Blaine v. Blaine

⁶⁹³ HARRELL, Judge. On 15 November 1985, the Circuit Court for Montgomery County granted Bryna J. Blaine, appellee, a divorce from Jack D. Blaine, appellant, and awarded her alimony in the amount of $800.00 per month for sixty (60) months. Near the end of this time period, appellee filed a Motion to Extend and Increase Alimony. A domestic relations master heard the parties’ evidence and issued Findings of Fact and Recommendations proposing that the initial alimony award be extended indefinitely at the same monthly amount.

After considering exceptions to the master’s report, the chancellor issued an Order adopting the master’s recommendations. Appellant’s timely Notice of Appeal followed. Facts The parties were married on 16 February 1967. Two children were born to the Blaines.

At the commencement of the marriage, Ms. Blaine worked while her husband completed medical school, an internship, and a residency. After the children were born, Ms. Blaine worked in the home as a mother and homemaker while Dr. Blaine was employed as a physician. Difficulties arose in the marriage and, in April of 1988, the parties separated. The Circuit Court for Montgomery County granted Ms. Blaine an absolute divorce on 15 November 1985 and simultaneously awarded her alimony.

In its Memorandum and Order, the court (Beard, J.) noted the following in connection with its award of alimony: Plaintiff [Dr. Blaine] is currently employed as a psychiatrist by the National Institute on Mental Health and earns an annual salary in excess of Sixty-Two Thousand Dollars ($62,000.00). For the past few years, Defendant [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 ⁶⁹⁴ a masters degree, which she anticipates will be completed in two to three years[.] % sfc sj: í|: Both the Plaintiff and Defendant are in their middle years. Presently both parties have regular incomes, though the Defendant’s is disproportionately less than that of the Plaintiff.

The conduct of the Plaintiff 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 the Plaintiff.

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 fact that the circumstances leading to the estrangement of the parties and of the dissolution of the marriage, the age and physical condition of the parties, the health and well-being 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, * * * * H* * 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[.] Ms. Blaine received her Master’s Degree in health promotion counseling from Trinity College in Washington D.C. in May of 1988. She intended to become a business consultant, ⁶⁹⁵ counseling employees on how to maintain healthy lifestyles and, correspondingly, keep employers’ health costs at a minimum. Despite her diligent efforts to find a job in this field, she was unsuccessful. She blamed the recession, stating: “it seems with the economy falling down ... this is a fringe benefit, this is something that was easily wiped out for companies that had it, or certainly not added to.” On 29 November 1990, Ms. Blaine filed a Motion to Extend and Increase Alimony on the grounds that the scarcity of jobs in the field of health counseling rendered her unable to rehabilitate her condition.

She alleged that there was “still a vast disparity of income between the parties.” Based on the evidence received at a 19 July 1991 hearing, the master made a number of findings concerning Ms. Blaine, including the following: (1) her gross annual income totaled $31,000.00 from three jobs (in addition to her full time job with the Montgomery County Board of Education, she also worked approximately once a week teaching Hebrew school and occasionally proctored the administration of standardized scholastic aptitude tests); (2) she had exerted “reasonable efforts to obtain employment” in her field and sought employment in a related field (counseling), but received no offer that would equal or exceed the earnings from her three current jobs; (4) her current primary job held “no potential for advancement”; and (5) although she “made as much progress toward becoming self-supporting as can reasonably be expected,” the parties’ respective standards of living remained “unconscionably disparate.” With respect to Dr. Blaine, the master found that appellant’s gross income was $136,750.00 per year before consideration of tax shelters, and that neither he nor his former wife anticipated that she would be unable to secure a job in her new field of study after she received her Master’s degree. The master concluded that “[t]he lack of jobs in the health promotion counselling field was a change of circumstances and the inability of the defendant to obtain the anticipated income would lead to a harsh and inequitable result without an extension of alimony.” The master therefore recommended ⁶⁹⁶ that Dr. Blaine “pay alimony of $800.00 per month to [Ms. Blaine]” and that the alimony be “extended for an indefinite period.” 1 The circuit court (Ryan, J.) agreed and ordered the establishment of indefinite alimony as recommended by the master in an Order dated 8 June 1992. Additional facts will be supplied, as needed, in our analysis of the issues presented by this appeal. Issues Appellant presents the following three contentions for our consideration: 2 ⁶⁹⁷ (1) Where, during the period that the appellee received rehabilitative alimony, she earned her master’s degree and tripled her income, the trial court erred in indefinitely extending alimony pursuant to Family Law Article 11-107(a)(1), Code of Maryland; (2) Where the trial judge determined at the time the parties were divorced that an award of indefinite alimony was not appropriate, the court at a later date, acting pursuant to Family Law Article 11-107(a)(1), Code of Maryland, may not revisit that determinon [sic] and award indefinite alimony; (3) In determining whether or not pursuant to Family Law Article 11-107(a)(1), Code of Maryland, to extend the period for which alimony is awarded, it is not appropriate to consider the payor spouse’s post divorce increases in income.

