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JULY 2008 MARYLAND BAR EXAMINATION

BOARD’S ANALYSIS

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QUESTION 1

Biff should consider the defenses of involuntary intoxication, voluntary intoxication, and not

criminally responsible.

Intoxication is a complete defense when it was involuntary and so excessive as to

temporarily deprive the defendant of his reason. Voluntary intoxication may be a defense if a

specific intent is an essential element of an offense, such as common law burglary and common law

larceny, and the defendant was so intoxicated as to be mentally incapable of entertaining the

requisite intent. Voluntary intoxication is not a defense to a general intent crime, such as “break and

enter a dwelling house.” Clark & Marshall, A Treatise on the Law of Crimes §§ 6.09-6.11 (7

ed.

1967).

The defense of intoxication may be available even if the intoxication resulted from use of

a substance other than alcohol.

In a case where a defendant becomes intoxicated as the result of willful ingestion of a

substance, an issue may be whether the intoxication is voluntary or involuntary. In a statute

“voluntary” requires that an act be intentional and the product of a free will. Wills v. Jones, 340 Md.

480, 677 A.2d 331 (1995). A person is considered to intend the normal consequences of an act by

that person. This raises the question of whether a reasonable person would know that anabolic

steroids may produce a state of intoxication.

Biff ingested a substance and was “barely-coherent” when the police arrived. He asserts that

his mind “went blank.” His motive for the theft is neither typical nor apparent. He made no attempt

to conceal the stolen articles. The facts should be sufficient to generate an issue as to whether Biff

was temporarily deprived of his reason. It may be inferred from these facts, if combined with expert

testimony as to the nature and cause (i.e., steroids), that he was either intoxicated or lacked criminal

responsibility, or both. Whether or not Biff was aware of the likely effects of his use of steroids, and

either freely and voluntarily assumed the risk, or whether he inadvertently and involuntarily became

intoxicated, may determine whether his intoxication, if any, was voluntary or involuntary, and

whether he can raise that defense to all charges or just to the charges of the specific intent crimes

of burglary and larceny.

A defendant is not criminally responsible for criminal conduct if, at the time of that conduct,

the defendant, because of a mental disorder, lacks substantial capacity to either appreciate the

criminality of that conduct or conform that conduct to the requirements of law. Md. Ann. Code,

Criminal Procedure Article, § 3-109. A “mental disorder” is a behavioral or emotional illness that

results from a psychiatric or neurological disorder. Md. Ann. Code, Health-General Article, § 10-

101(f).

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It is generally recognized that amnesia, in and of itself, is not a defense to a criminal charge.

An “amnesic episode” is not a mental disorder if it is not a mental, behavioral or emotional illness.

Automatism (or unconsciousness) is the state of a person who, though capable of action, is not

conscious of what he is doing. A person who acts automatically does so without intent, exercise of

free will, or knowledge of the act. Automatism is distinguished from insanity. Evans v. State, 322

Md. 24, 585 A.2d 204 (1991).

Biff’s mental condition and aberrant behavior, even if caused by the use of steroids, must be

the product of a “mental disorder” in order for Biff to assert a criminal responsibility defense. It is

sufficient if the “mental disorder” arose from the intoxicant, although intoxication of itself is not a

mental disorder.

Diminished capacity is not a defense to criminal culpability. Stebbing v. State, 299 Md. 331,

473 A.2d 903 (1984), cert. den., 469 U.S. 900.

In order to rely on a criminal responsibility defense, a defendant must file a written plea that

the defendant was not criminally responsible by reason of insanity. A defendant who is competent

is entitled to decide whether to raise the defense of criminal responsibility, and the defendant’s

decision is generally binding on the defendant’s attorney and the trial judge. A defendant must

establish the defense by a preponderance of the evidence through competent medical testimony. Md.

Ann. Code, Criminal Procedure Article, § 3-110; Treece v. State, 313 Md. 665, 547 A.2d 1054

(1988).

