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Same-sex couples find there’s no certain path to divorce in Maryland

When Jessica Port got married, she did not worry about what would happen if she were ever to divorce. She was young and in love.

Port and Virginia Anne Cowan had been together for four years before deciding to marry, which they did on a trip to San Francisco in 2008. But, like half of all marriages in the United States, their relationship soured and they sought a divorce.

“We got married in October and it was over [by] that summer,” said Port, 29. “It’s a lot of what happens especially when people are young. We realized we wanted different things.”

Same-sex marriages cannot be performed in Maryland, but Attorney General Douglas F. Gansler predicted, in a 50-page opinion in February 2010 that the Court of Appeals would recognize same-sex marriages legally performed in other states if it were ever to take up the question. Gansler’s opinion put state agencies on notice that they should extend the rights of heterosexual married couples to same-sex couples who married legally out of state.

Gansler’s opinion lacks the force of the law, but Port said she hoped it meant she could divorce here.

She filed a pro se action in Prince George’s County and took a free legal clinic at the circuit court. She spoke with someone there who assured her that it would “absolutely not” be a problem for the couple to get a divorce there.

But Circuit Judge A. Michael Chapdelaine disagreed.

“Instead of giving us a ruling, he said ‘Because of the unnatural circumstances of this marriage you’re going to have the ruling mailed to you,’” Port said. “I walked out of that courtroom and I was thinking, ‘He said unnatural; this isn’t going to be good.’”

A week later, they got the news: the court would not grant the divorce, finding it “contrary to the public policy of Maryland.”

It’s a ruling Port cannot accept.

“Anytime there’s discrimination in my community it is challenging to me,” she said. “Relationships and breakups are hard no matter who you are and being able to close that door is important. It’s also legally right to protect my assets and my person, I guess.”

Chapdelaine declined to discuss the case because it is still pending in the court system.

Port sought legal advice from Lambda Legal, an advocacy group, which referred her to Silver Spring lawyer Michele Zavos.

Zavos, of the Zavos Juncker Law Group PLLC, often works with gay and lesbian couples on family law and estate planning and thought Port had strong grounds for an appeal.

Couples who are legally married cannot move on with their lives without a divorce, she said. “So then what you’re telling these people is, ‘You are going to have a legal relationship with this person that can never be undone,’” Zavos said. “Which means you can never decide to go get married to someone else. Your property — if you don’t do a separation agreement and sometimes even if you do — is at risk for the entire time you’re married.”

Mark Scurti, a partner with Towson firm Hodes, Pessin & Katz P.A., represents Cowan, who is not opposing the divorce.

But unlike Port, who is ready and willing to take the case up the appellate ladder, Cowan seems less thrilled with the publicity and attention that will come with it.

She did not respond to requests for comment on the case. According to Port, Cowan told her in a text message “she wasn’t interested in doing interviews and wasn’t looking to be an activist.”

But that’s how many will see Port and Cowan.

Most states let couples stop through quickly to get married; but legally ending a marriage requires a six-month move to a state that allows same-sex marriage.

Home-court access

Cowan and Port have another option available to them because Cowan lives in Washington, D.C., a jurisdiction that does recognize same-sex marriage.

Rather than take her case to D.C., Port said she just wants what other Marylanders have: the right to use the judicial system.

“I’m a Maryland resident,” Port said. “Not that long ago I bought a house in Maryland. My parents live here. My brother lives here. I pay taxes here. I deserve this right just like anybody else.”

Zavos and Scurti, who both took the case pro bono, agree and said they do not see this as an exercise or a political statement. They said that because Port filed for divorce, she should see her case through here.

“The issue is, a Maryland resident should have access to the courts here in Maryland and use that forum if she so chooses,” Scurti said.

He later added, “It’s not a matter of should a person file somewhere else if that’s available. No; … you should be able to file in your own state and not have to look to another jurisdiction or look to the other party to carry that torch.”

Zavos and Scurti, who have a friendly working relationship despite being opposing counsel, are filing briefs to the Maryland Court of Special Appeals.

Both said they would welcome the chance to argue the case before the Court of Appeals, which could choose to pluck the case from the intermediate court.

“The interesting thing here is, we both want the same result,” Zavos said. “We’re not fighting with whether or not a divorce should happen. This is a unique situation where there is no one on the other side saying this shouldn’t happen.”

