UNREPORTED IN THE COURT OF SPECIAL APPEALS OF

*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.

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2279

September Term, 2015

______________________________________

MATTHEW PERE

LORI PERE

______________________________________

Graeff,

Arthur,

Friedman,

JJ.

______________________________________

Opinion by Arthur, J.

______________________________________

Filed: August 19, 2016

‒Unreported Opinion‒

*Thi

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 at

‒Unreported Opinion‒

this 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,

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.

The duration of alimony corresponds with the duration of the marriage – 23

years.

‒Unreported Opinion‒

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 of

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fraud, 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.

‒Unreported Opinion‒

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?

‒Unreported Opinion‒

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).

‒Unreported Opinion‒

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. 599, 609,

cert. granted, 445 Md. 19 (2015), cert. dismissed, 446 Md. 287 (2016).

DISCUSSION

I. The Circuit Court Did Not Err or Abuse its Discretion in Rejecting

Husband’s Claims of Fraud, Duress, or Unconscionability

Husband attacks the validity of the agreement itself on three grounds: fraud,

duress, and unconscionability. The circuit court was well within its rights to reject each

contention.

A. Fraud

Husband claims that Wife, “through her counsel’s actions,” falsely represented

that the agreement contained only a single change from what the parties had previously

discussed. He claims that she succeeded in slipping the other changes past him because

he did not read the agreement before signing it. The court was not clearly erroneous in

rejecting that claim.

The court was unpersuaded by Husband’s testimony that he did not read the

agreement before signing, finding it incredible. “Although it is not uncommon for a fact-

finding judge to be clearly erroneous when he is affirmatively persuaded of something, it

is, as in this case, almost impossible for a judge to be clearly erroneous when [s]he is

simply not persuaded of something.” Bricker v. Warch, 152 Md. App. 119, 137 (2003)

(emphasis removed).

‒Unreported Opinion‒

Furthermore, the court found, contrary to Husband’s assertions, that “the parties

had many discussions” about the various terms of the agreement, including a written

exchange in which Wife agreed to accept less in alimony than Husband had offered.

Indeed, Wife testified that in late May 2013, two weeks before the parties signed the

agreement, they reviewed it at the marital home. On this record, it is utterly

unmeritorious to contend that Wife procured the agreement by fraud.

In any event, the circuit court was clearly correct, and by no means clearly

erroneous, in finding that Husband ratified the agreement. Husband signed the letter of

December 28, 2013, which stated that the parties intended to be bound by the agreement.

In addition, at that time, Husband moved out, found his own apartment, and began to

perform under the agreement by paying his alimony and child support obligations. A

person can ratify an agreement that was procured by fraud (see, e.g., Doe Mountain

Enters., Inc. v. Jaffe, 171 Md. App. 1, 17 (2006)), and the facts amply support the finding

of ratification in this case. See Blum v. Blum, 59 Md. App. 584, 594-95 (1984) (a party

ratifies a contract by failing to “act to repudiate the agreement promptly,” “by continuing

to act in accordance with the contract, or by continuing to accept or claim benefits

flowing from it”).

Husband claims that he undid the effect of his ratification and re-voided the

agreement when he “reconciled” with Wife by moving back into the marital home against

her wishes. Husband, however, may not unilaterally “reconcile” with his wife. While a

‒Unreported Opinion‒

spouse’s unilateral return to the marital home might destroy the grounds for some

divorces,

it has no effect on the validity of a separation agreement.

Separation agreements are governed by the law of contracts. Blum, 59 Md. App.

at 593. When one party disavows a valid contract, the contract remains valid, and the

party who disavowed it is in breach. Consequently, when Husband moved back in with

Wife against her wishes and in violation of the agreement, he did not invalidate the

agreement or undo his ratification of it: he breached the agreement. In these

circumstances, the circuit court was not clearly erroneous in concluding that Husband and

Wife had not demonstrated a mutual intent to set aside the agreement, which Husband

had ratified by performing his obligations under it.