Statutory Background Section 11-107(a)(1) of the Md.Code (1991 Repl.Vol., 1992 ⁶⁹⁸ Suppl.), Family Law Article 3 states: “[T]he court may extend the period for which alimony is awarded if ... circumstances arise during the period that would lead to a harsh and inequitable result without an extension[.]” Thus, we must decide whether the lower court was correct in finding that (1) a change in circumstance arose between the date of the original alimony award and when it considered the Motion to Extend and Increase Alimony, and (2) a failure to award the extension would have led to a harsh and inequitable result. If these criteria are met, and modification of the award is therefore appropriate, a court must nonetheless refrain from granting an alimony award for an indefinite time period unless appellee meets the requirements of § 11-106(c), which states: (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. Prologue An alimony determination may not be disturbed unless the trial court’s judgment is clearly wrong or an arbitrary use of discretion. Brodak v. Brodak, 294 Md. 10, 28-29 , 447 A.2d 847 (1982).

Although this standard of review has been in place for many years, see generally Westphal v. Westphal, 132 Md. 330, 334 , 103 A. 846 (1918), the enactment of Maryland’s present alimony statute in 1980 reaffirmed the discretion granted to trial court judges in divorce proceedings. The current law governing awards of alimony in Maryland, §§ 11-101 through 11-111 of the Family Law Arti ⁶⁹⁹ cle, was originally passed as ch. 575 of the Acts of 1980. In making alimony awards pursuant to this statute, courts must ascertain the intention of the legislature and execute the purpose of the law. See Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590 (1992).

To implement this objective of statutory construction, courts first look at the plain meaning of the statutory language to determine how the legislature intended a law to be applied. Id. The language of § 11-106(c) and § 11-107(a) is not complicated or difficult to understand. The key elements that one seeking a change or revision in an alimony award must prove are: (1) changed “circumstances” (§ 11 — 107(a)(1)) and (2) a “harsh and inequitable” result (§ 11 — 107(a)(1)) in the case of rehabilitative alimony; and, at least as far as the record of this case is concerned, 4 (3) for purposes of the award of indefinite alimony, “unconscionably disparate” standards of living after reasonable efforts at becoming self supporting (§ 11 — 106(c)(2)).

The problem with this language, however, is that it is not absolute and does not, in and of itself, hint at the sequential interplay, if any, between rehabilitative and indefinite alimony in the post-divorce unwinding of the economic dependency that ofttimes arises as part of a marriage. No situation is objectively “harsh and inequitable” or “unconscionably disparate”; rather, these are terms of relativity and questions of degree. When a statute is susceptible to more than one interpretation, courts must look at other sources of construction, such as statutory scheme and legislative history, to serve as guides to carry out the “purpose, aim, or policy of the enacting body.” Baltimore City C.A.U.T. v. Baltimore City, 321 Md. 184, 203 , 582 A.2d 510 (1990). The statutory scheme of the current alimony law provides trial court judges with a great deal of liberty to weigh the relevant factors and arrive at fair and appropriate results.

