a finding of dissipation. Faced with prima facie evidence of dissipation, Wife then had to produce sufficient evidence to show that the expenditures were appropriate. However, the ultimate burden of persuasion remains with the party alleging dissipation. Husband simply failed to persuade the trial judge. While I have been successful in obtaining rulings of dissipation, Maryland Divorce Lawyers know that it is not uncommon for trial judges to reject claims that marital assets have been dissipated.

March 20, 2011

Dissipation of Marital Property Defined By Court of Appeals

Judge Murphy has written an opinion in Omayaka v.Omayaka that provides Maryland Divorce Attorneys with a useful guideline in any dispute over dissipation of marital property. Prior precedent on this topic has been limited to the Court of Special Appeals. This opinion is welcome because it comes from Maryland's highest court. Three prior postings published on the Maryland Divorce Attorney Blog describe the context in which disputes regarding dissipation can arise.


Dissipation has frequently been defined as occurring where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. In dicta, Judge Murphy provides a broader definition of dissipation pointing to opinions holding that gifts to paramours and excessive gambling losses constituted dissipation. He concludes that dissipation may occur in circumstances in which the marriage is not undergoing an irreconcilable breakdown and/or the dissipating spouse's principal purpose was a purpose other than "reducing the amount of funds that would be available for equitable distribution at time of divorce." He cites Judge John F. Fader' treatise on Maryland Family Law that dissipation occurs when marital assets are taken by one spouse without agreement by the other spouse.


The remainder of the opinion in Omayaka v.Omayka explains which party has the burden of proof, how that burden shifts and which party has the ultimate burden of persuasion. This is the subject of a companion posting on Judge Murphy's opinion.

March 15, 2011

Divorcing Party May Seek Damages For Tortious Conduct By Spouse

The abrogation of inter spousal immunity in Bozman vs. Bozman, has opened up a new set of issues for Maryland Divorce Lawyers and their clients. A party to a divorce, who is also the victim of tortious conduct, may be unable to obtain an adequate remedy under Maryland's laws governing the dispensation of justice in divorce proceedings. Such a party may consider seeking a remedy based on a civil cause of action. In such a dispute, either party would have the right to a trial by jury. A spouse who is the victim of a tort would seek both equitable relief within the context of laws regulating divorce and a judgment in a civil cause of action.

A prior posting discusses claims brought by a pro se lawyer that were soundly rebuffed in Lasater v. Guttman. This is not an invitation to the establishment of new causes of action peculiar to the institution of marriage. However, some well established torts need to be on the check list of Maryland Divorce Lawyers and their clients. Much but not all of the conduct under the definition of domestic violence would form the basis for a civil cause of action. A cause of action for negligent transmission of a sexually transmitted disease was recognized by the Maryland Court of Appeals in B.K. v. N.N.

As tort lawyers know, not every cause of action is worth pursuing. Maryland Divorce Lawyers and their clients will have to run a cost benefit analysis in such circumstances and keep an eye on the limitations period.

March 5, 2011

Same Sex Marriage Battle Takes Shape

As a Maryland divorce and family law attorney and former member of the House of Delegates, the actions of the General Assembly are always of interest. The 2011 session has more than its share of drama. I was surprised by the defeat of Senate Bill 116, the Civil Marriage Protection Act that would have expanded marriage to same sex couples. You can be sure that a bill that came so close to passage in 2011 will be back next year. The battle in the Maryland General Assembley has aroused passion from both sides. The opponents are prepared to take any bill to referendum if and when it is passed.

Article XVI of the Maryland Constitution requires that opponents of a bill obtain signatures of registered voters equal in number to 3% of the number of voters in the last gubernatorial election. This means approximately 55,000 valid signatures would be required. The deadline for filing at least 1/3 of the required signatures would be June 1 following the legislative session in which the bill is passed. The remainder would be due by the 30th of the same month. If the required signatures are obtained, the law would not go into effect until 30 days after it has been approved by a majority of the voters in the next election. Maryland would be the first state to obtain voter approval for same sex marriage.

Maryland courts have refused to wade into this issue. A deeply divided Court of Appeals in Conaway v. Deane held that there is no right to same sex marriage under the Maryland Constitution.

Maryland family law attorneys have some time to ponder best practices as it relates to same sex marriage. There are myriad issues that will arise because such marriages may not be recognized by the federal government and many other states. In a state with a large number of federal and military personnel, Maryland family law practitioners will need to keep a sharp eye on federal employment benefits laws and regulations that are likely to remain in a state of flux.


