Edwin Gibbons Moore, III, and Suzanne Gibbs Moore entered into a separation agreement on March 2, 2000.  A judgment of absolute divorce was entered by the Circuit Court for Montgomery County on March 13, 2000.  The separation agreement was incorporated but not merged into the divorce decree.

The separation agreement contained the following provisions for alimony to be paid by the husband:

“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 1^st day of each month thereafter for eighty-four consecutive months or until the payment due on April 1, 20007 (sic).
 

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.”  (Emphasis added by the Court).

 When Suzanne remarried a few months later, Edwin immediately stopped paying her alimony.  At the request of Suzanne, the lower court entered judgment against Edwin for the arrearage at that time of $8,333.33, and thereafter awarded Suzanne attorney’s fees in the amount of $750.  Edwin appealed to the Court of Special Appeals of Maryland.

Section 11-108 of the Family Law Article, Maryland Code provides that “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.” (Emphasis added by the Court).

Section 8-103 of the Family Law Article, Maryland Code, provides that a court may modify any provisions of an agreement with respect to alimony unless there is “a provision that specifically states that the provisions with respect to alimony or spousal support are not subject to any court modification.”

On appeal, Edwin argued that under Section 11-108 his contractual obligation to pay alimony terminated upon Suzanne’s remarriage because the parties did not “agree otherwise” in the separation agreement.  He considered that the silence of the agreement regarding remarriage of Suzanne required termination of his alimony obligation.

Suzanne argued that the agreement expressly provided that Edwin’s alimony obligation was “non-modifiable,” and expressly stated that no court could alter the terms of alimony.  Moreover, she pointed out that the agreement contained a precise date on which alimony would end.  Accordingly, Suzanne’s position was that the parties had “agreed otherwise” in the context of Section 11-108.

Judge Hollander’s opinion for the Court of Special Appeals contains an extended discussion of cases on statutory construction and on the construction of written contracts.  Rejecting Edwin’s “tortured construction of the Separation Agreement,”  the Court stated:

“We reject appellant’s effort to characterize the Agreement as‘silent’ on the matter of alimony in the event of remarriage. To be sure, there are no scripts to be followed in crafting a separation agreement, nor a litmus test that we can discern as to the precise language that must be used to create a binding agreement to continue alimony payments upon the payee spouse’s remarriage. Although it might have been preferable in this case if the parties had included text in their Agreement that specifically addressed the matter of alimony upon remarriage, the absence of such language does not compel the conclusion that the parties agreed to terminate alimony upon appellee’s remarriage. Moreover, neither party has suggested that the Agreement is ambiguous, nor do we regard it as unclear. To the contrary, applying the basic precepts of contract construction to the statutory scheme, we are satisfied that the Agreement leaves no doubt as to the obligor spouse’s continued duty to pay alimony, despite the oblige spouse’s remarriage.”

. . .  

“As we see it, then, the parties were anything but silent as to appellant’s alimony obligation.  Given that the parties expressly agreed that the alimony obligation is non-modifiable, that no court has the power to modify the Agreement with respect to alimony, and alimony is payable until a particular date specified in the Agreement, we have no difficulty in concluding that the Separation Agreement obligates appellant to continue to pay alimony to appellee, despite her remarriage.” 

Edwin was successful, however, in his argument that there was no basis for the lower court to award attorney’s fees absent statutory authority, a contractual provision, or Maryland Rule 1-341 which authorizes an award of attorney’s fees if a party acted in bad faith.  There was no statutory authority permitting the award of attorney’s fees nor did the separation agreement contain a provision for attorney’s fees.  Since Suzanne did not assert before the trial court that Edwin was acting in bad faith and the trial court made no findings on that issue, Rule 1-341 was not applicable.  Accordingly, the award of attorney’s fees was reversed.  The remainder of the judgment was affirmed.

Edwin Gibbons Moore, III v. Suzanne Gibbs Moore, Court of Special Appeals of Maryland, No. 1128, September Term 2001, filed May 6, 2002. 

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