B. Duress

Husband contends that he signed the agreement under duress. Duress involves:

“(1) A wrongful act or threat by the opposite party to the transaction or by a third party of

which the opposite party is aware and takes advantage, and (2) a state of mind in which

the complaining party was overwhelmed by fear and precluded from using free will or

judgment.” Meredith v. Talbot Cty., 80 Md. App. 174, 183 (1989) (quoting Food Fair

Stores, Inc. v. Joy, 283 Md. 205, 217 (1978)). The wrongful act done or threatened must

be either violent, illegal, or legal but “so oppressively used as to constitute an abuse of

See Maryland Code (1984, 2012 Repl. Vol.), § 7-103(a)(4) of the Family Law

Article (“FL”), which allows for a divorce “when the parties have lived separate and

apart without cohabitation for 12 months without interruption before the filing of the

application for divorce[.]” Wife did not need to rely on FL § 7-103(a)(4), because § 7-

103(a)(1) allowed for an immediate divorce on the grounds of Husband’s adultery.

‒Unreported Opinion‒

legal remedies.” Meredith, 80 Md. App. at 183-84 (citing Food Fair Stores, Inc., 283

Md. at 217). A contract signed under duress is voidable so long as the party under duress

acts reasonably quickly to void the agreement once the duress is removed.

“This Court will invalidate a separation agreement on the basis of duress in its

formation, but only when ‘the conclusion that the execution of the agreement was

obtained by duress is inescapable.’” McClellan v. McClellan, 52 Md. App. 525, 530

(1982) (quoting Eckstein v. Eckstein, 38 Md. App. 506, 518 (1978)). “[W]hether a threat

leaves the [party] bereft of the quality of mind essential to the making of a contract is a

factual determination,” which we will not reverse unless it is clearly erroneous. Simko,

Inc. v. Graymar Co., 55 Md. App. 561, 568 (1983).

In his effort to prove clear error, Husband argues that if he wanted to reconcile

with Wife, he “essentially” had no other alternative but to sign the agreement. The

equivocal adverb “essentially” gives away the game. Husband had an alternative – not to

reconcile with Wife. He signed the agreement because it gave him something that he

wanted – the opportunity to reconcile with her. He hoped or expected that the

reconciliation would succeed and that the agreement would become moot. Indeed, the

record establishes that Husband negotiated some of the terms of the agreement, even

offering an alimony payment that was more generous to Wife than the provision in the

final agreement. On this record, it would be an understatement to say that the court was

not clearly erroneous in rejecting his claim of duress.

This case is markedly different from Eckstein v. Eckstein, 38 Md. App. 506

(1978), the only reported Maryland case that has ever voided a separation agreement on

‒Unreported Opinion‒

grounds of duress. When the wife entered into the agreement in that case, she was

unemployed and had no money and no ability to engage counsel. Id. at 517. In fact, she

had no clothes other than the clothes she was wearing, and her husband had refused to

give her any clothes, to give her access to their jointly-owned car (which he had seized

and hidden), or to allow her to see or even communicate with her children unless she

signed the agreement. See id. He and his attorney refused to answer her questions about

the agreement. She had a history of mental illness, and the agreement was identical to

one that had prompted her to attempt suicide several years before. See id. at 509, 517.

On those compelling facts, which bear no resemblance at all to the facts in the record in

this case, this Court concluded that the circuit court was clearly erroneous in not finding

duress. Id. at 516.

Finally, just as a person can ratify a contract that was procured by fraud, so too can

one can ratify a contract that was made under duress. Even assuming, therefore, that

Husband could prove duress – which he plainly could not – the circuit court was not

clearly erroneous in finding that Husband ratified the agreement by signing the letter of

December 28, 2013, and by paying his child support and alimony obligations under the

agreement at least for the next 10 months.

C. Unconscionability

In his final assault on the separation agreement, Husband contends that it is

unconscionable. The circuit court disagreed. We review the circuit court’s decision for

clear error. See Williams v. Williams, 306 Md. 332, 338 (1986).

