Publication

Offit Kurman is Successful in Reversing Alimony Award Where There Were No Grounds for Divorce

Intricately tracing Maryland’s alimony law from the Provincial Court of 1689 to the judicial chambers of the 21st century, Judge Charles E. Moylan’s recent opinion in Cruz v. Silva, 189 Md. App. 196 (2009) makes clear that the award of alimony and the granting of an actual divorce remain theoretically independent, but highly correlative varieties of statutory relief. Offit Kurman successfully represented the prevailing party. Specifically, the Cruz case presents cross-complaints for divorce that failed for lack of required corroboration. The judge overseeing the initial round of this bout elected not to continue or postpone the controversy to some future date when the marriage in question might be finally ended. Rather, the trial court denied all varieties of divorce while nonetheless entering an order for custody, child support and alimony. Custody and child support are regularly available, independent of divorce, but it was the alimony portion of the court’s order that gave rise to the controversy on appeal. Framing the issue, the Court of Special Appeals rhetorically inquired, “With the core issue of divorce excised from the case, what vitality, if any, remains in the extremities of 1) the grant of indefinite alimony and 2) the award of child support?” In the pursuit of an answer, the opinion casts aside simplistic and ham-handed statutory regurgitation in favor of a hefty and illuminating tour through the dust-clad archives of Maryland jurisprudence. It is from those aged records that the reference to the Provincial Court of 1689 emerges, and it is from those aged records that Judge Moylan observes the curious case of an historic bifurcation of alimony and divorce. Noting carefully the jurisdictional and procedural obstacles that long allowed these forms of relief to mature independently, Cruz ultimately observes, “What the Alimony Act of 1980 did, without so much as commenting upon it, was to preserve, like a fly in amber, the old and unusual Maryland procedure of applying for an award of alimony without requesting a divorce.” The court found, “To obtain alimony without a [divorce] decree, a spouse must prove a case that would on the marital merits entitle that spouse to a decree in his or her favor,” irrespective of whether or not a divorce is actually sought. In Cruz, not only did neither party prove a legally sufficient ground for divorce, but neither gave testimony which, if corroborated, might have established grounds for divorce. Judge Moylan, eloquently, holds, “Even if slipping off the radar screen, however, the procedure of requesting and receiving alimony without the granting of a divorce remains a legally viable one, and it was, therefore, available to the Wife in the case now before us.” Her problem was her inability to prove grounds for divorce even if she only wanted alimony. Is this new law? Not really. Ronald Ogens, Director of Offit Kurman’s Family Law Group, established the same principle almost thirty years ago in his representation of the prevailing party in Wallace v. Wallace, 290 Md. 265, 285 (1981).