This post examines an opinion recently issued by the Court of Special Appeals of Maryland in Bergeris v. Bergeris (2014). The court began its analysis of the issue in the case by explaining how it arose:
Husband [Nick Bergeris] and Wife [Jeanine Bergeris] married in Maryland on January 9, 2006. On June 30, 2010, Husband and Wife separated, and Husband moved out of the marital home because Wife had obtained a protective order against Husband. On July 6, 2010, Husband filed a complaint for limited divorce on the grounds of constructive desertion and voluntary separation. After the protective order expired at the end of six months, the parties continued to maintain separate residences.Bergeris v. Bergeris, supra. As this site explains, the state of Maryland “recognizes two kinds of divorce: limited and absolute.” If you are interested, the site explains how the two differ and outlines the bases for obtaining a divorce of either type.
Although Husband and Wife lived separate and apart, and although divorce proceedings were pending, they resumed a sexual relationship following the expiration of the protective order. Husband testified, however, that the last time he was physically intimate with Wife was in March 2011. At no time after March 2011 did Husband spend a single night under the same roof as Wife.
Nevertheless, Husband acknowledged that he and Wife continued to communicate via telephone conversations and text messages. At times, these conversations and text messages were of an explicit or provocative sexual nature. Consequently, Husband admitted that he had engaged in phone sex with Wife, and he claimed the last time he did so was in January 2012. Husband estimated that Wife visited his home, unannounced, six times between March 2011 and April 2012. According to Husband, however, he refused to allow Wife inside the house on any of those occasions, and he had no physical contact with her during that twelve-month period.
The opinion goes on to explain that on
March 28, 2012, Husband filed an amended complaint, seeking an absolute divorce on grounds of a twelve-month separation. Wife filed a motion to dismiss.Bergeris v. Bergeris, supra. In a footnote, the appellate court explains that Maryland Rule 2-502 lets a judge hold an evidentiary hearing on “a specific question `if it would be convenient to have the question decided before proceeding further.’” Bergeris v. Bergeris, supra.
On April 3, 2012, the court conducted an evidentiary hearing on Husband's claim for absolute divorce, and, because Wife's responsive pleading asserted that the couple had `cohabitated and engaged in marital relations’ while the case was pending, the court ruled that it would first hear testimony on the threshold question of whether Husband could establish grounds for an absolute divorce.
The issue before the judge was whether Nick Bergeris (Husband) had “met the statutory requirements of” Maryland Code of Family Law § 7–103(a)(4) “because he admitted he had engaged in phone sex with Wife during the twelve months prior to filing his complaint for absolute divorce on March 28, 2012.” Bergeris v. Bergeris, supra.
Section 7-103(a)(4) states that a Maryland court can grant an absolute divorce on this, among other, grounds: any of the following grounds: “12-month separation, when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce”. The issue, then, was whether they had “cohabited” in the year prior to his filing his complaint for an absolute divorce.
As the opinion explains, Nick Bergeris was
the only witness to testify relative to the issue of whether the couple's separation had been `without cohabitation.’ At the conclusion of Husband's testimony, the court ruled that Husband had not met the statutory requirements of § 7–103(a)(4) because he admitted he had engaged in phone sex with Wife during the twelve months prior to filing his complaint for absolute divorce on March 28, 2012.Bergeris v. Bergeris, supra.
When Nick Bergeris asked the judge to clarify his ruling, the judge responded this way:
`The testimony from Mr. Bergeris was that he admitted that after March 29th of 2011 that he and Ms. Bergeris had had phone sex. And he also admitted that he had had phone sex as recently as January of 2012. And so that period of time, that would amount to a nine or 10 month period of time, depending on the exact dates, to me constitutes phone sex within the year prior to the application for divorce. The operative application for divorce would be the March 28th, 2012, amended complaint at Docket Entry 109.’Bergeris v. Bergeris, supra (emphasis in the original). Nick Bergeris then appealed. Bergeris v. Bergeris, supra.