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QUESTION 2

There are two issues pertaining to the contract and its non-competition clause: 1. is it

enforceable under Maryland's Statute of Frauds and 2., assuming it is enforceable, are there

public policy reasons militating against enforcement?

1. The Statute of Frauds

The Maryland Statute of Frauds, codified in pertinent part in Courts and Judicial

Proceedings Article ' 5-901, provides:

No action may be brought:

(3) Upon any agreement that is not to be performed within the space of one year

from the making thereof[.]

Unless the . . . agreement . . . or some memorandum . . . is in writing and signed

by the party to be charged . . . .

A multi-year obligation, such as the contract at issue, clearly falls within the purview of

'' 3. General Fed. Const., Inc. v. James A. Federline, Inc., 283 Md. 691, 695, 393 A.2d 188

(1978). Since there is no current contract signed by Cal, the court must "look to find whether the

contract is enforceable under equitable theories of estoppel or part performance" Friedman &

Fuller v. Funkhouser, 107 Md. App 91, 100, 666 A.2d 1298 (1995) (disapproved, in part, on

other grounds, Pavel v. A. S. Johnson, 342 Md. 143, 166, 674 A.2d 521 (1996). Several

arguments can be made on behalf of MPES.

The doctrine of part performance is premised upon the notion that it would be unfair to

allow a party to escape his performance of an oral agreement after he has permitted the plaintiff

to perform in reliance on both the agreement and the defendant's inducements.

Cal submitted bonus statements to MPES, which paid them. The "acceptance of bonus

monies . . . cannot be construed as anything other than compensation pursuant to the

employment agreement [that Cal] now seeks to avoid. [Cal] was not otherwise entitled to such

payments, and [MPES] would not have paid same in the absence of what it perceived to be a

legally binding contract. There can be no other interpretation of the facts." Friedman & Fuller v.

Funkhouser, supra, at 108 - 109.

The terms of the oral contract can also be enforced on the basis of estoppel. A party to an

oral contract will be estopped from denying its enforceability when:

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1. there has been a clear and definite promise;

2. where the promisor has a reasonable expectation that the offer will induce

action or forbearance on the part of the promisee;

3. which does induce actual and reasonable action or forbearance by the

promisee; and

4. causes a detriment which can only be avoided by the enforcement of the

promise.

Pavel v. A. S. Johnson, 342 Md. 143, 166, 674 A.2d 521 (1996). Here, the president of MPES

stated that Cal would continue to work under the standard employment contract and Cal

promised to do so. Cal was compensated accordingly and MPES has relied to its detriment.

Thus MPES has two sound arguments that Cal is bound by the terms of the contract.

Whether a court will enforce the contract is another issue however.

2. The Enforceability of the Non-Competition Clause.

In Maryland, as in most jurisdictions, the general rule is that:

restrictive covenants in a contract of employment, by which an employee as a part

of his agreement undertakes not to engage in a competing business or vocation

with that of his employer on leaving the employment, will be sustained >if the

restraint is confined within limits which are no wider as to area and duration than

are reasonably necessary for the protection of the business of the employer and do

not impose undue hardship on the employee or disregard the interests of the

public.=

Ruhl v. F. A. Bartlett Tree Expert Co., 245 Md. 118, 123 - 124, 225 A.2d 288 (1967) ( quoting

MacIntosh v. Brunswick Corp., 241 Md. at 31, 215 A.2d at 225 (1965)).

In this case, the non-competition provision is for three years and has a geographical

extent of 250 miles. It extends to "any entity", not simply MPES's competitors or existing

clients. The non-competition clause, if enforced literally, would bar Cal from providing civil

engineering services to federal, state and local governments as well. In light of these factors, the

non-competition clause can be viewed as imposing an undue burden upon Cal and disregarding

the interests of the public by depriving it of Cal's services. Under these circumstances, in the

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exercise of its equitable powers, a court might either decline to enforce the clause in its entirety

or to modify the clause, a process sometimes referred to as "blue penciling." Holloway v. Faw,

Casson & Co., 319 Md. 324, 352,572 A.2d 510 (1990).