For example, alimony is never automatically granted or ⁷⁰⁰ barred unless waived; rather, provisions of the statute consistently note that the court “may award” an amount as circumstances require. See §§ 11-101-07. In addition, once alimony is awarded, no events (short of death or re-marriage) trigger a mechanical extension or termination — courts have been given the authority to remedy “harsh and inequitable results” or modify an award “as circumstances and justice require,” respectively, given the different natures of the two forms of alimony. See § 11-107(a)(1), § 11-107(b), § 11-108(3).

Furthermore, § ll-106(b) expressly requires a balancing of numerous factors of varying weights to reach a “fair and equitable award”. In sum, a major theme throughout the statute is one of empowering a judge to arrive at an equitable result based on a particular set of facts. See Tracey v. Tracey, 328 Md. at 388 , 614 A.2d 590 (1992) (“[T]he paramount goal of the legislature was to create a statutory mechanism leading to equitably sound alimony determinations by judges.”); McAlear v. McAlear, 298 Md. 320, 327-31 , 469 A.2d 1256 (1984) (recounting the history of alimony in Maryland as a function of equity). 5 The 1980 Report by the Governor’s Commission on Domestic Relations Laws (Report), upon which the 1980 enactment was largely based, provides the most accurate documentation of the history behind the current alimony provisions. It mirrors the statutory goal of providing trial court judges flexibility and power to achieve the most equitable solution possible.

Throughout its Report, the Commission consistently expresses the considerable degree of power historically grant ⁷⁰¹ ed to lower courts in divorce proceedings and emphasizes that courts are to use this power to examine the unique facts of a case and arrive at an equitable decision. See generally Tracey, 328 Md. at 389 , 614 A.2d 590 (“The 1980 Report supports our view respecting the equitable dimensions of the alimony statute.... the Commission made clear that a court, guided by the appropriate factors, should devise a just alimony award.”). The appellate courts of Maryland have previously interpreted the trial courts’ latitude in dealing with alimony under the post-1980 statutory framework in a number of instances. For example, if at the time of divorce the court fails either to award alimony or reserve the right to award alimony at a later date, it is forever barred from awarding it.

Turrisi v. Sanzaro, 308 Md. 515, 522 , 520 A.2d 1080 (1987). Moreover, it is not an abuse of discretion for a trial court to refuse to award alimony at the time of divorce when that relief is not requested. Melrod v. Melrod, 83 Md.App. 180, 195 , 574 A.2d 1 (1990). The scenarios that have been examined as to whether alimony may be awarded at the time of divorce teach the following: the award of alimony pendente lite is insufficient, in and of itself, to reserve the issue of indefinite alimony for consideration at the time of divorce or subsequently, Speropulos v. Speropulos, 97 Md.App. 613, 616-18 , 631 A.2d 514 (1993); a request by a litigant for “reasonable” alimony preserves the chancellor’s ability to award indefinite alimony because the term “alimony” is to be used generically, Cousin v. Cousin, 97 Md.App. 506, 518-20 , 631 A.2d 119 (1993); a trial court may, if the predicate facts are present, award both rehabilitative and indefinite alimony, Coviello v. Coviello, 91 Md.App. 638 , 605 A.2d 661 (1992); a court may decide to award rehabilitative alimony while exercising the power to reserve as to indefinite alimony, Benkin v. Benkin, 71 Md. App. 191 , 524 A.2d 789 (1987); and, rehabilitative alimony may not be awarded as an interim consolation prize to a dependent spouse who, in seeking indefinite alimony, had failed to convince the chancellor that her medical condition at the time prevented her from being employed in the only field of ⁷⁰² expertise for which she was trained, Thomasian v. Thomasian, 79 Md.App. 188, 192-96 , 556 A.2d 675 (1989).

