             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND

               No. 0405

         September Term, 2012


___________________________________


           NICK BERGERIS


                   v.


         JEANINE BERGERIS




   Meredith,
   Graeff,
   Rodowsky, Lawrence F.
          (Retired, specially assigned),


                   JJ.




        Opinion by Meredith, J.



         Filed: April 30, 2014
       On April 3, 2012, the Circuit Court for Montgomery County conducted a hearing

concerning a complaint for absolute divorce filed by Nick Bergeris (“Husband”), appellant.

Husband’s request for a divorce based on a twelve-month separation was opposed by Jeanine

Bergeris (“Wife”), appellee, who asserted that she had continued to have sexual relations

with Husband by way of “phone sex,” i.e., sexually explicit or provocative telephone

conversations and text messages. Section 7-103(a)(4) of the Family Law Article (“FL”) of

the Maryland Code (1984, 2012 Repl. Vol.) provides that a 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.” Husband conceded that he had engaged in sexually explicit

telecommunications with Wife during the twelve months preceding his claim for a divorce,

but he testified that there had been no physical contact of a sexual nature with Wife during

that period when they lived separate and apart.

       At the close of evidence presented by Husband with respect to his grounds for an

absolute divorce, the court ruled that he could not prevail, and the court dismissed the

complaint. The court ruled that, because Husband conceded that he and Wife had engaged

in phone sex, the court was precluded from finding that they had lived “without cohabitation”

during the time they lived separately for the 12 month period required by FL § 7-103(a)(4).

Husband noted this appeal.

                               QUESTION PRESENTED

       Husband presents a single question for our review:
       Whether the Circuit Court erred, as a matter of law, when it denied Appellant’s
       Complaint for Absolute Divorce when the parties met the statutory
       requirements for a divorce?

       We conclude that the court erred when it dismissed Husband’s complaint for divorce

based on the court’s finding that phone sex was a form of cohabitation within the scope of

FL § 7-103(a)(4). Accordingly, we reverse the judgment of the circuit court and remand the

case for further proceedings.

                       FACTS AND PROCEDURAL HISTORY

       Husband and Wife 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.

       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



                                              2
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.

       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.

       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 threshhold question of whether Husband could

establish grounds for an absolute divorce.1

       1
        Maryland Rule 2-502 permits a court to order a hearing on a specific question “if it
would be convenient to have the question decided before proceeding further.” The rule
provides:

               If at any stage of an action a question arises that is within the sole
       province of the court to decide, whether or not the action is triable by a jury,
       and if it would be convenient to have the question decided before proceeding
       further, the court, on motion or on its own initiative, may order that the
       question be presented for decision in the manner the court deems expedient.
       In resolving the question, the court may accept facts stipulated by the parties,
       may find facts after receiving evidence, and may draw inferences from these
       facts. The proceedings and decisions of the court shall be on the record, and
       the decisions shall be reviewable upon appeal after entry of an appealable
                                                                                 (continued...)

                                              3
       Husband 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 FL § 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.

       When Husband asked the court to clarify its ruling, the court responded as follows:

               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.

              And so if you go to [FL §] 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, which I think
       I’d referred to earlier, 257 Md. 263 [(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,

       1
        (...continued)
       order or judgment.

                                              4
          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.

(Emphasis added.)

          After all pending claims were dismissed by the court, Husband noted this appeal.

                                   STANDARD OF REVIEW

          Because the court dismissed Husband’s complaint at the conclusion of a hearing

conducted in accordance with Rule 2-502, we review the ruling under Maryland Rule 8-

131(c). In Crise v. Maryland General Hospital, Inc., 212 Md. App. 492, 519-20 (2013), we

stated:

                  As we explained in Bender [v. Schwartz, 172 Md. App. 648 (2007)], a
          circuit court decision under Rule 2-502, on a discrete issue that is solely within
          the court’s province, is essentially a trial by the court on the merits of that
          issue. 172 Md. App. at 664, 917 A.2d 142. The court may hear evidence and
          make factual findings necessary to its decision of the discrete issue that is
          within its province to decide. Therefore, the court’s decision on the issue is
          reviewed on appeal under Rule 8-131(c). Id.

          Accordingly, pursuant to Rule 8-131(c), we “will review the case on both the law and

the evidence.” Factual findings are reviewed under the clearly erroneous standard of review.