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QUESTION 3

A. Able’s Challenge

Able is directly affected by the Board’s actions and therefore has standing to

challenge her terminations.

Able may not be successful in challenging her termination as pastor because the

Church’s decision may not be subject to government review per the First Amendment (“In

interpreting the First Amendment freedom of religion provision, the United States Supreme

Court noted that religious organizations required ‘an independence from secular control or

manipulation – in short, power to decide for themselves, free from state interference, matters of

church government as well as those of faith and doctrine. Kedroff v. St. Nicholas Cathedral, 344

U.S. 94, 116, 73 S. Ct. 143 (1952) . . . . The First Amendment provides religious institutions with

significant freedoms with regard to matters concerning ‘theological controversy , church

discipline, ecclesiastical government, or the conformity of the members of the church to standard

of morals required of them’” [Citations omitted] Bourne v. Center on Children, Inc., 154 Md.

App. 42, 52-53 (2003)). Thus, courts generally do not get involved in employment controversies

concerning employees “who are involved in the religious activities of the organization”, Bourne,

at 54. The Board will successfully argue that a Pastor is involved in the religious activities of the

church and the matter is not subject to further court review.

If the position is secular in nature (non-religious), however, the Court may

examine the duties performed and allow the employee to pursue his/her claims against the

religious group. See, Archdiocese of Washington v. Moerson , 399 Md. 637 (2007) Perhaps

Able could successfully argue that running the daycare is a secular position, especially since it is

open to children whose parents are not members of the Church, and the Church had no legal

bases to terminate her.

B. Seth’s Challenge:

In Flast v. Cohen, 392 U.S. 83 (1968) (recently limited in application by Hein v.

Freedom from Religion Found, Inc., 127 S. Ct. 2553 (2007)) the Supreme Court opined that a

taxpayer may have standing to challenge congressional spending on grounds that it violates the

Establishment Clause. Maryland also grants taxpayers standing to challenge legislation.

Accordingly, Seth will have standing to challenge the County’s law.

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The First Amendment made applicable to the States via the Fourteenth Amendment,

prohibits the enactment of a law “respecting an establishment of religion, or prohibiting the free

exercise thereof.” As noted by the Supreme Court in Larkin v. Grendel’s Den, Inc., 459 U.S.

116, 122 (1982), “[t]he purposes of the First Amendment guarantee relating to religion were

twofold: to foreclose state interference with the practice of religious acts, and to foreclose the

establishment of a state religion. . ..”

In Lemon v. Kurtzman, 403 U.S. 602, 91 S.,Ct. 2105, 2111 (1971) the Supreme

Court articulated a 3-prong test to determine whether the Establishment Clause has been

infringed:

Every analysis in this area must begin with consideration of the cumulative

criteria developed by the Court over many years. Three such tests may be gleaned from

our cases. First, the statute must have a secular legislative purpose; second, its principal

or primary effect must be one that neither advances nor inhibits religion …; finally, the

statute must not foster an ‘excessive government entanglement with religion.’

Seth may successfully argue that the law is violative of the Establishment Clause

because it promotes enrollment in the church-sponsored day care and has no secular legislative

purpose.

Finally, Seth may challenge the law as a violation of the Equal Protection Clause of the

Fourteenth Amendment. The Equal Protection Clause requires a showing that the law advances

a legitimate purpose and does not unreasonably discriminate. Day care ownership is not a

fundamental right; however, even under the more lenient rational basis analysis a court should

invalidate the County’s law.