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Husband’s challenge appears to concern what the courts call “substantive” (as

opposed to procedural) unconscionability. To determine whether Husband has satisfied

his burden of showing substantive unconscionability (Stewart v. Stewart, 214 Md. App.

458, 478 (2013)), a court “‘must consider whether the terms in the [contract] are so one-

sided as to oppress or unfairly surprise an innocent party or whether there exists an

egregious imbalance in the obligations and rights imposed by the [contract].’” Li v. Lee,

210 Md. App. 73, 99 (2013) (quoting Walther v. Sovereign Bank, 386 Md. 412, 431

(2005)), aff’d, 437 Md. 47 (2014). “[A]n exactly even exchange of identical rights and

obligations between the two contracting parties before a contract” [is] not necessary

before the contract “will be deemed valid.” Id. (quoting Walther, 386 Md. at 433).

“‘[O]ne cannot be relieved of a contract merely because he may have made a bad

bargain[.]’” Williams, 306 Md. at 340 (quoting Straus v. Madden, 219 Md. 535, 542

(1959)).

Husband relies principally on Williams, which bears a superficial similarity to this

case because the husband signed a settlement agreement in the belief that it would

“effectuate a reconciliation.” Williams, 306 Md. at 333-34. In Williams, however, the

agreement called for “‘all of the assets of any consequence to go to the wife[.]’” Id. at

336 (quoting the circuit court). Even so, it called for “‘the obligations of supporting

those assets to continue to be that of the husband.’” Id. For example, the husband gave

up his interest in the marital home and in a new car, but agreed “to pay indefinitely the

mortgage on the marital home, the car loan, and all marital financial obligations.” Id. at

334. Most egregiously, “the husband’s total weekly financial obligations under the

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agreement would exceed his weekly net salary.” Id. On those facts, the Court of Appeals

upheld the circuit court’s finding of unconscionability.

Husband claims that “he executed an agreement which required him to pay more

than he could afford, in hopes of the execution of same further a reconciliation with

[Wife].” Other than this statement, however, Husband offers no basis to conclude that he

obligated himself to pay more than he could afford. We cannot evaluate, let alone accept,

an argument that Husband did not make. See, e.g., Blue v. Arrington, 221 Md. App. 308,

321 (2015).

Furthermore, the agreement in this case is far less onerous than the agreement in

Williams. In this case, the parties agreed to a roughly equal division of marital assets. In

Williams, by contrast, the wife “was to receive property valued at approximately

$131,000[,]” but “[t]he husband . . . would retain property valued at about $1,100.”

Williams, 306 Md. at 334. In addition, in this case, Husband retains an interest in the

marital home, will share in the proceeds of its eventual sale, and has no obligation to pay

the mortgage, taxes, or insurance while Wife has sole use and possession of it. In

Williams, on the other hand, the husband conveyed his entire interest in the home to his

wife, but obligated himself to pay the mortgage and, it appears, other household

expenditures. Id. In view of these material distinctions, the circuit court was not clearly

In his opening statement, Husband’s attorney told the court that Husband would

still earn about $93,000 after the payments that the agreement requires. Based on

counsel’s representation, it would not appear that Husband agreed to pay more than

earned.

‒Unreported Opinion‒

erroneous in finding itself unpersuaded by Husband’s attempts to liken this case to

Williams.

II. The Circuit Court Did Not Err or Abuse its Discretion in Judgment

Granting a Final Divorce

Husband challenges several facets of the judgment of absolute divorce: the

decision to award primary physical custody to Wife; the order requiring him to pay the

agreed amounts of child support and alimony (less an offset for the mortgage payments

that he made) during the time after he had unilaterally moved back into the marital home;

the order enforcing the agreement that Wife would have use and possession of the marital

home until approximately 2021; the order requiring Husband to comply with his

agreement to pay a portion of his military disability benefits to Wife; and the order

requiring him to pay a small portion of Wife’s attorneys’ fees. The circuit court was well

within its rights to reject these contentions as well.

