Blaine v. Blaine

BELL, Judge, dissenting. The majority today holds that, upon a motion for extension of rehabilitative alimony, i. e., alimony ordered for a definite period of time, a trial court may order indefinite alimony, where, since the divorce, the income of the payor former spouse has doubled and that of the payee former spouse has not kept pace. This is an extraordinary and unwarranted proposition, given the statutory scheme promulgated by the Legislature. In order to achieve that result, the majority reaches another extraordinary, and equally unwarranted, conclusion: “the failure of the formerly dependent spouse to reach an expected income level, with or without a concomitant increase in the income of the other spouse, is properly a ‘circumstance’ arising subsequent to the initial alimony award that would provide the basis for an indefinite extension of alimony.” Majority op. at 55.

More important, as to the latter, as we have already indicated, the circumstance warranting consideration of the motion having been established, it is, in fact, the increase in the other spouse’s income against which the formerly dependent spouse’s circumstances are compared and on the basis of which it will be determined whether the respective standards of living of the parties are unconscionably disparate. I respectfully dissent. ⁷⁷ The statutory scheme chosen by the Legislature makes clear that it contemplated that, ordinarily, an alimony award would be rehabilitative—for a fixed time—and designed to be a bridge between divorce and self-sufficiency by “providing] an opportunity for the recipient [spouse] to become self-supporting.” Report of the Governor’s Commission on Domestic Relations Laws (1980) at 2. See Maryland Code (1984, 1991 Repl.Vol.) §§ 11-106 & 107 of the Family Law Article. It is only after the statute refers to, and prescribes that, “[t]he court shall determine the amount of and the period for an award of alimony,” § ll-106(a)(l), and sets out the required considerations going into the determination of a fair and equitable award, § ll-106(b), that the statute even mentions an award of indefinite alimony.

See § ll-106(c). And, even then, it makes clear that such an award may be made only if certain rather extraordinary circumstances are found by the court to exist. Id. It is in this context that section 11-107 provides for the extension of the period during which alimony is to be paid, § (a), and for the modification of the amount. § (b).

This is consistent with the report of the Governor’s Commission, Commission Report at 4, upon which the statute is based. See Tracey v. Tracey, 328 Md. 380, 391-92 , 614 A.2d 590, 596 (1992). It is also consistent with the decisions of this Court that have considered the issue. Tracey, supra, 328 Md. at 391 , 614 A.2d at 596 ; Turrisi v. Sanzaro, 308 Md. 515, 524-25 , 520 A.2d 1080, 1084-85 (1987); Kline v. Kline, 85 Md.App. 28, 51 , 581 A.2d 1300, 1311 , cert. denied, 322 Md. 240 , 587 A.2d 246 (1991), appeal after remand, 93 Md.App. 696 , 614 A.2d 984 (1992); Rosenberg v. Rosenberg, 64 Md.App. 487, 531-32 , 497 A.2d 485, 507-08 , cert. denied, 305 Md. 107 , 501 A.2d 845 (1985); Holston v. Holston, 58 Md.App. 308, 321 , 473 A.2d 459, 465-66 (1984), cert. denied, 300 Md. 484 , 479 A.2d 372 (1984). 1 ⁷⁸ Indeed, the statutes are clear and unambiguous, admitting of but one construction.

It is well settled that the inquiry into the Legislature’s intention in enacting a statute begins, and ordinarily ends, with the words of the statute, Harris v. State, 331 Md. 137, 145 , 626 A.2d 946, 950 (1993), considered, however, in light of the context, meaning “related statutes, pertinent legislative history and ‘other material that fairly bears on the ... fundamental issue of legislative purpose or goal....’” Popham v. State Farm Mutual Insurance Company, 333 Md. 136, 148 , 634 A.2d 28, 34 (1993) (quoting GEICO v. Insurance Commissioner, 332 Md. 124, 131-32 , 630 A.2d 713, 717 (1993)). Where the words of the statute are clear and unambiguous, it is ordinarily unnecessary to go further. State v. Thompson, 332 Md. 1, 7 , 629 A.2d 731, 734 (1993); Mustafa v. State, 323 Md. 65, 73 , 591 A.2d 481, 485 (1991). Of course, when construing a statute, we give its words their ordinary and common meaning.