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QUESTION 4

(A) Commercial Law Article, section 1-201 (37) (b) states that an agreement

to pay the license fees and taxes, keep the equipment in good repair, the assumption of the entire

risk of loss of the equipment, and the option to become the owner of the hardware and software,

all of which were part of Jasper ‘s transaction, do not create a security interest. However, on the

given facts, the transaction did create a security interest in the hardware and software in favor of

Poindexter as the consideration Jasper was to pay Poindexter for the right to possession and use

of the hardware and software was an obligation for the term of the lease not subject to

termination by Jasper and the original lease term was equal to the remaining economic life of the

hardware and software. Commercial Law Article, section 1-201 (37) (a). On the given facts,

Jasper agreed to pay $90,000 over the agreement period for the right to possession and use of the

hardware and software. The given facts do not state or suggest any termination right of Jasper.

The original term of the agreement was 3 years and the remaining economic life of the hardware

and software was projected by the parties to be 3 years.

(B) Under the given facts, the notice was sent after default and more then 10 days

before the earliest time of the private sale. Commercial Law Article, section 9-612 (b). However,

it stated that if the hardware was not redeemed within 15 days of delivery of the notice that the

hardware would be sold at a private sale.

This was a misstatement of the time as the private sale actually occurred several months

later. Commercial Law Article, section 9-623 (c) (2) provides that a redemption may occur at any

time before Poindexter disposed of the hardware. Jasper actually had until the private sale occurred

several months later but was not notified of that time. The notice given was not reasonable

notification because it was less favorable to Jasper than it was in law. First National Bank of

Maryland v. DiDememico, 302 Md. 290, 295, 487 A.2d 646 (1985).

15-day period and the private sale did not occur until several months after the notice. Reasonable

notice is a condition to a deficiency judgment. This defective notice prevents the deficiency

judgment. First National Bank of Maryland v. DiDememico

, 302 Md. 290, 297, 487 A.2d 646

(1985); Maryland National Bank v. Wathen

, 288 Md. 119, 414 A.2d 1261 (1980); see Commercial

Law Article, section 9-623 (c) (2).

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QUESTION 5

An action for tortious interference with contractual relations is applicable to

professional service contracts between attorneys and clients. An attorney has a legitimate

interest in a contingent fee contract.

If acting in good faith, a client may settle his claim directly with the defendant or the

insurance carrier without his attorney’s knowledge or consent.

An insurer has a right and duty to enter into good faith negotiations where reasonable

and feasible to settle a claim. This right does not include interference with a lawyer’s legitimate

interest in a contingent fee contract by improperly engaging in conduct calculated to induce or

persuade the client to discharge the lawyer and settle his claim directly with the insurer.

To be actionable, the conduct of the insurer (ABC) need not be egregious but only

intentional for the improper purpose of inducing the client to settle directly with the insurer.

Any purposeful conduct, however subtle, by which an insurer improperly and

intentionally induces or persuades a claimant to repudiate his contingent fee contract and settle

directly with the insurer, is actionable.

There is no technical requirement as to the kind of conduct that may result in

interference with the third party’s performance of the contract. The interference is often by

inducement which may be any conduct conveying the other’s desire to influence the client not to

deal through his attorney. It may be a statement unaccompanied by any specific request.

While one might suspect that Andy’s call to Paul inquiring about his health was a

subtle effort to induce Paul to consider dealing directly with ABC without Smith’s involvement, this

conduct falls short of that required to establish a prima facie case of tortious interference with the

Contract.

QUESTION 6

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A. The Citation

The Court should sustain the objection by David’s attorney. Evidence of issuance

of a traffic citation has the effect of inferentially establishing the police officer’s opinion of guilt and

its prejudicial effect outweighs its probative value in a civil action arising out of an accident that

resulted in the citation being issued.

B. The Fine

1. The submission of payments in satisfaction of a traffic fine is not the evidentiary

equivalent of a guilty plea in open court. Admission of evidence that David paid a fine

naturally includes evidence that he was issued a traffic citation.

2. Payment of a traffic fine is neither a guilty plea nor an express acknowledgment of guilt;

it is at most a consent to conviction, closely analogous to a plea of nolo contendere.

