Pere v. Pere

MATTHEW PERE v. LORI PERE

No. 2279

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

August 19, 2016

UNREPORTED

Graeff, Arthur, Friedman, JJ.

Opinion by Arthur, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

The Circuit Court for Anne Arundel County rejected a husband's challenges to the validity of a separation agreement. Later, the court entered a judgment of absolute divorce, in which it enforced certain provisions of the agreement, decided issues pertaining to child custody, and awarded some attorneys' fees to the wife. The husband appeals. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Matthew Pere ("Husband") and Lori Pere ("Wife") were married on September 8, 1990. Three children were born into the marriage. Two of the children, a son and a younger daughter, were still minors at the time of the divorce in 2015. The son has since turned 18.

In March 2013 Wife discovered that Husband was having an extramarital affair. Wife confronted Husband, who claimed that he had ended the affair. Husband and Wife continued living together and began marriage counseling. In early April 2013, however, Wife learned that Husband had not ended the affair. Husband moved out of the marital home, and Wife retained counsel.

Despite the separation, Husband and Wife continued to pursue marriage counseling. Meanwhile, Wife and her attorney negotiated a settlement agreement with Husband, who did not engage counsel.

On June 7, 2013, the parties signed and notarized the agreement, which is styled as a "Voluntary Separation and Property Settlement Agreement." The agreement asserted that the parties had agreed to end their marriage, live separate and apart from one another, and cease having a sexual relationship. In fact, Husband and Wife both testified that atthis point they still wanted to attempt to repair the marriage. According to Husband, Wife insisted that he sign the agreement as a precondition to attempt at reconciliation. Husband testified that he signed the agreement because "she'd feel more comfortable."

The agreement itself contained provisions granting Wife $2,800.00 per month in alimony until April 15, 2035,¹ principal custody of the children, and child support. It gave Wife exclusive use and possession of the marital home until the parties' youngest child graduated from high school in approximately 2021, but made her responsible for the mortgage, taxes, and insurance payments on the home. In addition, the agreement divided the parties' assets. Most notably, the agreement stated that Wife would be entitled to half of Husband's military retirement income, including any military disability income.

Husband and Wife took steps towards reconciling with one another, and Husband moved back into the marital home, with Wife's consent, in August 2013. In late December 2013, however, Wife discovered that Husband's paramour was pregnant and that she was seeking child support from him. Wife ended the trial reconciliation.

On December 28, 2013, Husband signed a letter that Wife had prepared. The letter stated that, while the parties had believed that their agreement had been voided or suspended when they began their trial reconciliation, the parties now intended to be bound by it. Husband moved out, found his own apartment, and began to perform under the agreement by paying alimony and child support.

In October 2014, Husband obtained counsel and reentered the marital home without Wife's permission. Wife attempted to have the police remove Husband, but because she had only a separation agreement and no court order for use and possession, Husband had a legal right to remain in the home. Wife briefly moved to a hotel, but after a few days she was forced by financial circumstances to return home. She promptly commenced this action for a divorce.

While the divorce action proceeded, Wife and Husband lived in the marital home in a state of détente. Husband and the parties' son lived in the basement, while Wife and the parties' daughter lived in the rest of the house. Husband stopped paying the child support and alimony that the agreement required him to pay, but he did pay some of the household expenses, including the mortgage.

In the divorce litigation, Husband challenged the enforceability of the agreement. He claimed that, without his knowledge, he had signed a different version of the agreement from the one that he had approved. He also claimed that he had signed the agreement under duress, because his wife made his signature a precondition to any attempt at reconciliation. He claimed that the agreement was unconscionable because it required him to pay more than any reasonable person would have agreed to pay, and more than he could afford. Finally, he claimed that the parties had rescinded the agreement during their 2013 reconciliation and, again, during the "reconciliation" after he unilaterally moved back into the marital home.

In April 2015 the circuit court held a hearing on the enforceability of the separation agreement. The court upheld the agreement against Husband's allegations offraud, duress, and unconscionability. The court found that Husband's testimony, that he did not read the agreement before signing, was not credible, and that, at any rate, nothing prevented him from re-reading the agreement on the day he signed it. In addition, the court found that, even if there was some defect in the formation of the agreement, or if the reconciliation in 2013 operated to suspend the agreement, Husband had later reaffirmed and ratified the agreement.

Although the court upheld the agreement, it did not enter an order or judgment, as the divorce proceedings had yet to conclude. Husband did not move out of the house.

In November and December 2015, the court held five days of hearings on the remaining issues, including "counsel fees, use and possession of the family home, family use personal property, custody, visitation[,] and child support." Husband and Wife both testified, as did their adult child. In addition, the court interviewed the two minor children.

On December 18, 2015, the court entered a judgment of absolute divorce. The court refused to revisit its prior ruling on the validity of the agreement, which it incorporated, but did not merge, into the divorce judgment. Most notably, the court upheld Husband's agreement to pay alimony until 2035; the parts of the agreement giving Wife the exclusive use and possession of the marital home, as well as responsibility for the mortgage, taxes, and insurance, until the parties' youngest child graduated high school in 2021; and the agreement to divide Husband's military pension, including his military disability benefits.

The court did make a few minor changes to the agreement, awarding primary physical custody of both minor children to Wife and slightly modifying the parties' custody allotments. The court also modified the agreed amount of child support, from $2,164.00 per month to $1,807.00 per month, and then to $1,231.00 per month once the parties' minor son was no longer dependent on their support.

The court found that Husband had violated the agreement by moving back into the marital home without Wife's consent and by not paying the agreed amounts of child support and alimony during that time. The court, however, offset Husband's liability for unpaid child support and alimony by the amount of the mortgage payments that he had made during that time, as the mortgage is Wife's responsibility under the agreement. The court found that Husband owed Wife a net amount of $32,456.09, which he was to pay at $150.00 per month.

Finally, the court awarded Wife $11,700.00 in attorneys' fees, out of the $65,810.88 billed by her attorneys.

Husband filed this timely appeal.

QUESTIONS PRESENTED

Husband presents seven questions:

1. Did the trial court err or abuse its discretion when it upheld the parties' Voluntary Separation and Property Settlement Agreement dated June 7, 2013?

2. Did the trial court err or abuse its discretion in awarding custody?

3. Did the trial court err and abuse its discretion in awarding child support, including child support arrears?

4. Did the trial court err or abuse its discretion in awarding alimony, including alimony arrears?

5. Did the trial court err or abuse its discretion in awarding use and possession of the marital home?

6. Did the trial court err or abuse its discretion in making a division of marital property, including [Husband's] [Veteran's Administration] Disability benefits?

7. Did the trial court err o[r] abuse its discretion in awarding counsel fees?

We perceive no error or abuse of discretion.

STANDARD OF REVIEW

"[W]e review the trial court's factual findings for clear error, while each ultimate award is reviewed for abuse[] of discretion." Reynolds v. Reynolds, 216 Md. App. 205, 218-19 (2014). An "abuse of discretion" "has been said to occur where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles." North v. North, 102 Md. App. 1, 13 (1994) (citations and internal quotations omitted). "It has also been said to exist when the ruling under consideration appears to have been made on untenable grounds, when the ruling is clearly against the logic and effect of facts and inferences before the court, when the ruling is clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result, when the ruling is violative of fact and logic, or when it constitutes an untenable judicial act that defies reason and works an injustice." Id. at 13-14 (citations and internal quotation marks omitted).

On the other hand, to the extent that the rulings in question involve pure issues of law, we conduct a de novo review. See, e.g., Wilson v. Wilson, 223 Md. App....