5/13/2014 10:58:00 AM,
Jeff D. Gorman
(CN) - A man who admittedly had phone sex with his wife while they were separated can still divorce her because provocative messages do not arise to "cohabitation," a Maryland appeals court ruled.
Nick Bergeris filed for divorce from his wife, Jeannie, in 2012 based on a 12-month separation. Opposing the request, Jeannie claimed that she and her husband had phone sex throughout their separation and had physical sexual relations as well.
Nick conceded only to having sexually explicit telecommunications with Jeannie, and the court refused to let Jeannie enter into evidence transcripts of their text messages that she claimed would prove the pair had physical contact.
Based on the admission of phone sex, however, the Montgomery County Circuit Court dismissed the divorce complaint, stating that the couple did not live "without cohabitation" for a year.
"My view is that phone sex comes within the broader definition of sexual relations that is broader than sexual intercourse," the trial judge wrote.
In an April 30 reversal, the Maryland Court of Special Appeals agreed with Nick that the phone sex did not constitute cohabitation.
"In our view, occasional instances of telephonic or electronic communications talking about sex, unaccompanied by intimate physical sexual contact, do not rise to the level of cohabitation," Judge Timothy Meredith wrote for a three-member panel.
The 12-page ruling cites arguments Nick's lawyer gave at trial.
"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," the lawyer said. "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."
Even a record showing that the couple talked for four hours would not prove much, the lawyer added, according to the transcript.
Maybe "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," the lawyer said. "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."
In reaching its decision, the court relied on Marcotte v. Marcotte
, a 2004 case in which the Louisiana Court of Appeals found that phone sex could not prove that a man committed adultery.
The North Carolina Court of Appeals made a similar finding in the 1996 case Coachman v. Gould
, according to the ruling.
In the Bergeris case, the couple married in 2006 but separated in 2010. Nick moved out because Jeannie obtained an order of protection against him.
When the order expired, the couple resumed their sexual relationship. Nick maintained, however, that he had not been intimate with his wife or spent a night under the same roof as her since March 2011.
Though Nick said Jeannie showed up unannounced at his home six times over the next year, he claimed that he never let her inside the home on any such visit.