`And so if you go to § 7–103(a)(4), what it says is that [the court `may decree an absolute divorce’ on grounds of a `12–month separation when the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.’ So the time period, my understanding is, that you have to look back to is March 28th, 2012, going backwards to March 28th or 29th, 2011. It is that period of time. So if you look at the period from March 29th of 2011, until March 28th of 2012, there are admissions by Mr. Bergeris that he had phone sex with [Ms. Bergeris] as recently as January of 2012.’
`So it is those facts, plus my legal determination that the words “without cohabitation” under that statute, under the case of Smith v. Smith, . . . 257 Md. 263, 262 A.2d 762 (Court of Appeals of Maryland 1970), that this case tells me that without cohabitation means without sexual relations. It does not say without sexual intercourse. And so my judgment today, my view is that phone sex comes within the broader definition of sexual relations that is broader than sexual intercourse. And so that's why I find that there is, between the facts and my legal interpretation of this case and this statute, there is insufficient evidence of the lack of sexual relations during that period of time.’
The Court of Special Appeals began its analysis of his appeal by noting that under Maryland Rule 8-131, which applies when it is reviewing a court’s judgment in a case that was “ tried without a jury, the appellate court will review the case on both the law and the evidence.” Bergeris v. Bergeris, supra. It also explained that under Rule 8-131(c), “[f]actual findings are reviewed under the clearly erroneous standard of review” while, “[q]uestions of law . . . are reviewed de novo.” Bergeris v. Bergeris, supra.
The Court of Special Appeals then noted that in this appeal,
Husband does not dispute the court's factual findings. Rather, Husband contends that the court committed an error of law in ruling that phone sex constitutes cohabitation that precludes a party from obtaining a divorce pursuant to § 7–103(a)(4). We review the trial court's ruling on a question of law de novo.Bergeris v. Bergeris, supra.
The court began its analysis of the issue before it by noting, again, that to qualify for an absolute divorce under § 7–103(a)(4), which went into effect on October 1, 2011, the spouses must “`have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce.’” Bergeris v. Bergeris, supra.
It then quoted a Maryland family law treatise which explains that
`”Separate and apart” means that the parties cannot live under the same roof during the required statutory period. This is a requirement even if the parties have discontinued having sexual relations. `Without cohabitation’ means that there must be no sexual relations between the husband and wife living separate and apart with the intention and for the purpose of establishing this particular ground for divorce.’Bergeris v. Bergeris, supra (quoting Cynthia Callahan & Thomas C. Ries, Fader's Maryland Family Law § 4–1 (5th ed.2011)).
`The separation contemplated by the statute does not occur until the parties both cease living in the same house and cease having sexual relations. Both the absence of sex and the requirement that the parties live separate and apart must continue uninterruptedly for the statutory period and up to the date the divorce is granted before a party is entitled to an absolute divorce on the ground of [12 months'] separation.’
The Court of Special Appeals proceeded to explain that the Maryland Court of Appeals
has defined `cohabitation’ as a term that embraces more than a sexual relationship alone: `”[C]ohabitation” . . . describes a relationship of living together `as man and wife,” and connotes the mutual assumption of the duties and obligations associated with marriage.’ Ricketts v. Ricketts, 393 Md. 479, 903 A.2d 857 (Maryland Court of Appeals (2006) (quoting Gordon v. Gordon, 342 Md. 294, 675 A.2d 540 (Maryland Court of Appeals 1996)). . . .Bergeris v. Bergeris, supra.
The Court of Appeals has also reasoned, however, that the `without cohabitation’ provision in the statute governing grounds for divorce `proscribe[s] sexual relations between husband and wife living “separate and apart” with the intention and for the purpose of establishing this particular ground [i.e., separation for the statutory period] for divorce.’ Smith v. Smith, supra.
The Court of Special Appeals then returned to the issue in this case, noting that
Husband contends that he met the requirements of § 7–103(a)(4), and the court should have granted his request for an absolute divorce. Husband asserts that the court's reliance on Smith was misplaced, and his case is factually distinguishable. He argues that the couple in Smith had continued to have physical sexual relations during the period of their alleged separation.Bergeris v. Bergeris, supra.
Husband notes that the testimony in the record in the present case established only that he and Ms. Bergeris had engaged in telephonic communications -- which, he admits, included sexual and/or suggestive language -- during their separation.