See Rule 8-131(c). Questions of law, however, are reviewed de novo. See State v. Neger,

427 Md. 582, 595 (2012) (citing Clancy v. King, 405 Md. 541, 554 (2008)).

          In this case, 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 FL § 7-103(a)(4).



                                                  5
We review the trial court’s ruling on a question of law de novo. We agree with Husband’s

contention that the circuit court erred in concluding that the parties’ phone sex constituted

cohabitation which prevented Husband from obtaining a divorce pursuant to FL § 7-

103(a)(4).

                                       DISCUSSION

       Section 7-103(a)(4) of the Family Law Article states that a court may grant an

absolute divorce “when the parties have lived separate and apart without cohabitation for 12

months without interruption before the filing of the application for divorce.” The revision

of FL § 7-103(a)(4) to its current form is described as follows in C YNTHIA C ALLAHAN &

T HOMAS C. R IES, F ADER’S M ARYLAND F AMILY L AW § 4-1 (5th ed. 2011):

              In Maryland, effective October 1, 2011, a no-fault ground of living
       separate and apart without cohabitation for 12 months allows the parties to
       obtain an absolute divorce. Effective on October 1, 2011, the absolute divorce
       ground of “voluntary separation” for 12 months will no longer exist, and the
       former ground of a “2 year separation” will become “12 month separation.”
       Proposed legislation to retain the ground of “voluntary separation,” but to
       reduce the period of voluntary separation from 12 months to 6 months failed
       during the 2011 Legislative Session.

(Footnote omitted.)

       Accordingly, the elements which must be demonstrated to establish grounds for an

absolute divorce under FL § 7-103(a)(4) after October 1, 2011, are [1] an uninterrupted

period of 12 months prior to the filing of the application for divorce, during which time the

parties lived [2] separate and apart [3] without cohabitation. In C ALLAHAN AND R IES, supra

at § 4-4[9][5], the authors explain:

                                              6
               “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. 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.

(Footnotes omitted.)

       The 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, 484 n.1 (2006) (quoting Gordon

v. Gordon, 342 Md. 294, 308 (1996)). See also Gordon, supra, 342 Md. at 308 n.11 (quoting

Perri v. Perri, 608 N.E.2d 790, 794 (Ohio Ct. App. 1992)) (“‘Sexual intercourse, in short,

is not the sine qua non of the cohabitation . . . .’”). 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, supra, 257 Md. at 268 (citing Lillis v. Lillis, 235

Md. 490, 495-96 (1964)).




                                                7
       Husband contends that he met the requirements of FL § 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 that 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. 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.

       At trial, Husband’s counsel pointed out that the court’s broad interpretation of

cohabitation to include phone sex would unduly complicate divorce proceedings, arguing:

               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.

       Wife, on the other hand, 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

                                              8
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.

       Wife directs our attention to a federal case, United States v. Fugit, 703 F.3d 248 (4th

Cir. 2012), which she claims stands for the proposition that sexual activity need not include

interpersonal physical contact. But that case is wholly inapplicable to this divorce

proceeding. In Fugit, the United States Court of Appeals for the Fourth Circuit reviewed the

criminal conviction of a man charged with soliciting a minor pursuant to 18 U.S.C. §

2422(b). Fugit, supra, 703 F.3d at 250-51. That case did not address the meaning of

cohabitation in the context of a divorce proceeding.

       Neither 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’s definition of cohabitation in cases such as Ricketts, supra, 393 Md. at 484 n.1

(quoting Gordon, supra, 342 Md. at 308), 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, supra, 257 Md. at 268 (citing Lillis, supra, 235 Md. at 495-96), 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.




                                               9
       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 (La. Ct. App. 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. Id. at 673-76. 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.’”

Id. at 676. But the trial court later granted the wife’s request for divorce after hearing

testimony from the husband and the neighbor’s wife. Id. at 677-78. 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. Id. at 679.

       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. 470 S.E.2d at 562-63. 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. Id. at 563 (citing

Matter of Estate of Trogdon, 330 N.C. 143, 151, 409 S.E.2d 897, 902 (1991)).




                                              10
       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 that 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.

                                                 JUDGMENT OF THE CIRCUIT
                                                 COURT FOR MONTGOMERY
                                                 COUNTY REVERSED. CASE
                                                 REMANDED FOR FURTHER
                                                 P R O C E E D I N G S  N O T
                                                 IN C ON SISTEN T W ITH THIS
                                                 OPINION. COSTS TO BE PAID BY
                                                 APPELLEE.




                                            11