A. Custody

The court awarded primary physical custody of both of the minor children to Wife.

Husband challenges the judgment as an abuse of discretion precipitated by unfair

questioning. Additionally, Husband contends that the court ignored his son’s preference.

As to the son, the issue of custody is moot. He is no longer a child, and even if we

were inclined to reverse the court’s exercise of discretion, we are left without any

appropriate remedy. While no Maryland court has squarely decided that a child’s

eighteenth birthday moots custody determinations, “[w]e lack the power to reverse time

in order to transfer the child’s custody” before his eighteenth birthday to Husband.

‒Unreported Opinion‒

Wagner v. Wagner, 109 Md. App. 1, 22-23 (1996). “In respect to this particular issue, no

remedy is now possible. The issue has become, by passage of time . . . moot.” Id. at 23.

When other state courts have faced this same issue, they have agreed that issues

pertaining to children become moot when a child is no longer a child. In Rhode Island,

when “[t]he older of the parties’ two children turned eighteen years old while this appeal

was pending,” the issue of child support became “moot as it concerns her.” Chiappone v.

Chiappone, 984 A.2d 32, 37 n.6 (R.I. 2009). In Montana, when a minor turned 18 during

an appeal involving a parenting plan, “[i]ssues related to the modification of the parenting

plan [became] moot because [the child became] an adult.” Cook v. McClammy, 350

Mont. 159, 161 (2009). We see no reason to deviate from this reasoning.

As to the minor daughter’s custody arrangements, we do not reverse a decision

“founded upon sound legal principles and based upon factual findings that are not clearly

erroneous” absent “a clear abuse of discretion.” Petrini v. Petrini, 336 Md. 453, 470

(1994) (citing Davis v. Davis, 280 Md. 119, 126 (1977)). We must defer to the “trial

court’s opportunity to observe the demeanor and the credibility of the parties and

witnesses.” Id.

Husband contends that the trial court’s custody determination was an abuse of

discretion because it rested, in part, on leading and improper questioning. Husband

points to one line of questioning, where the judge asked the parties’ daughter, “Do you

like living with Mom?,” and “Do you like seeing Dad?” Husband claims that the court

“assumed facts which were not accurate, i.e., that the daughter was living with her mother

and not her father, even though “the parties were both residing in the marital home with

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the children.” Husband suggests that other questions, involving which parent helped with

which homework assignments, were inappropriate. As a threshold matter, however,

Husband failed to object to any of these questions. Typically, we do not decide an issue,

other than one pertaining to jurisdiction, unless it plainly appears by the record to have

been raised in or decided by the trial court.” Md. Rule 8-131(a).

Even if we were to reach the merits, the testimony established that Husband lived

in the basement with their son, and Wife lived in the upper floors with their daughter.

Consequently, any supposition that the daughter lived with Wife was not “clearly

erroneous.” Additionally, even if we did believe that the question was at all

inappropriate, we would not be inclined to reverse for such a minor misstatement when,

as Husband has pointed out, the court was well informed that the daughter “love[d] both

of her parents and fe[lt] that they both love[d] her.” We have reviewed the allegedly

objectionable questions and see nothing more than a conscientious judge making an

admirable effort to put a child at ease in a trying situation.

B. Alimony and Child Support

After Husband moved back into the marital home without Wife’s consent in

October 2014, he ceased making the child support and alimony payments that he owed

under the agreement. The court ordered Husband to make those payments, but gave him

a credit for the mortgage payments that he had made during that time, as the agreement

requires Wife to pay the mortgage.

Husband claims that the court erroneously assessed child support and alimony

against him “in arrears” during the unilateral “reconciliation,” when he and Wife were

‒Unreported Opinion‒

living under the same roof. We disagree. The court enforced the parties’ agreement.

The agreement required categories of payments from Husband to Wife. Although the

parties contractually allocated those payments to alimony and child support, the payments

were not court-ordered alimony or child support. Hence, the court did not order Husband

to pay “child support arrears” and “alimony arrears,” as he claims; it ordered him to pay

damages for a breach of contract. We see no error.