Dickerson v. State, 324 Md. 163, 171 , 596 A.2d 648, 652 (1991); Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126, 127 (1989). The majority does not disagree with these principles. It recognizes, at least implicitly, that the language of the statutes at issue is clear and unambiguous; however, it refuses to give ⁷⁹ effect to the plain meaning and unambiguous language of § 11-106, preferring to “look elsewhere to divine legislative intent.” Majority op. at 64. Thus, while acknowledging that the implication of the statutory scheme is that indefinite alimony must be made at the time of divorce, the majority purports to decline to apply language in rote fashion.

Majority op. at 65. Indefinite alimony and rehabilitative alimony are usually mutually exclusive; the award of one, as for example, rehabilitative alimony, necessarily precludes the award of the other for the same period. 2 The requirement that the court determine the amount and duration of an alimony award, see § 11-106(a), pursuant to a bill of complaint for alimony or as part of a decree granting an annulment, a limited divorce or absolute divorce, see section ll-101(a), and consistent with the factors enumerated in section ll-106(b), forces the trial court to come to grips with which form of alimony most applies to the circumstances of the parties before the court. As we have seen, this is consistent with the overall statutory scheme. It is also consistent, more particularly, with the requirements of section 11—106(b) and (c).

Although the factors enumerated in section 11-106 pertain to the duration and the amount of the alimony award, some, i.e., “(1) the ability of the party seeking alimony to be wholly or partly self-supporting; (2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment; ... (7) the age of each party; (8) the physical and mental condition of each party; [and] (9) the ability of the party from whom alimony is ⁸⁰ sought to meet that party’s needs while meeting the needs of the party seeking alimony,” are more directly addressed to the durational aspect. Of these, factors (1), (2) and (9) are of particular significance, factors (7) and (8) being merely an aspect of the other three. They involve, and require, the assessment and prediction of the needs of the formerly dependent spouse and the ability of the payor former spouse to meet those needs.

This is to be done, as a threshold matter, since neither amount nor duration can be determined until, and unless, the goal to be achieved has already been defined. It is also for this reason that factor (3), “the standard of living that the parties established during their marriage,” is also important and instructive. Implicitly, requiring that determination to be made at the outset ensures that there is a standard against which the needs of the formerly dependent spouse and the ability of the payor former spouse to meet those needs can be measured. What the court seeks to do, for the benefit of both parties, is to approximate, as closely as possible, the standard of living that the parties enjoyed during the marriage.

It then has to decide whether that standard can be attained by the formerly dependent spouse after the divorce. It makes that determination by assessing the effect of providing the formerly dependent spouse with the opportunity, where possible, to acquire skills or improve his or her education. If the court concludes that self-sufficiency can be achieved—the dependent party could maintain, on the basis of his or her own resources, roughly that standard the court has determined, based on the circumstances of the marriage and existing at the time of divorce, to which he or she has become accustomed—it orders rehabilitative alimony for the period necessary to its attainment. Where, however, the court determines that it is not possible for the dependent spouse to achieve that level of self-sufficiency on his or her own, it orders indefinite alimony, calculated in an amount which the payor spouse can pay and which most closely achieves the goal.

Section ll-106(c) thus provides for the. award of alimony for an indefinite period when “the party seeking alimony will have ⁸¹ made as much progress toward becoming self-supporting as can reasonably be expected, [but] the respective standards of living of the parties will be [nevertheless] unconscionably disparate.” The decision to award indefinite alimony is not inconsistent with, or different in kind from, the threshold eligibility decision referenced in section 11—106(b); rather, the decision contemplated by section 11—106(c) is but an extension of that required by section 11—106(b), which requires simply a refinement of some of the subsection (b) considerations. Rather than some new consideration, it contemplates that the court will assess, first, the dependent former spouse’s ability to become wholly or partially self-sufficient and then whether, in light of the previously determined standard of living enjoyed by the parties during the marriage, that party can realistically achieve self-sufficiency without unconscionable disparity. Section ll-106(c), in short, requires the court to predict the future of the parties and to do so in light of its determination of the standard of living the parties enjoyed during the marriage. The prediction of the dependent former spouse’s future ability to achieve self-sufficiency takes the form of a prediction of his or her future standard of living which must be compared with that previously determined to have been enjoyed during the marriage.

