Moustafa v. Moustafa

1

Moustafa M. Moustafa v. Miriam M. Moustafa

No. 0089-2021

Court of Special Appeals of Maryland

January 19, 2022

Circuit Court for Montgomery County Case No. 24933-FL

Fader C.J., Arthur, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Arthur, J.

A woman filed suit to collect more than a decade of alimony arrearages. Her former husband denied that he owed the arrearages and moved that his alimony obligation be reduced. The circuit court declined to reduce the alimony obligation and concluded that the husband owed over $300, 000 in arrearages.

The husband appealed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Moustafa Moustafa ("Husband") and Mariam Moustafa ("Wife") were married in Egypt in 1976, were divorced in 1985, and were remarried in Egypt in 1986.

On January 4, 2005, the Circuit Court for Montgomery County entered a judgment annulling the parties' marriage on the ground of bigamy: Husband had been married to another woman when he remarried Wife. Moustafa v. Moustafa, 166 Md.App. 391, 394 (2005). The judgment of annulment required Husband to pay Wife $5, 750 per month in permanent alimony.

On March 6, 2006, the parties entered into a settlement agreement in which Wife agreed that Husband's alimony obligation would be reduced to $2, 000 per month. On March 30, 2006, the court entered a consent order, which ordered that the judgment be "modified so as to reflect the terms of the Settlement Agreement between the parties filed herein." Attached to the order was the parties' settlement agreement.

It is undisputed that between 2006 and 2021 Husband paid a total of $6, 000 pursuant to the settlement agreement. He made the last payment in December 2006.

On October 9, 2019, Wife, representing herself, filed a Petition to Determine Arrears, Enforce Order, and for Contempt of Court. She asserted that Husband had failed to pay any alimony since 2006. In response, Husband filed a Motion to Decrease Alimony.

Through counsel, Wife filed an Amended Petition for Contempt Enforcement and Other Relief on September 20, 2020.

The circuit court held a two-day evidentiary hearing in March 2021. At the hearing, Husband argued, among other things, that the statute of limitations barred Wife's attempt to recover past-due alimony payments dating back to 2007. Although Md. Code (1974, 2020 Repl. Vol.), § 5-102(a)(3) of the Courts and Judicial Proceedings Article ("CJP"), establishes a 12-year statute of limitations for actions to enforce a judgment, Husband argued that that provision did not apply because the 2006 consent order did not expressly state that the parties' agreement was incorporated but not merged into the judgment. In his view, the general, three-year statute of limitations (CJP § 5-101) required Wife to file suit to enforce the agreement by March 6, 2009, three years after the agreement was signed.^[1] Husband also argued that in 2008 the parties had entered into an oral agreement, under which he claimed to have given Wife his ownership interest in a condominium in Egypt, which he said would generate $5, 000 a year in rent. In exchange, he said, Wife allegedly agreed to release him from his obligation to pay $2, 000 a month in alimony The alleged agreement was not in writing, according to Husband, because Wife did not want to jeopardize her ability to continue to receive government assistance. Wife completely denied these claims.

Finally, Husband argued that his poor health and financial obligations, including a new wife and several young children, made it impossible for him to satisfy an obligation to pay $2, 000 a month in alimony.

Following the hearing, the court denied Husband's motion to decrease alimony and granted Wife's petition for the payment of arrearages. The court concluded that the 12-year statute of limitations applied to Wife's action to enforce Husband's obligations even though the 2006 consent order did not expressly state that the parties' settlement agreement was incorporated into the judgment. The court found that Husband was not credible when he claimed that he could not afford to pay alimony and when he claimed that Wife had orally agreed to release him from his alimony obligations in exchange for the alleged transfer of the condominium in Egypt. In regard to Husband's ability to pay alimony, the court observed that he lived in a house that is worth more than $500, 000; that he has a swimming pool and a cleaning service that comes twice a month; and that he had recently obtained a home equity line of credit, which he used to pay off his own debts rather than his debts to Wife.