It is common experience that people plead guilty to traffic charges for reason of

expediency even though they may believe themselves innocent. The cost of defense compared to

the inconvenience as well as indirect economic losses of court appearances are practical motivations

for paying traffic fines.

The court should deny David’s motion for judgment. Evidence that Paula violated

a rule of the road by walking on the wrong side of the highway, even if it is a proximate cause of

injury, does not constitute negligence per se but is merely prima facie evidence of negligence and

is rebuttable.

Where reasonable minds can differ on both the question of whether, under all the

circumstances the injured party was exercising ordinary care in walking along the wrong side of the

highway with her back to oncoming traffic and without looking behind her, and whether her

negligence, if any, was a proximate cause of her injury, the question should be submitted to the jury.

QUESTION 7

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In reviewing the facts of the complaint, I would recommend proceeding against John and

Seymour, as follows:

1. Seymour, in his capacity as the supervising lawyer, has responsibility for John's violation

of the Maryland Lawyer's Rules of Professional Conduct ("Rules") if it can be proved that

he knew of the violation and ratified the conduct. Rules 5.2 and 5.5. Seymour knew that

John was directed to handle the preparation of Sam and Lisa's property settlement

agreement. It was Seymour's failure to supervise John that caused John and Seymour to

violate Rule 1.7 regarding conflicts of interest and Rule 5.5 regarding the unauthorized

practice of law. Because John is not currently a member of the Maryland bar, he can

temporarily practice law in Maryland only if Seymour actively participates in the matter.

2. In jointly representing Sam and Lisa, Seymour and John have a direct conflict of interest

under Rule 1.7(a). Maryland law provides that this conflict of interest is not waiveable

by informed consent. John and Seymour should not have undertaken to represent both

husband and wife in a domestic relations matter, and they should have withdrawn from

the representation when requested to do so by David, Lisa's lawyer. See, Hale v. Hale,

74 Md. App. 555, 539 A.2d 247 (1988).

3. The advance payment of fees in the amount of $5,000 should have been deposited into

an escrow account in accordance with Rule 1.15 and the Rules on the Attorney Trust

Accounts contained in Title 16, Chapter 600 of the Maryland Rules of Procedure. The

fee should not be withdrawn or otherwise used or pledged by John, Seymour and the firm

until it is earned. Rules 1.5, 1.15, and Attorney Grievance Commission v. Lawson, 401

Md. 536, 933 A.2d 842 (2007). Upon termination of representation, the unearned fees

must be returned to the client. Rule 1.16(d)

4. John and Seymour should be disciplined for violation of Rule 1.5(d)(1) because a

contingency fee was charged on the value of assets that John obtained for Sam in the

negotiation of the property settlement agreement.

5. Depending upon John’s experience, skills and the difficulty of the negotiations and other

related services, the hourly rate of $500 may be excessive and unreasonable.

Rule 1.5 (a)

6. John and Seymour had a duty to take reasonable measures to avoid the disclosure of

confidential information received from Sam and imbedded in the electronic form of the

initial draft. David is not prohibited by the Rules from using the information revealed to

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him in the initial draft of the property settlement agreement. See Rules 1.6 and 4.4, as

well as Ethics Docket No. 2007- 09, Committee on Ethics, Maryland State Bar

Association, regarding the use of metadata.

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QUESTION 8

Daughter, Mother and Dad have at least arguably overcompensated themselves for

their services to the Corporation and failed to continue to make dividends as the

Corporation agreed when Son resigned from the Board. Son seeks redress for both of

these perceived injuries. The facts indicate that Son, either on his own behalf or on

behalf of the Corporation, may have a remedy to address each issue.

In Maryland, "[t]he business and affairs of a corporation shall be managed

under the direction of a board of directors." Maryland Annotated Code, Corporations

and Associations Article ("Corporations Article") ' 2-401(a). Maryland has codified

the standard of care for directors:

A director shall perform his duties as a director . . .