Once the court decides which option—rehabilitative or indefinite alimony—to adopt, it follows that the option not chosen is rejected. The decision is final, which if not reversed on appeal, is binding on the parties and is not thereafter subject to reconsideration. As we have seen, the majority recognizes that § 11—106(c) is phrased prospectively, but, it nevertheless concludes that it “may be applied retrospectively ... [to] support a conclusion that an extension [of alimony pursuant to § 11-107] is necessary to avoid a harsh and inequitable result upon a finding that there exists, at the time of the request for extension, an unconscionable disparity in the parties’ respective standards of living which would justify an award of indefinite alimony.” Majority op. at 64. To reach this conclusion, it ignores the plain language of the statute in favor of “other sources to ⁸² divine legislative intent.” Majority op. at 65.

Thus, it relies on the Governor’s Commission Report and its stated goal of vesting considerable discretion in the courts to fulfill the statute’s goal “to provide for an appropriate degree of spousal support in the form of alimony after the dissolution of the marriage.” Id. (quoting McAlear v. McAlear, 298 Md. 320, 348 , 469 A.2d 1256, 1271 (1984)). It also relies upon the fact that several of the factors set out in section 11—106(b) are equitable in nature, the Commission’s recognition that indefinite alimony entitlement should be determined on a case-by-case basis, this Court’s recognition in Tracey that section 11-106, consistent with the Governor’s Commission’s aims, sought to achieve judicial flexibility in the award of alimony, and our previous rejection of a mechanical application of a statute which would limit the discretion of the court to fashion an appropriate award. Majority op. at 66-67.

The achievement of equity and flexibility is not furthered by permitting the trial court, on the petition of a formerly dependent spouse pursuant to § 11-107, to revisit the duration of alimony issue long after it has determined that the appropriate form of alimony is rehabilitative. The legislative scheme, consistent with that proposed by the Governor’s Commission, provides all of the flexibility and equity necessary. Just as important, it provides that flexibility and equity at the threshold—at the point where the court must decide between rehabilitative and indefinite alimony. Moreover fairness and equity are not compromised by confining the option to that stage.

When the trial judge’s prediction is proven, factually, to have been inaccurate—that rehabilitation cannot be achieved in the time predicted—section 11-107 affords the trial judge the means and opportunity to correct it. It does so by permitting the court, upon a showing that it would otherwise be a harsh and inequitable result, to extend the period of time in which the formerly dependent spouse’s rehabilitation is to occur. Section 11-107, by its very terms, and as indicated by its place in the statutory scheme was never intended to be a mechanism whereby the court is enabled to reverse a judg ⁸³ ment previously made, final when made, and not appealed or, if appealed, not reversed on appeal. In other words, § 11-107 was never intended to provide the formerly dependent spouse with a second opportunity to prove what he or she was unable to prove the first time—that he or she is entitled to indefinite alimony.

See Thomasian v. Thomasian, 79 Md.App. 188, 195 , 556 A.2d 675, 678 (1989). But that is precisely what the majority opinion allows and, indeed, encourages. Under the majority’s holding, the goal of the Governor’s Commission, to restructure alimony so that it is not a lifetime pension, is thwarted. By permitting a party to establish that the trial court’s prediction that rehabilitative alimony was required in a given case was not accurate, what started out as rehabilitative alimony not only can, but in subsequent cases will, become a lifetime pension.

Just as disturbing is the fact that the predicate for that lifetime pension will not be the standard of living of the parties during the marriage, as measured by the wealth they amassed during the marriage, but the post-marriage fortunes of the payor former spouse. Under the majority’s holding, it would be appropriate for the trial judge to award alimony for an indefinite time if the payor former spouse were to hit the lottery, settle a lawsuit involving personal injury resulting from an accident occurring subsequent to divorce, inherit funds after the divorce, or, as in this case, increase his or her earnings significantly. It is my understanding that the alimony laws were designed to distribute equitably, among the parties, the fruits of the marriage and to ensure, as much as possible that the dependent spouse not slip too far below the standard of living that he or she helped to establish and not to redistribute the gains of one of the parties, made subsequent to and, perhaps, fortuitously after, the divorce. Moreover, under the majority’s view, there is little incentive for the dependent spouse to seek to become self-sufficient; indeed, there may be a disincentive.