The court directed the entry of a judgment against Husband in the amount of $322, 000, representing the amount of the arrearages dating back 12 years from the filing of Wife's petition in 2019. Furthermore, the court ordered Husband to pay Wife's attorney's fees in the amount of $14, 000. Lastly, the court purported to sentence Husband to 15 days in the Montgomery County Correctional Facility, apparently for criminal contempt of the order requiring him to pay alimony, but allowed Husband to "purge" his contempt by paying the sum of $12, 000 to Wife.^[2]

After paying $12, 000 to avoid incarceration, Husband noted a timely appeal.

QUESTIONS PRESENTED

Husband raises three questions on appeal, which we have restated for clarity:^[3]

1) Did the trial court err in concluding that the statute of limitations did not bar Wife's claim for alimony?

2) Did the trial court err or abuse its discretion in rejecting Husband's contention that he and Wife had entered into an oral agreement to eliminate his alimony obligation in exchange for the transfer of a condominium in Egypt?

3) Did the court err in denying Husband's motion to terminate alimony?

For the reasons below, we affirm.

STANDARD OF REVIEW

On an appeal when an action has been tried without a jury, we apply the standard of review set by Maryland Rule 8-131(c):

When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

If there is any competent, material evidence to support the circuit court's findings, those findings cannot be clearly erroneous. See, e.g., Figgins v. Cochrane, 403 Md. 392, 409 (2008). "[W]e will not find clear error in a ruling based on a credibility determination." Collins v. Collins, 144 Md.App. 395, 413 (2002). This Court will "'accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.'" Boemio v. Boemio, 414 Md. 118, 124-25 (2010) (quoting Tracey v. Tracey, 328 Md. 380, 385 (1992)).

DISCUSSION

1. The Judgment and Consent Order

In Maryland, the general statute of limitations, CJP § 5-101, requires a person to file suit within three years after a claim accrues. The general statute of limitations is however, subject to exceptions. One of the statutory exceptions is CJP § 5-102(a)(3), which requires a person to file suit to enforce a judgment within 12 years. The first question in this case is whether Wife is attempting to enforce a judgment, in which case the 12-year statute of limitations would apply; or whether she is attempting to enforce a contract (the settlement agreement), in which case the general, three-year statute of limitations would apply.

Husband contends that the three-year statute of limitations applies and, hence, that Wife is barred from recovering any of the arrearages. He relies principally on Johnston v Johnston, 297 Md. 48 (1983), and Hamilos v. Hamilos, 297 Md. 99 (1983). He seems to argue that under those cases a settlement agreement becomes part of a judgment of divorce, such that an action to enforce the obligations under the agreement can be an action to enforce a judgment, only if the judgment expressly states that the agreement is incorporated but not merged into the judgment. We disagree with Husband's interpretation of the cases.

In Johnston, 297 Md. at 49, the Court of Appeals held that when a separation agreement is incorporated but not merged in a divorce decree, the agreement may not be collaterally attacked, because its validity has been established by the decree, which operates as res judicata. See also id. at 61 ("the approval and incorporation of the agreement conclusively established the validity of the agreement and precludes a collateral attack by either party"); id. at 66 ("where . . . the property settlement agreement is presented to the court for approval and is approved by the court and incorporated in the divorce decree, the validity of the agreement is conclusively established and the doctrine of res judicata operates so as to preclude a collateral attack on the agreement"). In reaching its decision, the Court observed that, "where the parties intend a separation agreement to be incorporated but not merged in the divorce decree, the agreement remains a separate, enforceable contract and is not superseded by the decree." Id. at 58. The Court also observed that its prior cases "firmly establish that once incorporated, the contractual provisions become part of the decree, modifiable by the court where appropriate and enforceable through contempt proceedings." Id. at 57.

In Hamilos v. Hamilos, 297 Md. at 104, the Court followed Johnston in holding that when a property settlement agreement was "made a part" of the judgment^[4] but not merged into it, the agreement "remained a separate, enforceable contract." Following Johnston, the Court also held that the doctrine of collateral estoppel prohibited the...