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Ping Li v. Tzu Lee

Court of Appeals of Maryland

February 21, 2014

SHIH PING LI
v.
TZU LEE.

Page 145

Deanna L. Peters (Paul T. Stein, E. Andrew Cole and Kathryn E. Deckert, Stein, Sperling, Bennett, DeJong & Driscoll, PC, Rockville, MD, Albert D. Brault, Brault Graham, LLC, Rockville, MD), on brief, for petitioner.

Geraldine Welikson Hess, Rockville, MD, on brief, for respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and DALE R. CATHELL (Retired, Specially Assigned), JJ.

HARRELL, J.

[437 Md. 48] In what was described by the trial court judge who heard Husband's Motion to Set Aside Marital Settlement Agreements as " a case of buyer's remorse," Petitioner Shih Ping Li [437 Md. 49] (" Husband" ) asks us to hold that two marital settlement agreements, executed by him and Tzu Lee (" Wife" ) in 2005 and 2008, are voidable at his demand. Husband grounds his demand before us on the contention that an attorney, Yu Gu (" Gu" ), who assisted the couple earlier in obtaining permanent resident status for Wife in the United States and subsequently served largely as scrivener as to the settlement agreements negotiated between Husband and Wife, violated Rule 1.7, or, in the alternative, Rule 1.9, of the Maryland Lawyers' Rules of Professional Conduct (" MLRPC" ), by failing to obtain Husband's informed consent, confirmed in writing, to her representation of Wife in connection with the two marital settlement agreements. We hold that, on this record, even assuming (without deciding) that a violation of either MLRPC 1.7 or 1.9 occurred, sufficient grounds to render the agreements voidable are not present.

FACTS

On 12 June 2003, Husband and Wife married, after rekindling a romantic relationship from years past and divorcing their respective prior spouses. We describe below the facts pertinent to this appeal stemming from Husband's and Wife's relationship and eventual separation and divorce.

I. The 2003 Immigration Proceeding

In 2001, Husband entered into a Voluntary Separation and Property Settlement Agreement with his first wife, Ms. Mak. Husband retained counsel to assist him in the negotiation and execution of that agreement. Thereafter, he elected to proceed, without counsel, in filing a Complaint for Divorce from Ms. Mak and representing himself at the resulting uncontested divorce proceedings in 2002.

One year later, just prior to the marriage of Husband and Wife, the couple sought to obtain permanent resident status in the United States for Wife, a Canadian citizen. Wife identified Gu to assist in that process. On 13 June 2003, the day after their marriage, Husband and Wife signed a Notice of [437 Md. 50] Entry of Appearance as Attorney or Representative naming Gu to file what became the 2003 immigration case.

Page 146

On 3 July 2003, Gu filed with the federal government several forms on behalf of the couple,[1] including a Form I-485 Application to Register Permanent Resident or Adjust Status (" Form I-485 Application" ), on which Wife was listed as the Applicant, and Form I-130 Petition for Alien Relative (" Form I-130 Petition" ), on which Husband was listed as the Petitioner. Gu also filed a Form I-864 Affidavit of Support (" Form I864 Affidavit" ), in support of the Form I-130 Petition, which supplied details of Husband's ability to support financially Wife. Wife provided Gu with the necessary information and documentation to complete the Form I-864 Affidavit, which included copies of Husband's 2000-2002 tax returns, his three most recent payroll statements, and information regarding his bank accounts. The Petition was approved by the DHS on 12 April 2005.[2]

[437 Md. 51] In the meantime, in July 2004, the couple purchased a home together in Rockville, Maryland, and sold the separate homes in which they resided previously. The mortgage application contained detailed information regarding each party's income, assets, and liabilities. The couple had a single joint checking account that they used to pay expenses for the Rockville home and common living expenses, to which Husband contributed monthly $4,000 and Wife contributed monthly $2,000.

In 2005, the couple contracted to build a new house in Frederick, Maryland. They provided their financial information to the builder of the home and the mortgage lender, including their income, asset, and liability information, their credit report, and a mortgage loan application. By that time, Husband, who worked for the United States Department of Transportation at the time that the immigration Form I-864 Affidavit was completed in 2003, was working for the DHS.

II. The 2005 Marital Settlement Agreement

In September 2005, Wife discovered that Husband had an extra-marital affair. The couple discussed separation, deciding that the soon-to-be-completed Frederick home would be titled solely in Wife's name. They decided further that Husband would continue his monthly contributions of

Page 147

$4,000 to cover their mortgage and housing expenses. After agreeing on the terms, the couple sought to memorialize their agreement. Wife requested that Gu draft a Marital Settlement Agreement (the " 2005 Agreement" ) regarding the parties' agreed upon division of marital property in the event of a separation. [3] Gu drafted the Agreement, based on the terms [437 Md. 52] provided her by Wife, and sent it electronically to her. Wife, in turn, sent electronically the Agreement to Husband, who hand-wrote on a printed copy proposed revisions to ensure that the $4,000 monthly alimony payment for which Husband was responsible, according to the terms of the draft Agreement, would not increase if his salary increased, but would be reduced proportionate to his income in the event that he lost his job and obtained employment with lesser pay.

Gu drafted a final version of the Agreement, including Husband's revisions. The parties executed the Agreement on 18 October 2005. The Agreement addressed the parties' real property interests and alimony, but left other issues to be addressed at a later date. The initial draft and final version of the Agreement contained the following provision:

Independent Counsel
Wife hereby acknowledges that Yu Gu, Esquire has represented her in drafting and execution of this agreement. Husband acknowledges that he has been advised and afforded the opportunity to obtain independent counsel of his own selection in connection with this Agreement, so that he may have his own attorney answer any questions which he may have. Husband further acknowledges that Wife's attorney has neither represented Husband nor provided him with any legal advice in connection with the terms or operating effect of this Agreement. Finally, Husband acknowledges that his decision to execute this Agreement without his own attorney is made freely and voluntarily.

In executing the final Agreement, Husband initialed each page, including the page containing the independent counsel provision.

Gu was not present when the parties executed the Agreement. Gu did not communicate directly with Husband concerning the 2005 Agreement, nor did Husband contact, or [437 Md. 53] communicate otherwise with, Gu. As it turned out, the parties did not separate after executing the 2005 Agreement. They sold their Rockville home and applied the proceeds of the sale toward the purchase of the home in Frederick. Title to the Frederick residence was placed solely in ...


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