In post-divorce modification contexts, however, the reported case law guidance constitutes a smaller universe. We know that “the doctrine of res judicata applies in the modification of alimony ... and the court may not re-litigate matters that were or should have been considered at the time of the initial award.” Lieberman v. Lieberman, 81 Md.App. 575 , 568 A.2d 1157 (1990), citing Lott v. Lott, 17 Md.App. 440, 444 , 302 A.2d 666 (1973). Moreover, a finding that the mental illness of the dependent former spouse, which was the ground for the rehabilitative award, had not improved and continued to prevent her from becoming employed, is an appropriate “change of circumstances” sufficient to warrant the award of indefinite alimony, on a motion to extend and increase the prior grant of rehabilitative alimony. Brashier v. Braskier, 80 Md.App. 93 , 560 A.2d 44 (1989).

It is against this background that we consider the instant case. Analysis The record before us could have been more complete. A fuller indication of all the bases underlying the 15 November 1985 Memorandum and Order in which Judge Beard addressed the alimony question initially, awarding rehabilitative alimony, is not provided. The record also does not indicate whether Ms. Blaine originally requested alimony generally or indefinite alimony specifically.

In addition, although rehabilitative alimony was awarded in 1985, there is no express indication that the circuit court denied any prayer for indefinite alimony that may have been sought by Ms. Blaine at that time. Nonetheless, the record is not so devoid of substance as to preclude us from addressing the issues raised in this appeal. In fact, the circuit court’s 1985 Memorandum and Order leaves two points clear. First, the court’s grant of alimony in 1985 was intended to be rehabilitative — not indefinite.

Al ⁷⁰³ though the court did not label the award by that title, the grant was a classic example of rehabilitative alimony: in a fixed amount, for a definite time, and terminating at a time when the court estimated Ms. Blaine would likely achieve greater financial independence. Second, it would appear that Judge Beard, in awarding rehabilitative alimony, considered the attainment of Ms. Blaine’s Master’s degree a significant factor. The degree was obviously a tool to assist her to achieve a higher paying job in a new field of work. A. Change in circumstances The first question before this court is whether the failure of Ms. Blaine to achieve her expected goal of launching a new career is the type of change in circumstances contemplated by § 11 — 107(a)(1).

In Thomasian v. Thomasian, 79 Md.App. 188 , 556 A.2d 675 (1989), there is some collateral discussion of the type of “circumstances” that may justify an alteration of an alimony award. In Thomasian , the lower court, at the time of the divorce, awarded rehabilitative alimony to Ms. Thomasian, the dependent spouse, for five years, expressly leaving open the question of indefinite alimony for a later determination within the five year period. Although Ms. Thomasian had contended that her medical condition (primarily poor vision caused by a hereditary disease) rendered her unable to work in her only field of expertise and she was not otherwise trained in an employable skill, the trial judge found her medical evidence “inconclusive” as support for the award of indefinite alimony at the time. He explained his reasoning for granting five years of rehabilitative alimony as providing an opportunity to see if she could become self-supporting in that period and, if not and she could later present better medical evidence of her inability to secure employment, the court would entertain the issue of indefinite alimony at that time.

On direct appeal of that judgment, we rejected such an interpretation as being the intended legal structure of § 11-107. We explained: Although § 11-107 provides a mechanism whereby the period of rehabilitative alimony may be extended, it contem ⁷⁰⁴ plates an extension based upon some changed circumstances occurring during the period when rehabilitative alimony is being paid. It does not contemplate the situation presented here wherein the court awards the rehabilitative alimony intending that the decision whether it will continue to be rehabilitative or will be changed to indefinite alimony would be finally determined during that period. Id. at 195, 556 A.2d 675 (footnotes omitted).

We therefore remanded the case for a more conclusive disposition on the issue of indefinite alimony. The fundamental importance of Thomasian lies not in it providing an example of a situation not qualifying as a change in circumstance; indeed, neither of the parties in Thomasian alleged any such change existed. Rather, Thomasian's primary significance lies in its demonstration of how the statutory scheme must be consistent