It also explained that at the trial,
Husband's counsel pointed out that the court's broad interpretation of cohabitation to include phone sex would unduly complicate divorce proceedings, arguing:Bergeris v. Bergeris, supra.
`As I said before, I don't think phone sex negates the grounds here. And like I said, I don't think there's any authority to suggest otherwise. Also, there's no evidence here of what this was. I mean, I hate to, I don't want to have to get into these sorts of issues, but this is where we find ourselves. How dirty was the talk? How long did it last? What was said? I mean, I don't think that there's any way to verify that.’
`And there's been no evidence presented to say this was, we talked to [sic] four hours. Three of the hours we were fighting about our divorce case, or three hours and 57 minutes we were fighting about our divorce case, and then three minutes we had phone sex, whatever that is. There's no way to define that. Maybe that's part of the reason why there is no authority on that, because how do you, what sort of slippery slope is that? I mean, that's, people either engage in sex or they don't. You know, and there are other instances when people engage in things that fall just short of sex, but that involve[s] physical intimate touching. And I think that those things are within the ambit of what we consider when we're talking about cohabitation, marital relations, sexual relations.’
On the other hand, as the court also explained, Jeanine Bergeris
urges this Court to affirm the circuit court's ruling. She contends that the content of the text messages she proffered at the hearing would show that she and Mr. Bergeris actually engaged in physical sexual relations during the period of their separation. But the trial court did not admit Wife's proffered transcripts of the text messages for that purpose, and the trial court specifically avoided a finding that was at odds with Husband's denial of physical contact with Wife during the twelve-month period.Bergeris v. Bergeris, supra.
The Court of Special Appeals then began its ruling on the issue before it, noting that
[n]either party has directed our attention to a case from the Maryland courts discussing whether telephonic communications can constitute cohabitation. In view of the Court of Appeals' definition of cohabitation in cases such as Ricketts v. Ricketts, supra, and the precedent establishing that a couple purporting to live apart but engaging in physical sexual relations cannot be said to be living separate and apart, Smith v. Smith, supra, we hold that the circuit court erred in its determination that phone sex or sexual language in text messages constituted cohabitation that precluded the grant of an absolute divorce.Bergeris v. Bergeris, supra.
Courts of other states have indicated that extensive telephone conversations are not sufficient evidence to constitute adultery in the divorce context. In Marcotte v. Marcotte, 886 So.2d 671 (2004), the Court of Appeal of Louisiana reviewed a divorce action in which a wife sought a divorce based on her husband's adultery. The wife testified that she developed suspicions about her husband, based in part upon the husband's frequent telephone conversations with a neighboring friend's wife. Marcotte v. Marcotte, supra.
The trial court initially refused to grant a divorce, stating, ‘”the phone calls certainly show they were having some telephone contact, but . . . I don't think you can have sex using telephone calls. That's not adultery.”’ Marcotte v. Marcotte, supra. But the trial court later granted the wife's request for divorce after hearing testimony from the husband and the neighbor's wife. Marcotte v. Marcotte, supra. The appellate court reversed, finding that there was no evidence of a physical `sexual relationship’ constituting adultery between the husband and the neighbor's wife. Marcotte v. Marcotte, supra.
In Coachman v. Gould, 122 N.C.App. 443, 470 S.E.2d 560 (1996), the Court of Appeals of North Carolina rejected a husband's claim that his wife had committed adultery by virtue of her telephone calls. The husband testified that a man would call his wife almost daily, and the pair would talk on the phone about sexual matters. Coachman v. Gould, supra. The North Carolina court observed that `telephone calls and a car ride are not the type of “opportunities” for sexual intercourse required to demonstrate adultery.’ Coachman v. Gould, supra.
The Court of Special Appeals then issued its ruling:
In our view, occasional instances of telephonic or electronic communication talking about sex, unaccompanied by intimate physical sexual contact, do not rise to the level of cohabitation. Accordingly, we conclude the circuit court erred in dismissing Husband's complaint based on the court's factual finding that he and Ms. Bergeris engaged in phone sex as late as January 2012, which was within the year prior to the application for divorce, and that such conduct constituted cohabitation. We reverse the judgment of the circuit court and remand the case for further proceedings.Bergeris v. Bergeris, supra.
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