So long as the payor former spouse is doing well or can be expected to do well, the dependent former spouse would be well advised not to reach maximum self-sufficiency; he or she, under this opinion, would ⁸⁴ be wise to avoid achieving maximum self-sufficiency because if he or she does not and the other party increases his or her income significantly, then a sufficient change in circumstances will have occurred and the court’s discretion to award indefinite alimony again will be engaged. CHASANOW, J., joins in the views expressed herein. . The Report of the Governor’s Commission on Domestic Relations Laws (1980) summarized its position with respect to alimony, as follows: With respect to the period of time that should be provided for the payment of alimony, the Commission has chosen the following ap ⁷⁸ proach as best meeting the requirements of fairness, definiteness, and facility of administration: (a) The award of alimony in the ordinary case should be for a specific time, and that time should be stated in the Order or Decree making the award. Preferably, that time should be fixed in relation to a specified program or goal on the part of the recipient party that will lead to self-sufficiency before that time.

(b) The court should have the power to extend that time, under certain circumstances, to avoid a harsh and inequitable result. The Commission believes that a fixed time, at the end of which the parties’ financial ties in regard to alimony would "self destruct,” has the merits of (1) letting the parties know immediately where they stand, (2) stimulating the parties and the Court to consider the problem of attaining self-sufficiency in time to act to resolve them, and (3) avoiding the need for further Court appearances and additional litigation. For those extraordinary situations, where the time imposed by the Court is insufficient without the fault or responsibility of the recipient party, there would remain power in the Court to review the situation and act on the basis of that review. Id. at 4. .

This is not a case in which the trial court predicts that, ultimately, indefinite alimony will be required, but recognizes that the achievement of maximum self-sufficiency requires that a greater amount of alimony be paid initially, and so structures the indefinite alimony, albeit calling it first, rehabilitative and, then, indefinite, in order to achieve that result. See Coviello v. Coviello, 91 Md.App. 638 , 605 A.2d 661 (1992). Such an approach is not, however, necessarily inconsistent with the approach that I take in this case. MURPHY, Chief Judge.

This case involves the proper application and interrelationship of Maryland Code (1984, 1991 Repl.Vol., 1993 Cum. Supp.), §§ 11-106 and 11-107 of the Family Law Article. Specifically, we must decide whether a party who was awarded, at the time of divorce, “rehabilitative” alimony for a fixed period may, upon its termination, be awarded alimony for an indefinite period based upon a judgment that circumstances now exist which would render a termination of alimony inequitable. We consider also whether the failure of the formerly dependent spouse to reach an expected income level, with or ⁵⁶ without a concomitant increase in the income of the other spouse, is properly a “circumstance” arising subsequent to the initial alimony award that would provide the basis for an indefinite extension of alimony.

Section 11-106 governs the determination of the amount and duration of an alimony award; it provides, in relevant part: “(a) Court to make determination.—(1) The court shall determine the amount of and the period for an award of alimony. • * * * * * “(c) Award for indefinite period.—The court may award alimony for an indefinite period, if the court finds 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.” Section 11-107 provides for the extension of a period of alimony, or the modification of the amount, in certain situations. It provides, in relevant part: “(a) Extension of period.—[T]he court may extend the period for which alimony is awarded, if: “(1) circumstances arise during the period that would lead to a harsh and inequitable result without an extension; and “(2) the recipient petitions for an extension during the period.” I Jack D. Blaine and Bryna J. Blaine were married on February 16, 1967. Early in the marriage, Ms. Blaine worked outside the home while her husband completed medical school, an internship and a residency. After the couple’s two children were bom, Ms. Blaine worked in the home as mother and ⁵⁷ homemaker while Dr. Blaine worked as a physician.

Difficulties developed in the marriage, and the couple separated in April 1983. On November 15, 1985, Ms. Blaine was granted an absolute divorce in the Circuit Court for Montgomery County; at that time she was also awarded alimony. As to the alimony award, the court (Beard, J.), in its Memorandum and Order, stated the following: “[Dr. Blaine] is currently employed as a psychiatrist by the National Institute [of] Mental Health and earns an annual salary in excess of Sixty-Two Thousand Dollars ($62,000.00). For the past few years, [Ms. Blaine] has worked as a teacher’s aid[e] during the children’s school hours and earns approximately Ten Thousand Dollars ($10,-000.00) annually.

