July 2010 Archives

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.