Benkin v. Benkin

BISHOP, Judge. Priscilla Gorfinkle Benkin appeals from those parts of the Decree of the Circuit Court for Montgomery County, which, inter alia, granted her a monetary award in certain of appellee’s pensions; granted her alimony for five years on a declining scale, to terminate on March 1, 1991; directed that, until the sale of the marital home, appellee pay all mortgage and other expenses except for utilities and minor repairs, which were to be paid by her; and designated certain property as marital property. FACTS The court ruled that both parties were equally responsible for the dissolution of the marriage and granted appellant the absolute divorce. The court also made the following ¹⁹⁴ findings as to the pertinent marital property at issue and its value: Marital Property Family residence— $154,000.00 3506 Woodbine Street (net divisible equity) Civil Service Pension— 190,000.00 Present value Military Pension— 56,000.00 Present value (appellant to share in pensions in accordance with Agreement of March 7, 1986) Household furnishings and other property located in the 18,000.00 marital home Having determined that the family residence was marital property, the trial court found that the parties had agreed to divide that asset equally.

With regard to the pensions, the parties agreed, after the trial and before the court filed its opinion and order, that the pensions were marital property and that any monetary award would come from the pensions. Consistent with this agreement, the court based the monetary award granted to Mrs. Benkin on her share of the pensions. During oral argument before this Court, the parties agreed that the monetary award was not an issue on appeal. Almost all of the household furnishings and personal property found in the marital home were deemed to be marital property.

Additional facts will be supplied in our discussion of Mrs. Benkin’s four issues. Appellant contends that the trial court erred when it: I. Awarded alimony for a limited duration; II. Awarded insufficient alimony; III. Designated certain jewelry as marital property instead of as her sole property; and IV.

Designated a Tiffany bowl as marital property instead of as the property of their eldest child, Joshua. ¹⁹⁵ I. Duration of Alimony Mrs. Benkin calls the five year alimony limitation “a gross inequity” and argues that indefinite alimony should have been awarded. After reviewing carefully the record below, we conclude that there is much merit to the wife’s position and thus remand the case to the trial court for further consideration on this issue. Maryland’s 1980 Alimony Act constitutes “a comprehensive revision of Maryland’s domestic relations law.” McAlear v. McAlear, 298 Md. 320, 344 , 469 A.2d 1256 (1984) . Pursuant to the revised statute, the principal function of alimony shifted from maintenance of a spouse’s standard of living to rehabilitation: [the] concept of alimony as a lifetime pension enabling the financially dependent spouse to maintain an accustomed standard of living has largely been superseded by the concept that the economically dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living.

Harman v. Harman, 61 Md.App. 554, 560 , 487 A.2d 689 (1985) (quoting Holston v. Holston, 58 Md.App. 308, 321 , 473 A.2d 459 (1984)). In determining the duration of an alimony award, the statute authorizes the trial court to award indefinite alimony if it finds as a fact that: (1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate. MD.FAM.LAW CODE ANN. § ll-106(c) (1984). In reviewing a court’s refusal to grant indefinite alimony, this Court applies the abuse of discretion standard.

Brodak v. Brodak, 294 Md. 10, 28-29 , 447 A.2d 847 (1982); Nisos v. Nisos, ¹⁹⁶ 60 Md.App. 368, 388 , 483 A.2d 97 (1984); Holston v. Holston, 58 Md.App. 308, 324 , 473 A.2d 459 (1984). Section ll-106(c)(l) Although the statute is disjunctive, Mrs. Benkin relies on both prongs of section ll-106(c) to support her claim for indefinite alimony. As to the first prong, section 11-106(c)(1), Mrs. Benkin points to her longstanding arthritic condition as grounds for an award of indefinite alimony. She has been under the care of a rheumatologist since 1982.

Further, she testified that one of the joints in her left hand has been fused because it had degenerated as a result of the arthritis. Despite treatment, the arthritis continues to cause pain and swelling in her wrist joints and at the base of her thumbs. Pain from arthritis in her left foot makes walking difficult. Her arthritic condition forces her to take medication daily and to receive an injection of gold every fourth week.

She takes feldine, a non-steroid anti-flammatory drug used for the treatment of arthritis. To counteract the increase in her blood pressure caused by feldine, she must also take other medication. Mrs. Benkin adduced testimony from her friend, Sara Meizlik, that she has seen Mrs. Benkin’s hand so swollen that the knuckles were not visible. At its worst, Mrs. Benkin’s arthritis causes her to be bedridden and requires her to take medicine to alleviate the pain.