(1) In good faith;

(2) In a manner he reasonably believes to be in the best interests of

the corporation; and

(3) With the care that an ordinarily prudent person in a like

position would use under similar circumstances.

* * * * (e) An act of a director of a corporation is presumed to satisfy the

standards of subsection (a) of this section.

Corporations Article Section 2-405.1.

In addition, Maryland common law:

recognizes that minority shareholders are entitled to protection against fraudulent

or illegal action of the majority. Especially in closely held corporations, the

majority shareholder owes a fiduciary duty to the minority shareholder (or

shareholders) 'not to exercise [their] control to the disadvantage of minority

stockholders.' Lerner v. Lerner Corp., 132 Md. App. 32, 53, 750 A.2d 709 (2000).

A majority shareholder owes a fiduciary duty to minority shareholders not to use

his voting power for his own benefit or for a purpose adverse to the interests of

the corporation and its stockholders. Cooperative Milk Serv. v. Hepner, 198 Md.

104, 114, 81 A.2d 219 (1951).

Mona v. Mona Elec. Group, Inc., 176 Md. App. 672, 697 (2007).

A. Son's Possible Remedies

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(1) Son's Direct Action For Dividends

Son has a direct claim against the Corporation and its directors for its failure to declare a

dividend for three consecutive years.

A shareholder may bring a direct action against the corporation, its officers,

directors, and other shareholders to enforce a right that is personal to him. To

maintain a direct action, the shareholder must allege that he has suffered "an

injury that is separate and distinct from any injury suffered either directly by the

corporation or derivatively by the stockholder because of the injury to the

corporation." Hanks, supra, at 271 (footnote omitted). Any damages recovered

by the shareholder in the direct action go to the shareholder himself.

Mona v. Mona Elec. Group, Inc., 176 Md. App., supra.

When the Son resigned from the Board in 2005, the Corporation and the remaining

directors agreed to continue its current dividend practices. The failure to declare dividends does

not injure the Corporation; the harm, if any, is suffered by the individual shareholders. Thus,

Son has a claim for his pro rata share of dividends. However, since the agreement of the

Corporation was to continue dividends "as permitted by business conditions", the defendants

may have the substantial benefits conferred by Maryland's business judgment rule.

(2) Son's Rights To File A Derivative Action.

The facts support the contention that the compensation paid to the officers was excessive

and that Dad was paid for consulting services that he did not perform. To the extent that

excessive compensation was paid, the officers (as recipients) and the directors (as authorizing

payments) would be liable to the Corporation. In order to assert this right on behalf of the

Corporation, Son must file a derivative action.

A derivative action is "an extraordinary equitable device to enable shareholders to

enforce a corporate right that the corporation failed to assert on its own behalf.

Any recovery in a shareholder's derivative suit is in favor of the corporation, not

the individual shareholder (or shareholders) who brought the derivative action.

Before bringing a derivative suit in Maryland . . ., the shareholder must either

make a demand on the board of directors that the corporation bring the suit, or

show that demand is excused as futile.

Mona v. Mona Elec. Group, Inc., , supra at 698 (citations omitted).

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(3) Dissolution.

In addition to his other remedies, as a shareholder, Son can petition the Circuit Court to

dissolve the Corporation if he can prove that "those in control of the corporation" have acted in

an illegal, fraudulent or oppressive manner." Corporations Article 3-413(b)(2). If Son can

demonstrate that the actions of the directors and officers was intended to benefit themselves in

furtherance of their personal interests instead of the corporation, an action for dissolution is

appropriate. Birnbaum v. SL&B Optical Centers, Inc., 905 F. Supp. 267 (D. Md., 1995).

B. - Defenses

The primary defense available to the directors is the business judgment rule.