She is also presently seeking a master[’]s degree, which she anticipates will be completed in two to three years. “Both [Dr. Blaine] and [Ms. Blaine] are in their middle years. Presently both parties have regular incomes, through [Ms. Blaine’s] is disproportionately less than that of [Dr. Blaine]. The conduct of [Dr. Blaine] is the basis upon which the marriage has terminated. The parties have been married for eighteen years.

At this time each party enjoys good health, both physically and mentally. The primary source of financial support for the maintenance of the family has been provided by [Dr. Blaine]. Based upon the entire record, the evidence and testimony produced by the parties and other witnesses at the hearings in this case with respect to the financial needs and resources of the parties, the ability of each to be wholly or partially self-supporting, the standard of living established during the marriage, the duration of the marriage, contributions, monetary and non-monetary of each party to the well-being of the family, the ... circumstances leading to the estrangement of the parties and ... the dissolution of the marriage, the age and physical condition of the parties, the health and well-being ⁵⁸ of the minor children, and having balanced the monetary-award with the alimony, child support and fees granted, it is by the Circuit Court for Montgomery County, Maryland, this 15th day of November 1985, Hs sfc * * * * “ORDERED, that Jack D. Blaine pay to Bryna J. Blaine alimony in the amount of Eight Hundred Dollars ($800.00) per month for sixty (60) months beginning December 1, 1985 and on the 15th of each month thereafter, beginning January 15, 1986, and including November 15, 1990, or until the death of either party or the remarriage of Bryna J. Blaine....” 1 Ms. Blaine timely filed a Motion to Extend and Increase Alimony. In her motion, she stated that Dr. Blaine was now earning more than $140,000 per year, while she was earning approximately $25,000 per year, and thus there was “still a vast disparity of income between the parties in favor of [Dr. Blaine].” She stated that she had “not been able to rehabilitate her condition” and therefore alimony should be extended and increased.

At a July 19, 1991 hearing before a domestic relations master, it was noted that in May 1988 Ms. Blaine had earned a master’s degree in health promotion counseling from Trinity College, in Washington, D.C. As Ms. Blaine testified, health promotion counseling was a new field which involved counseling employees to maintain healthy lifestyles, for the purpose of reducing medical costs and, consequently, employers’ health-related costs. Ms. Blaine testified that she had expected to make approximately $40,000 a year as a health promotion counselor. Unfortunately, the career opportunities Ms. Blaine had expected upon graduation did not materialize. She testified that ⁵⁹ the field became static, because the economic recession caused employers to discontinue, reduce, or not expand such programs.

She had made diligent efforts to find employment, applying for more than a hundred positions in health promotion counseling or general counseling. But she was unable to find a position that equaled or exceeded the income she was earning at the time from her full-time position with the Montgomery County Board of Education, supplemented by two part-time jobs, one teaching Hebrew school once a week, the other serving occasionally as a proctor for the administration of standardized tests. 2 She stated, moreover, that her degree was not the equivalent of a Master of Social Work degree and that she was not qualified to conduct psychological evaluations and treatment. She also testified that she did not have teaching credentials and that she had no prospects for advancement in her current position. In a December 3, 1991 Order, the master set forth a number of findings, including the following: “3. [Ms. Blaine] made reasonable efforts to obtain employment in a field for which she trained.