At the least, it causes her pain and robs her of strength in performing normally simple tasks: dressing or turning off a faucet have become chores; picking up a telephone book is painful; and because she cannot sustain her grip, she has a propensity to drop things. Even if her physical disability does not prevent her from becoming “self-sufficient,” Mrs. Benkin contends that her expected earning capacity will be so low that “the respective standards of living of the parties will be unconscionably disparate” pursuant to section ll-106(c)(2). Specifically, Mrs. Benkin asseverates that “there certainly is not any reason to believe that during the course of the next five ¹⁹⁷ years [her] earning capacity will improve to any appreciable extent.” To support this contention, she points out that she has not been employed on a full-time basis since 1960 and has enjoyed no substantial part-time employment between 1960 and January, 1985. She also suggests that she is not employable.

She applied for jobs in July or August of 1984 with the American Humane Association, the National Governors Association, the Friends of Wildlife and Defenders of the Earth but received no job offers. Further, she answered employment advertisements in the Washington Post newspaper and applied for a job with the Department of Agriculture, both with negative results. Appellee husband responds by arguing that the parties adduced sufficient evidence into the record indicating that Mrs. Benkin possesses the physical health and intellectual skills necessary to support herself with a standard of living that is not unreasonably disparate. In particular, he points out that appellant produced no medical, vocational or personnel expert testimony to support her argument that she is not capable of full-time employment.

The husband also attempts to refute the wife’s allegation of disability by referring us to “a videotape of appellant, running, lifting and performing other vigorous physical tasks while showing her dog.” This coupled with the travel and physical activity required for appellant to attend numerous dog shows, according to appellee, belies any incapacitating disability. The videotape contains a recording of what appears to be a complete dog show. Although we could not identify appellant, the running and lifting we viewed could not be categorized as “vigorous” but rather as somewhat more strenuous than average normal exercise, such as walking. The tape displayed people capable of running slowly, trotting, perhaps several paces, lifting dogs that appeared to be about the size of terriers.

We did not see what appellee refers to as “other vigorous physical tasks.” In reviewing the court’s factual conclusions regarding the first prong, there was ample evidence to support the conclusion that the wife suffered from a serious arthritic ¹⁹⁸ condition. The effects of her arthritic condition, however, remained in dispute. In addition to the videotape, the husband presented a significant amount of evidence that conflicted with the wife’s position that her arthritic condition prevented her from being “self-supporting” pursuant to section ll-106(c)(l). The trial judge did not make an explicit factual finding on the issue of appellant’s earning ability; however, in the five year limitation which he imposed on the payment of alimony there is an implicit finding that he resolved the conflict in the testimony in favor of the husband and found that, even though disabled to some extent, Mrs. Benkin’s disability was not of sufficient magnitude to support the conclusion that solely due to her “infirmity or disability ...

(she) cannot be expected to make substantial progress toward becoming self-supporting.” MD.FAM.LAW CODE ANN. § ll-106(c)(l) (1984). See also Mount v. Mount, 59 Md.App. 538, 552 , 476 A.2d 1175 (1984) (holding that it is sufficient if reviewing court can determine from a reading of the entire record and chancellor’s opinion that he did consider those factors before making the alimony award); Grant v. Zich, 53 Md.App. 610, 618 , 456 A.2d 75 (1983) (holding that in awarding alimony, the chancellor is not required to invoke expressly the wording of the statute to demonstrate that he considered the relevant factors), aff'd, 300 Md. 256 , 477 A.2d 1163 (1984). Accordingly we hold that the trial judge did not err in denying alimony for an indefinite period under section ll-106(c)(1). We take a different view of this issue under (c)(2).

Section ll-106(c)(2) We read subsection (c)(1) of section 11-106 to mean that indefinite alimony may be awarded where, due solely to age, illness or infirmity, the party cannot reasonably expect “to make substantial progress toward being self-supporting.” Subsection (2) presupposes that even after considering that the party seeking alimony has some earning ability and therefore will be able to make some progress toward ¹⁹⁹ closing the gap between the unconscionably disparate standards of living, it is reasonable to expect that the gap will continue to be unconscionably disparate. See Harman, 61 Md.App. at 559-60 , 487 A.2d 689 ; Holston, 58 Md.App. at 321-22 , 473 A.2d 459 . Mrs. Benkin contends that her present earning capacity is significantly lower than the salary that her husband earns. Specifically, she points out that since January, 1985, she has worked for Borden, Inc., a firm that sells products used by those who handle show dogs; working part-time, this job yielded to her almost $11,000.00 in income in 1985.