As indicated above, there is a statutory presumption that corporate directors perform their

duties in good faith, in a manner reasonably believed to be in the best interests of the

corporation; and with the care that an ordinarily prudent person would use under similar

circumstances. Corporations Article 2-405.1. Maryland's version of the business judgment rule

is focused upon "the manner . . .by which a director makes decisions rather than the results of the

decision." D. Hanks, supra at 167. In order to be successful, Son must present evidence to

overcome the presumption that the directors acted reasonably and in the best interests of the

corporation. Bender v. Schwartz, 172 Md. App. 648, 667, 917 A.2d 142 (2007).

The facts indicate that Mother, Daughter and Dad voted to increase substantially the

compensation to the officers and to pay Dad $500,000 per year for non-existent consulting

services. At the same time, they declined to declare a dividend because of "adverse business

conditions." There is no evidence that the compensation arrangements were reviewed by any

independent party. Thus, Son has colorable arguments that his sister and his parents breached

their duty of care with regard to the setting of compensation. The same analysis obtains for a

claim for dividends.

The compensation arrangements for Sister, Mother and Dad were considered and

approved as a package for all three directors at the same time and thus constituted an "interested

director transaction as each director directly benefitted from the board's action. Corporations

Article Section 4-119 sets out "safe harbor" procedures for boards to follow in considering

interested director transactions. The directors did not avail themselves of any of these

procedures. Its failure to do so was neither a grounds for liability, D. Hanks, supra, 220.29, nor

a basis to set aside the presumption that the Board's action was in the best interest of the

corporation, Section 4-119(d); Sullivan v. Easco Corp., 656 F. Supp. 531, 535 (D. Md.,1987).

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However, approval by non-interested directors would have been very helpful to the

Sister, Mother and Dad. Cf. Mona v. Mona Elec. Group, Inc., , supra at 704 (approval of

compensation by directors who were "friends, relatives, employees and professionals with whom

[the dominant shareholder] had a relationship" is sufficient to establish good faith.)

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QUESTION 9

a. May Al appeal the court order and/or reduce the amount required in the

Child Support Guidelines by the amount he pays monthly to his pension plan and his

business expenses, which were not brought to the attention of the lower court?

Since the protective order may be considered in any divorce proceeding filed,

Katsenelenbogen v. Katsenelenbogen

, 135 Md. App. 317 (2000), it is essential that Al appeal the

protective order erroneously granted under the facts. The District Court’s protective order may

be appealed to the Circuit Court of Maryland pursuant to Section 4-507 of Maryland Family Law

Code Annotated on the following grounds:

A. There was insufficient grounds to award the 6 months protective order against Al. There

was no evidence that he was violent and, in fact, Peg admitted he had never been violent. Mere

firing of the nanny and leaving “because this could get ugly” is insufficient. Therefore, it is

important to appeal the protective order and have it rescinded.

B. Although the District Court could award temporary custody of the minor children to Peg

pursuant to Section 4-506 (d) of the Maryland Family Law Code Annotated, it did not have

jurisdiction to grant permanent custody of the children in the protective order, and the order

should also be rescinded on this ground. See, Coburn v. Coburn

, 342 Md. 244 (1996)

C. While Section 12-201 (b) (2) (the Child Support Guidelines) of Maryland Family Law

Code Annotated allows the deduction of the ordinary and necessary expenses required to

produce income from the income calculations, voluntary contributions to a pension plan are not

considered a necessary business expense. Cohen v.Cohen, 162 Md .App. 599 (2005). Although

the court can only revisit these matters upon a “material change in circumstances”, the business

expenses can be factored into the calculations on appeal, as the case will be heard de novo in

Circuit Court. (Maryland Family Law Code Annotated, (Sec. 4-507(b))

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b. Is there any way to challenge the divorce proceedings filed by Peg ?