The parties clearly intended that the child support and alimony would begin before

the divorce. The agreement specifies that Husband “shall pay” child support and alimony

to Wife and that those payments should be made “until the parties are awarded a

Judgment of Absolute Divorce.” Because “separation agreements are contracts and are

subject to the same general rules” as contracts (Blum, 59 Md. App. at 593), the court was

empowered to enforce the agreement.

Husband complains, however, that he was obligated to make those payments only

“so long as the parties live separate and apart from each other.” He contends that, by

unilaterally forcing his way back into the marital home in October 2014, he destroyed the

condition for the payments, namely, that the parties be living separately. His argument is

devoid of merit.

The circuit court determined that Husband had breached the agreement by moving

back into the marital home in violation of the provisions that neither party shall “seek to

compel the other to dwell with him/her by any proceedings for restoration of conjugal

rights or otherwise, or exert or demand any right to reside in the home of the other.”

(Emphasis added.) The testimony clearly showed that, after Husband unilaterally

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reinserted himself into the marital home, he and Wife lived parallel lives, with Husband

residing in the basement and Wife residing upstairs. The record contains nothing to

indicate that the parties were engaging in sexual intercourse or otherwise living as a

married couple. On that basis, the court determined, as a factual matter, that Husband

was not cohabitating with Wife, but rather had demanded, and then exerted, a “right to

reside in the home of the other,” in violation of the settlement agreement, which the court

had held valid. The court’s conclusion is galaxies away from being clearly erroneous.

C. Use and Possession

In the settlement agreement, Husband agreed that Wife should be allowed to

remain in the marital home until approximately June 2021, when the parties’ youngest

child will graduate from high school. Husband argues, without a single citation, that the

court abused its discretion by incorporating (but not merging) that portion of the

settlement agreement into the judgment of divorce. We disagree.

Husband correctly observes that a use and possession order must terminate within

three years of the divorce FL § 8-210(a)(1), but that the judgment grants Wife use and

possession for more than six years. The parties, however, have the power to agree to

conditions that the court could not order on its own. The court simply enforced the

agreement that the parties had made, as it is empowered to do. FL § 8-105(a)(2).

Under FL § 8-103, a court may modify an agreement in certain circumstances,

such as when it is in the best interests of a child to do so. In this case, however, that the

court determined that it was unnecessary to do so.

‒Unreported Opinion‒

Husband asks us to deviate from this scheme, but he cites no authority “to provide

a framework for our consideration.” Mathis v. Hargrove, 166 Md. App. 286, 318 (2005).

“Because we are unable to comprehend the legal theory [Husband] advance[s], we

decline to address this assignment of error.” Id. (citing Md. Rule 8-504(a)(5)).

D. Military Disability Income

In the agreement, the parties agreed that Wife was entitled to a portion of

Husband’s military pension, “including any future disability pay.” The parties

specifically agreed that, upon the entry of a judgment of absolute divorce, Wife would

receive 50 percent of Husband’s retirement benefits, “including future disability

payments.” In the judgment of absolute divorce, the court enforced that aspect of the

agreement.

Husband argues that this aspect of the judgment violates federal law, which

prohibits state courts from treating military disability payments as “community property.”

See 10 U.S.C. § 1408; Mansell v. Mansell, 490 U.S. 581 (1989). The short answer to

Husband’s contention is that, in incorporating but not merging the parties’ agreement into

its judgment, the court did not treat his disability payments as “community” (or, in

Maryland, “marital”) property. Rather, it enforced a private agreement whereby Husband

undertook to pay Wife an amount of money equal to half of what he received by way of a

military disability payment.