Because Dr. Barth, her rheumatologist, suggested she “pace herself,” she argues that her income will remain constant. By contrast, she points out that Mr. Benkin has an annual salary of $68,700.00. This coupled with income from the Air Force, puts his annual income in excess of $70,000.00. Mrs. Benkin observes that she earns sixteen percent of that amount and that this disparity will never substantially diminish.

Finally, she notes that even the trial judge in his opinion and order determined that her financial situation was “almost totally opposite” Mr. Benkin’s. In Holston v. Holston, 58 Md.App. 308 , 473 A.2d 459 (1984), we found that the trial court abused its discretion in not awarding indefinite alimony to the then thirty-nine year old Mrs.* Holston. 58 Md.App. at 323 , 473 A.2d 459 . We relied on the facts that Mrs. Holson had not worked since 1967, had attended college for only about a year and a half, and that her only work experience had been as a secretary at the University of Maryland Medical School, a post that yielded $5,000.00 in 1967 and, at the time of trial, $13,-000.00. By contrast, her husband was a dentist, a consultant and a professor at the Dental School.

His income was over $85,000.00. Id. at 322-23 , 473 A.2d 459 . Having determined the parties’ relative stations in life, we concluded that: Even if appellant, re-entering the job market after fifteen years, would be able to gain employment at a similar salary, her earnings would be less than 15 per ²⁰⁰ cent those of appellee. There is nothing in the evidence to indicate that appellant would ever be able to eliminate or even substantially diminish such disparity.

Assuming appellant used her three years of alimony to return to college, receive a degree and acquire a marketable skill, it is questionable whether after graduation she could earn a salary even approaching appellee’s earnings. Compounding the difficulty of obtaining an education and a marketable skill is the necessity to provide and care for five minor children. Reading the record, we see no reason to expect that if alimony terminates after three years the respective standards of living of the parties would not then be “unconscionably disparate.” Holston, 58 Md.App. at 323 , 473 A.2d 459 . At the other end of the indefinite alimony spectrum is the case of Harman v. Harman, 61 Md.App. 554 , 487 A.2d 689 (1985), where we affirmed the chancellor’s award of alimony for two years.

In distinguishing Holston and Harman , we noted that Mrs. Harman had a nursing degree with which she could earn $15,000.00 to $20,000.00 per year as a nurse, but instead she held a position, while married, as a clerk typist with the federal government, with a wage of $11,000.00 per year. 61 Md.App. at 560-61 , 487 A.2d 689 . Unlike Mrs. Holston, Mrs. Harman had no children. Mrs. Benkin is not the secretary in Holston . In fact she is better educated than the nurse in Harman who opted for a lower paying position.

Mrs. Benkin, fifty-one years of age at the time of trial and who will be fifty-six years of age when the alimony terminates, does have the problems associated with the current and future disabling effects of her arthritis. The husband argues that in spite of her academic credentials she breeds and shows dogs and promotes Borden Company products at dog shows, activities which are substantially below her employment potential. Also he points out that she lives not far from Washington, D.C., an area in which her lobbying skills could be readily utilized. Mrs. Benkin points out, and the court agreed, that given the status quo of the employment of herself and her hus ²⁰¹ band, there is and will continue to be a large disparity in incomes.

The question then is whether within the five years of the alimony payments, given Mrs. Benkin’s age, her physical condition, her educational background and her past success in lobbying, can she not only become self-supporting but can she also make strides in closing the income gap between herself and Mr. Benkin to the extent that their respective standards of living will not be unconscionably disparate. While we have disposed of the issue of Mrs. Benkin’s qualifying for an indefinite alimony award based solely on “age, illness, infirmity or disability” under subsection (c)(1), we must now address the impact of her age, qualifications and whatever disability she might possess on her potential under (c)(2) to become self-supporting and to alleviate the unconscionable disparity in income. To what extent did the trial court consider this and other factors in arriving at the five year limitation? In his opinion and order, the trial judge wrote: When considering whether to award alimony, the Court must take into account all of the relevant factors including those set forth in Maryland Family Law Code Section 11-106 (1984).

The financial statements of the parties reflect a substantial disparity between the property holdings of the Plaintiff and those of the Defendant. This disparity will be significantly offset with the agreed to distributions of the residence and the pensions and the fees to be awarded. Further, Defendant mil probably continue receiving his salary for some time to come. The situation with the Plaintiff is almost totally opposite.

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