Non-modifiable Alimony Terminates on
Remarriage
The Court of
Appeals of Maryland has held that unless a separation agreement
contains a clear and express provision to the contrary, the obligation
to pay alimony terminates on the remarriage of the recipient spouse.
Suzanne Gibbs
Jacobsen and Edwin Gibbons Moore, III were divorced on March 13, 2000
by the Circuit Court for Montgomery County, Maryland. The parties
entered into a voluntary separation and property settlement agreement
that provided for alimony 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 husband’s alimony obligation.
Jacobsen remarried
six months later on September 2, 2000, and immediately thereafter
Moore stopped making alimony payments. Jacobsen filed suit in the
Circuit Court for Montgomery County for the accumulated alimony
arrears and counsel fees. The Circuit Court rejected Moore’s argument
that he was relieved him of the obligation to pay alimony after
Jacobsen’s remarriage. The Court entered a judgment in favor of
Jacobsen in the amount of $8833.33, plus $750.00 in counsel fees.
Moore appealed the
decision to the Court of Special Appeals, which affirmed the judgment
of the trial court. The Court of Appeals granted Moore’s petition for
writ of certiorari to consider whether Moore’s obligation to pay
alimony terminated when Jacobsen remarried.
This case focused
on the interpretation of § 11-108 of the Family Law Article, MD Code
which provides 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.”
Moore argued that
the clear language of § 11-108 requires that unless the parties
agree otherwise alimony terminates on the recipient’s remarriage.
Since the separation agreement did not address the issue of
remarriage, he contended his obligation to pay alimony terminated.
He argued that an express agreement was required to continue alimony
after remarriage.
Jacobsen argued
that because the alimony was for a seven year period with a definite
termination date and because the alimony provision was stated to be
non-modifiable, the parties had “agree[d] otherwise“ as
required by Section 11-108.
The Court rejected
Jacobsen’s argument that the non-modification clause constituted an
agreement that alimony would not terminate on remarriage. The Court
said:
“Termination is
not synonymous with modification.. . . . Termination is not
modification and therefore is not prohibited by the nonmodifiability
clause in the separation agreement. Termination and modification of
alimony are, in fact, treated separately by and are wholly distinct
under Maryland law. . . . In contrast to modification, which
requires court action, termination occurs by operation of law and
thus does not require court action. The nonmodifiability clause of
the parties’ agreement does not operate to prohibit termination of
alimony upon remarriage. . . .”
Pointing out that
if the parties had intended that alimony would continue after
remarriage, they could have included an express provision in the
agreement, the Court stated that unless the parties expressly agree in
writing that alimony will continue beyond remarriage, the statutory
presumption that alimony terminates upon remarriage controls.
Judge Irma S.
Raker wrote for the Court, “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. “
Edwin
Gibbons Moore III v. Suzanne Gibbs Jacobsen,
No. 55, September
Term 2002, in the Court of Appeals of Maryland, filed February 21,
2003.
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