November 26, 2010

Confidential Relationship and Tort Liability Involving Divorcing Spouses

A prior posting, discussed a developing area of law for Maryland Divorce Lawyers resulting from the abolition of interspousal tort immunity in the 2003 opinion in Bozman vs. Bozman. In the 2010 opinion in Lasater vs. Guttman , various theories of tort liability (conversion, intentional infliction of emotional distress and fraud and breach of fiduciary duty) raised by wife were rejected on summary judgment and upheld on appeal. Perhaps the most instructive section of the opinion relates to wife's claim based upon husband's depletion of the parties' marital assets over decades while she occupied a position of trust and confidence in him.

The court distinguished the duties arising from a true fiduciary and those resulting from a confidential relationship. Absent an agreement that actually establishes a fiduciary relationship, for example creation of a partnership, husband and wife will not have a fiduciary relationship. On the other hand, a confidential relationship may be proven to exist, although it is not presumed. The proponent of a confidential relationship must show that he or she was justified in assuming that the other spouse would not act in a manner inconsistent with his or her welfare. Among the factors to be considered are the age, mental condition, education, business experience, state of health and degree of dependence of the spouse in question.

A confidential relationship may be used as an entree to setting aside a particular transaction such as an oppressive separation agreement. However Lasater vs. Guttman makes it clear that it cannot be used to vindicate a history of financial wrongs occurring during the course of a marriage. Such wrong doing will not become an independent cause of action. It will remain only one of many factors subsumed into the equity courts decisions about marital property and spousal support.

November 20, 2010

Tort Liability Involving Divorcing Spouses

Maryland Divorce Lawyers have received some important guidance from a recent opinion issued by Maryland's Court of Special Appeals. The opinion in Lasater vs. Guttman denied wife's far reaching claims arising from a divorce ending a chaotic marriage between two high powered Montgomery County Lawyers. The court upheld the trial court's summary judgment on wife's claim for conversion, intentional infliction of emotional harm, fraud and breach of fiduciary duty.

The need for clarification follows the 2004 decision by the Court of Appeals abolishing the doctrine of interspousal immunity in Maryland in Bozman vs. Bozman. It is one thing to allow an individual injured in an auto accident to sue his or her spouse for negligent driving. It is quite another to litigate alleged economic impropriety occurring over decades.

The court's bottom line is that the marital relationship does not automatically give rise to any duties that are actionable in tort. Any such claims must be consistent with traditional tort law. Lasater vs. Guttman will be particularly helpful in analyzing possible claims based on a breach of fiduciary duty or confidential relationship. This is the topic of another posting.

November 4, 2010

Protecting Privacy in Domestic Violence and Peace Order Cases

With the advent of almost universal access to the internet, domestic violence and peace order cases are readily accessed using the Maryland Judiciary Case Search. In the 2010 session of the Maryland General Assembly, advocates on all sides of the issue supported new law that will shield some domestic violence cases from general public access. As a former member of the House of Delegates' Judiciary Committee and a Maryland Family Law attorney who frequently handles domestic violence cases, I applaud this measured change. The new law, that is designed to protect personal privacy in Domestic Violence and Peace order cases, took effect on October 1, 2010.

Shielding precludes access by the general public; it does not preclude access by victim service providers, law enforcement officers, states attorneys, employees of the local department of social services and attorneys who have represented either party in a proceeding.

A respondent who has obtained a dismissal or denial at any stage of the domestic violence case, may file a request that the case records be shielded if certain conditions are met. There must be no prior domestic violence or peace orders that have been issued in any proceeding between the parties. There must be no proceedings currently pending. The respondent must execute a release of any tort claims arising from the alleged incident. The petitioner may object.

If there is an objection, the court will hold a hearing at which the court will determine whether there is "good cause" to shield the records. This requires the court to balance the privacy of and potential for adverse consequences to respondent versus the potential risk of future harm and danger to the petitioner and the community. For a broader understanding of the law relating to domestic violence, please see some of my prior postings on this topic.


September 9, 2010

International Law Meets Maryland Divorce Law

Howard County, Anne Arundel County and Montgomery County are only a few of the Maryland localities that have increasingly diverse international populations. In these jurisdictions, Maryland Divorce Lawyers and their clients are dealing with more and more international law issues like the ones resolved by the Court of Appeals in Aleem vs. Aleem. The dispute arose from husband's exercise of his right under Islamic and Pakistani laws to divorce under the doctrine of talaq. He also argued that wife had no right to his World Bank pension valued at over $1 million based on a Pakistani marriage agreement that was silent on the issue.