Section 7-103 (a) of Maryland Family Law Code Annotated lists the grounds for absolute

divorce:

(a) Grounds for absolute divorce. -- The court may decree an absolute

divorce on the following grounds:

(1) adultery;

(2) desertion, if:

(i) the desertion has continued for 12 months without interruption before

the filing of the application for divorce;

(ii) the desertion is deliberate and final; and

(iii) there is no reasonable expectation of reconciliation;

(3) voluntary separation, if:

(i) the parties voluntarily have lived separate and apart

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

application for divorce; and

4 (ii) there is no reasonable expectation of reconciliation;

(4) conviction of a felony or misdemeanor in any state or in any

court of the United States if before the filing of the application for divorce the

defendant has

(i) been sentenced to serve at least 3 years or an

indeterminate sentence in a penal institution; and

(ii) served 12 months of the sentence;

(5) 2-year separation, when the parties have lived separate and

apart without cohabitation for 2 years without interruption before the filing of

the application for divorce;

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BOARD’S ANALYSIS

Page 19 of 20

(6) insanity if:

(i) the insane spouse has been confined in a mental

institution, hospital, or other similar institution for at least 3 years before the

filing of the application for divorce;

(ii) the court determines from the testimony of at least 2

physicians who are competent in psychiatry that the insanity is incurable and

there is no hope of recovery; and

(iii) 1 of the parties has been a resident of this State for at least 2 years before

the filing of the application for divorce;

(7) cruelty of treatment toward the complaining party or a minor

child of the complaining party, if there is no reasonable expectation of

reconciliation; or

(8) excessively vicious conduct toward the complaining party or

a minor child of the complaining party, if there is no reasonable expectation of

reconciliation.

Based on the facts, the only grounds Peg could remotely allege are those listed in

subparagraphs 7 and 8 – cruelty or excessively vicious conduct.

There are insufficient facts to support either of these provisions. Mere firing of the nanny does

not constitute cruelty of treatment or excessively vicious conduct. At most, Peg can allege that

Al treated her in a horrible manner. However, any action by Al that renders the marriage

“intolerable” is not sufficient justification for a divorce on the grounds of cruelty. Ricketts v.

Ricketts, 393 Md. 479 (2006) Accordingly, Peg may not be able to show cruelty or excessive

vicious conduct and will have to wait until the requisite time periods for voluntary (12 months)

or involuntary (24 months) separation to occur before the two can be divorced.

JULY 2008 MARYLAND BAR EXAMINATION

BOARD’S ANALYSIS

Page 20 of 20

QUESTION 10

a. Equitable title passed, under the doctrine of equitable conversion, to Husband and

Wife at contract signing. Therefore, the judgment lien does not affect title. (See Coe

v. Hays 328 Md. 350, 614 A. 2d 576 (1992))

b. Deed of trust constitutes a lien which encumbers the title and it must be paid prior

to or from proceeds of sale if sufficient to satisfy the lien; otherwise A, B and C must

provide additional funds to satisfy the lien.

c. The lawsuit is for the payment of personalty to be used on Blackacre, and it does

not affect title to Blackacre as it is not a lis pendens action. Also, it was not reduced

to judgment prior to the execution of the contract.

d. The Survey:

1. The unpaved driveway may constitute an easement that may affect title and

would affect the use of Blackacre by Husband and Wife. Additional factual

inquiry would be required to determine the nature and extent of the easement and

whether it is acceptable to Husband and Wife. The easement is not an express

easement because it was neither recorded nor revealed in the title search.

2. The shed area does not affect the title to Blackacre. However, A, B and C (as

well as Husband and Wife as facilitated by tacking) may have the right to file suit

for adverse possession for the shed area provided the owners of Whiteacre did

not give their consent for the shed to be constructed or installed across the

property line and the other requirements are fulfilled.

3. Husband and Wife are on notice that there is a tenant in possession of a portion

of Blackacre so Husband and Wife may be required to take title subject to the

rights of the tenant in possession, which would include the harvest of the corn.

Real Prop. Art. §§ 2-115 (Implied Warranty of Quiet Enjoyment) and 3-101(b)

(Purchaser takes with notice of valid lease). Leases for a term of less than seven

years do not require recording under Real Prop. Art. § 3-101.