She also sought employment in counselling. She received no offer equal to the sum of her part-time jobs. “4. [Ms. Blaine] has no potential for advancement in her present job. sjs sfc % % sj« “7. [Dr. Blaine] has gross income of $136,750.00 per year before consideration of his tax shelters. ⁶⁰ “8. [Ms. Blaine] has gross income of $31,000.00 per year from three jobs. “9. The parties did not anticipate that [Ms. Blaine] would not be able to obtain a job in the field for which she was pursuing her Master’s degree at the time of the parties’ divorce. :§: * * * ❖ * “11. [Ms. Blaine] has made as much progress toward becoming self-supporting as can reasonably be expected; the respective standards of living of the parties are unconscionably disparate. “12. The lack of jobs in the health promotion counselling field was a change of circumstances and the inability of [Ms. Blaine] to obtain the anticipated income would lead to a harsh and inequitable result without an extension of alimony.” The master recommended that Dr. Blaine’s obligation to pay alimony to Ms. Blaine in the previously awarded amount of $800.00 per month “be extended for an indefinite period.” Dr. Blaine filed exceptions to the master’s recommendations; the circuit court (Ryan, J.) denied the exceptions, affirmed the master’s findings and recommendations, and ordered that the alimony- payments of $800.00 per month be extended indefinitely.

Dr. Blaine appealed to the Court of Special Appeals; that court held that the circuit court was correct in concluding that there was a “change in circumstances” subsequent to the original alimony award justifying the extension of the award. Blaine v. Blaine, 97 Md.App. 689, 706 , 632 A.2d 191 (1993). It also held that the trial court did not abuse its discretion in concluding that a “harsh and inequitable result” would occur without the extension. Id. at 706-07 , 632 A.2d 191 .

The intermediate appellate court concluded that § 11-107 authorized an extension of alimony for an indefinite term even though indefinite alimony was not awarded at the time of divorce. Id. at 7Ó7, 632 A.2d 191 . Finally, it held that the trial court did not abuse its discretion in finding that Ms. ⁶¹ Blaine was entitled to indefinite alimony. Id. at 711 , 632 A.2d 191 .

Dr. Blaine filed a petition for certiorari on December 13, 1993 which we granted to consider the important issues presented in the case. II Dr. Blaine maintains that the trial court and the Court of Special Appeals erred in their application of § 11-107. He says that the statute does not authorize an award of indefinite alimony following a fixed period of rehabilitative alimony; that the principles of res judicata and collateral estoppel bar a court from awarding indefinite alimony where it had earlier been determined that it was not appropriate; and that such a determination had been made is implicit in that indefinite alimony was not awarded to Ms. Blaine at the time of divorce. Dr. Blaine further argues that the failure of Ms. Blaine to achieve her particular career goal is not a “change of circumstances” warranting the extension of alimony.

He asserts that an extension of alimony should be granted only in extraordinary situations. Moreover, he says, Ms. Blaine’s financial circumstances have improved since the original award, and she is now self-supporting. He observes that the principal purpose of the alimony statute is to provide funds for a specific time so that the formerly dependent spouse can acquire skills and training to become self-supporting. He contends that the trial court was clearly erroneous in granting indefinite alimony to Ms. Blaine.

Dr. Blaine suggests that an extension of rehabilitative alimony may not be premised upon his improved economic circumstances, or upon the present existence of an “unconscionable disparity” in the parties’ respective standards of living which was not anticipated at the time of divorce. He urges that a former spouse is not entitled to have his or her standard of living “keep pace” with that of the other spouse. He asserts that just as a trial court may not reserve alimony based upon a vague possibility that the incomes of the parties ⁶² will become unconscionably disparate, it also may not “retrospectively” award alimony because a disparity has developed subsequent to the divorce proceeding. Ms. Blaine asserts that the fact that a party may be self-supporting does not preclude a review of whether indefinite alimony is warranted.

She observes that, while the principal purpose of alimony may be rehabilitative, the legislature has nonetheless provided for indefinite alimony where appropriate—where the parties’ respective standards of living are “unconscionably disparate” and the result would be “harsh and inequitable” if alimony were not extended. She asserts that the respective economic circumstances of the parties, combined with her inability to achieve her expected employment and salary, and accompanying standard of living, were sufficient to meet the statutory requirements providing for extended alimony. She avers that such a determination must be made on a case-by-case basis, and the fact that she is working more than one job and earning just 22.7 percent of Dr. Blaine’s salary after five years of rehabilitative alimony indicates that the award of indefinite alimony was appropriate in this case. Ms. Blaine also argues that the doctrine of res judicata does not foreclose a trial court’s further consideration of the issue of alimony if circumstances have changed during the period of rehabilitative alimony.

She asserts that the statutory provisions clearly allow for changes in alimony awards subsequent to the original award, and