When the parties were married in Pakistan in 1980 wife was an 18 year old high school graduate and husband was a 29 year old doctoral student at Oxford. Over 25 years later, she filed for a divorce in the Maryland Circuit Court for Montgomery County seeking one half of his World Bank pension. He countered by going to the Pakistani Embassy in Washington D.C. and exercising his absolute right under Pakistani law to talaq (repeating "I divorce thee" three times") without so much as a phone call to his wife. Under Pakistani law, their marriage agreement that was silent on the issue of marital property meant that wife had no rights whatsoever.

The Court of Appeals held that it would not recognize a divorce of Maryland residents resulting from talaq. Citing the Equal Rights Amendment to the Maryland Constitution, it pointed out that the right to talaq was absolutely granted to a husband but a wife only had such a right if it was granted to her by her husband at the time of the marriage. The court refused to enforce such a discriminatory foreign doctrine. Next the Court decided not to enforce the Pakistani rule of law that if the marriage agreement is silent, upon divorce neither party has a right to the property of the other. Again the court held that such a rule violated the public policy of Maryland.

For a better understanding of Maryland Marital Property Law as it would be applied in this or any other cases, the reader may wish to refer to prior posts,

July 19, 2010

Non Modifiable Alimony Terminated On Second Attempt

In the law as in other human endeavors, a combination of good judgment and perseverance often pays off. Maryland Divorce Lawyers will recognize that these qualities combined with a bit of luck in the May 2010 ruling that Mr. Andrulonis obtained ending his alimony payments to his ex wife. In 1995 the Circuit Court for Baltimore County entered a judgment for absolute divorce to Joseph and Mary Andrulonis. As part of the judgment, Mr. Andrulonis was ordered to pay alimony in accordance with the separation agreement of the parties. According to the agreement, husband's alimony obligation was "non-modifiable". In 1998 wife remarried. Husband promptly filed a complaint seeking to terminate alimony pursuant to Section 11-108 of Family Law Article. This section provides for termination of alimony in the event of the remarriage of the recipient. The Circuit ruled against Mr. Andrulonis on the grounds that the alimony was "non-modifiable". He appealed to the Court of Special Appeals which affirmed the ruling against him.

Readers of my prior posting, Alimony and Remarriage of Recipient, will recognize immediately that this decision was at odds with the subsequent Court of Appeals 2003 decision in Moore vs. Jacobsen. Relying on this decision, Mr. Andrulonis filed a complaint asking the court to strike the wage withholding order by which alimony was being collected and enter a judgment against Mary for past three years of alimony that had been paid. The defenses that Mary raised included "law of the case" doctrine, collateral estoppels and claim preclusion. These rules generally prevent reopening a disputed issue that a court has wrongly decided in prior litigation. However, the opinion in Andrulonis vs. Andrulonis found public policy exceptions that applied to the facts of this case. While the Court terminated the obligation to pay alimony prospectively, it did not order Mary to repay any of the alimony she had received.

July 5, 2010

Alimony and Remarriage of Recipient

In 2003 the Court of Appeals clarified an issue that had been confusing for Maryland Divorce Lawyers and their clients. The Court of Appeals in Moore vs. Jacobsen considered the effect of wife's remarriage on her right to receive alimony. Section 11-108 of the Family Law Article provides that alimony shall terminate upon marriage of the recipient. However, ex- wife argued that the separation agreement, incorporated into the Decree of Divorce provided that her right to alimony was "non-modifiable". Two of the judges on the Court agreed with her argument that an agreement prohibiting modification should prohibit "the most radical type of modification", termination.

However, a majority of the Court sided with ex-husband, holding that under the Maryland Family Law statutes termination and modification were not synonymous. Therefore a provision that prohibited the court from modifying alimony under section 11-107 did not preclude termination under section 11-108 on account of a subsequent remarriage. According to the opinion, the parties' agreement can trump section 11-108. However, the agreement must contain express and clear language evidencing the intent of the parties that alimony will continue after remarriage of the recipient spouse. The court reasoned that its ruling would "foster certainty, resolve ambiguity and reduce litigation". For readers who are interested in more information about alimony modification, this topic was discussed in my prior postings, Can Alimony Be Modified in Hard Times and Rehabilitative Alimony, An Opportunity to Become Self Supporting. Another recent posting discusses the use of guidelines in setting the amount and duration of alimony.