Man seeks Md. high court review of $7M adultery award in postnup

A man who violated a postnuptial agreement‘s adultery ban has urged the Maryland Supreme Court to review and overturn the $7 million awarded to his ex-wife under the terms of their contract.

In papers filed with the justices Tuesday, Thomas Lloyd’s attorney said the multimillion-dollar provision was an unenforceable contractual “penalty” under Maryland law despite Lloyd having signed the contract.

Attorney Steven M. Klepper wrote that state court decisions have long prohibited enforcement of contracts that penalize the breaching party rather than simply provide that the victim will be justly compensated, or made whole.

The postnuptial agreement between Lloyd and his now ex-wife Anna Niceta was certainly a penalty as “it was designed to coerce compliance by making any breach prohibitively expensive,” added Klepper, of Kramon & Graham PA in Baltimore.

The agreement, which Lloyd violated, called for Niceta to receive a lump sum payment of $7 million if Lloyd engaged outside of marriage in sexual intercourse or romantic kissing, hugging, fondling, embracing, emailing or sexting. Lloyd’s signing of the controversial accord was a condition Niceta set for taking him back after an earlier extramarital affair.

“Mr. Lloyd asks for no sympathy,” Klepper wrote in the petition for Supreme Court review. “One can believe that he got what he deserves in a moral sense and still conclude, as a legal matter, that coercive penalties have no place in marital contracts.”

The Maryland Appellate Court upheld the agreement in October, ruling that the adultery-provision’s financial award was valid because compliance with its stay-faithful terms was totally within Lloyd’s control.

In addition, an adultery provision with a multimillion-dollar payout if violated might “create stability and peace in a marriage because the consequence of various actions in a marriage are explicitly spelled out,” the court said in its reported 3-0 decision rejecting Lloyd’s penalty argument.

“The general public policy prohibition against penalties that coerce behavior in contracts does not apply with the same rigidity in the context of postnuptial agreements,” retired Judge J. Frederick Sharer wrote for the Appellate Court. “That is so here, where public policy generally frowns on adultery, and postnuptial agreements by their very nature may be viewed as penalizing because they may alter the financial agreement between the parties.”

In Lloyd’s bid for Supreme Court review, Klepper wrote that “free will” is not a defense to a contract’s penalty provision unless and “until the General Assembly says otherwise.”

He added that enforcing penalty provisions would present a “particular danger” in marital contracts, which can often be one-sided.

“Marital power dynamics can be opaque, and courts often discount valid claims of coercion and other abuse,” Klepper wrote.

“There is no evidence that, as the (lower court) hypothesized, penalties will do more good than ill,” he added. “Even so, there can be no doubt that – in at least some cases – abusers will coerce spouses to agree to penalties, the penalties will themselves become instruments of fear and coercion, and courts will discount valid claims of coercion.”

Niceta’s attorney, Cheryl New, did not immediately return a telephone message Thursday seeking comment on Lloyd’s petition. New is with New & Lowinger PC in Bethesda.

Niceta will have an opportunity to file a response before the Supreme Court votes on Lloyd’s request for review. The justices have not said when they will vote on his request.

The appeal is docketed at the high court as Thomas L. Lloyd v. Anna Cristina Niceta.

Lloyd is a grandson of the late socialite and philanthropist Rachel “Bunny” Mellon, and Niceta served as White House social secretary during the Trump administration.

The former Chevy Chase couple’s courtroom odyssey began in Montgomery County Circuit Court, which awarded $7 million to Niceta and granted her a divorce from Lloyd on grounds of adultery in October 2021.

On appeal, the Appellate Court said the postnuptial agreement contained mutual sacrifices, or consideration, in that Niceta expressly agreed to forgo her right to seek a divorce and instead work on reconciling the marriage in return for Lloyd’s pledge to pay her $7 million if he strayed again.

“It is well-settled that the forbearance of bringing a legal action is a form of consideration,” Sharer wrote. “Therefore, Ms. Niceta’s decision not to file for divorce and to remain in the marriage following discovery of her husband’s adultery, and work on reconciling the marriage, is adequate consideration for the agreement.”

The court added that Lloyd was under no duress in signing the agreement, as he was represented by counsel during negotiations.

The Appellate Court also found that Lloyd’s pledge of $7 million, while “improvident,” was not unconscionable based on his expected $12 million inheritance from his ailing father.

Sharer was joined in the opinion by Judges Kathryn Grill Graeff and Douglas R.M.  Nazarian.

The Appellate Court rendered its decision in Thomas L. Lloyd v. Anna Cristina Niceta, No. 934 September Term 2021.