Maryland decisions have repeatedly affirmed that a spouse may validly agree to

make payments, out of general assets, in an amount equal to some portion of his or her

military disability benefit. See Wilson v. Wilson, 223 Md. App. 599, 629 (2015) (court

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had authority to enforce parties’ agreement to divide military pension, including military

disability payments); Allen v. Allen, 178 Md. App. 145, 155 (2008) (agreement that wife

would receive percentage of military retirement benefits meant that wife had contractual

right to military disability payments that husband received in lieu of service retirement

benefits); Dexter v. Dexter, 105 Md. App. 678, 683-84 (1995) (husband breached

agreement to pay percentage of military retirement benefits to wife when he waived right

to receive some benefits in favor of receiving military disability benefits; measure of

damages was amount wife would have received but for breach).

In enforcing such an agreement, a court does not treat the disability benefit as

marital property, divide it between the parties, and purport to require the federal

government to pay a portion of it to the other spouse; the court simply requires the

retired, disabled spouse to abide by a contractual obligation to pay a sum of money, equal

to a portion of the disability benefit, to his or her ex-spouse. See Allen v. Allen, 178 Md.

App. at 153-54 (“[t]he circuit court’s ruling… does not require payment to [the wife] of

any disability benefits”).

In this case, the parties did not require the government to pay a portion of the

benefits to Wife; they simply required that Husband and Wife receive the stipulated

share. Id. at 155. Husband can satisfy the judgment out of any of his assets; he need not

pay it out of his disability payments. See id. at 154. In enforcing such an agreement,

therefore, a court does not run afoul of federal law.

‒Unreported Opinion‒

E. Fees

Alleging an abuse of discretion, Husband challenges the appropriateness of the

$11,700.00 in attorneys’ fees the court awarded to Wife. Husband claims that the court

awarded those fees despite “question[ing]” their “reasonableness.” Husband further

claims that the trial court was “bias[ed]” and “frustrate[ed]” by the end of the trial and

that the award of attorneys’ fees was “clearly erroneous.” We disagree.

The court awarded Wife $11,700.00 out of the $65,810.88 in attorneys’ fees that

she had incurred (of which some $35,000.00 were unpaid at the time of the ruling). From

the court’s comments, it appears that Wife had incurred most of the fees while the parties

were litigating the validity of the agreement.

In reaching its decision, the court chastised Husband for his “gamesmanship” and

lack of “good faith” in trying to force a renegotiation of the agreement by moving back

into the marital home in the face of his agreement that Wife alone would have use and

possession of it. Nonetheless, the court found that Husband had the right to ask the court

to set aside the agreement. Consequently, the court awarded fees only for the period after

it had upheld the agreement.

Although the court did not expressly enunciate the authority for its award of fees,

it appears to have relied on one or more of various fee-shifting provisions of the Family

Law Article,

because it referred to the statutory factors concerning the parties’ financial

status, the parties’ needs, and the presence of substantial justification to bring, maintain,

In addition the court could have awarded fees under the agreement itself.

‒Unreported Opinion‒

or defend the proceeding. The court found that the parties’ incomes were relatively

equal; that Husband had the wherewithal to pay the (considerably smaller bill) from his

attorney; that Wife had a $15,000.00 tax refund, which would not defray the total amount

due to her attorneys; and that Husband should have resolved the dispute after the court

had declined to invalidate the agreement. In view of these findings, we have no basis to

conclude that the court abused its discretion in awarding Ms. Pere the fees that she

incurred after the court upheld the agreement. See Walker v. Grow, 170 Md. App. 255,

291-92 (2006).

The court found that Wife’s attorney’s rate was reasonable, but it did express

concern that Wife’s attorney had billed excessive amounts of time in connection with

depositions. The depositions, however, appear to have occurred in connection with the

challenge to the validity of the agreement, not in the period for which the court awarded

fees. Consequently, the court’s concerns do not in any way undermine the propriety of

its decision to award Wife about one-sixth of the fees that she incurred in connection with

these proceedings.

JUDGMENT OF THE CIRCUIT COURT

FOR ANNE ARUNDEL COUNTY

AFFIRMED. APPELLANT TO PAY ALL

COSTS.