Out of the headlines

Among family law attorneys who describe themselves as gay-friendly, word has it that other same-sex couples have been able to divorce in Maryland.

Both Zavos and Scurti mentioned a case in Anne Arundel County Circuit Court that Judge Ronald A. Silkworth approved late last year, between Vicki A. Migues and Lynn C. Johnson.

Jane Tolar, a solo attorney in Easton, said she got permission from her client, Johnson, to confirm that Johnson and Migues were married in Massachusetts and that Silkworth granted their request for an absolute divorce.

Silkworth said he could not comment on the case, and Edward Derenberger, a Glen Burnie solo attorney who represented Migues, did not respond to inquiries for this story.

Zavos and Scurti said there may be more same-sex divorces that never make headlines because the couple is not interested in media attention.

“A lot of people don’t want to be in the press,” Zavos said. “They just want to get divorced and move on.”

Others choose not to come forward because they don’t want to ruin it for others who have quietly been granted divorces.

“One strategy is if enough [divorces] are granted around the state it’s kind of hard to un-ring that bell,” Scurti said. “Because if a court were to say we’re not going to recognize out of state same-sex marriages, then they have created a potential nightmare for couples that have already previously been granted divorces.”

Sometimes, too, the judges may be gun-shy.

“I think that sometimes judges don’t want to be on the spot, that they might be willing to do it but they don’t necessarily want to be the groundbreaker,” Zavos said.

Zavos said she recalled a case in Montgomery County years ago where a court master approved the divorce — but the judge did not.

Granted, but rescinded

A similar situation happened to one of Scurti’s clients in Baltimore this year. There, the judge actually granted the divorce but rescinded his order a month later.

Marc B. Noren, a Baltimore family law attorney who represented the other spouse in that action, waited to discuss it until he thought the coast was clear in May.

His client, Nicole Brown, and Scurti’s client, Yvonne Keller, had married in San Francisco and later decided to divorce. Their case appeared before Master Theresa Furnari in Baltimore City Circuit Court in January.

Furnari provided an uncontested master’s report of absolute divorce to Judge John Addison Howard, who on April 27 entered a judgment of absolute divorce.

One month later, though, Howard contacted both attorneys to let them know he would strike down the original decision.

In Howard’s memorandum, he noted that despite the divorcing parties’ feminine names, he had not realized they are of the same gender. He ruled that the court did not have subject matter jurisdiction.

“Notwithstanding the fact that we lawyers know that in certain kinds of uncontested orders a judge may not read through every piece of paper in a file, Master Furnari heard that case,” said Noren, a member of Adelberg, Rudow, Dorf & Hendler LLC in Baltimore. “She took testimony.”

Scurti described the judge’s reversal as a “punch in the gut” and completely unexpected.

The women have not decided whether they will appeal the case and declined to comment. They have until June 27 to appeal.

Howard said he would not discuss the case because it is still pending. He said judges make their decisions in public in the courtroom, so he felt no need to discuss it further.

But Howard’s decision to rescind the decision was made behind closed doors, and because he will not discuss it, it is hard to know what prompted it.

Noren’s guess is that court chatter reached him.

“I am sure that there was some discussion among some people who knew about the case,” he said. “And there’s a grapevine everywhere and it may have wound its way back to him.”

Noren said he had never seen a judge rescind an opinion without prompting from either party.

“A surprise would be putting it lightly,” he said. “It was a month after. I was shocked.”

Both Scurti and Noren said they would have expected that if a judge signed an opinion and later felt troubled by that decision (or, perhaps, did not know what he or she had signed) the attorneys would get the chance to file briefs or appear before the judge.

“I’m not saying it would have mattered in this case,” Noren said. “The judge obviously had strong opinions.”

In his memorandum reversing his original decision, Howard said the court could not exercise its jurisdiction over a marriage the state does not recognize as valid. While executive branch agencies have chosen to honor same-sex marriages performed elsewhere based on the attorney general’s opinion, it is not binding on the legislature or the judiciary.

“I respectfully disagree with what Judge Howard is saying,” Noren said. “He says subject matter jurisdiction but it really is a public policy thing. I think he has dressed it up as subject matter jurisdiction.”