Boemio v. Boemio

¹²² ADKINS, J. In this case, we must determine whether a Circuit Court erred in consulting non-legislative guidelines as an aid when determining the amount and duration of an alimony award pursuant to Md. Code (1984, 2006 Repl. Vol.), Section 11-106 of the Family Law Article (“FL”). We hold that the consultation of guidelines promulgated by a rehable and neutral source that do not conflict with or undermine any of the considerations expressed in the statute is permissible. During divorce proceedings between Petitioner Boemio and Respondent Seixas, 1 Seixas petitioned the Circuit Court for Montgomery County for an award of alimony.

The court, after considering the twelve factors listed in FL Section 11-106(b) and consulting guidelines produced by the American Academy of Matrimonial Lawyers 2 (“AAML”), determined that Seixas was entitled to indefinite alimony of $3,000 per month. Boemio appealed the judgment. The Court of Special Appeals (“CSA”) affirmed the award, and we, in turn, affirm the intermediate appellate court. FACTS AND LEGAL PROCEEDINGS Petitioner Boemio and Respondent Seixas were married on October 12, 1985 in the District of Columbia and shortly ¹²³ thereafter made their home in Silver Spring, Maryland.

The couple had two children within the first five years of the marriage. In 1988, Boemio earned a Master’s of Business Administration in finance from George Washington University. This was his second post-graduate degree, as he had already earned a master’s degree in economics prior to the marriage. The same year he began his MBA studies, Boemio obtained a position at the Federal Reserve Board.

He remains in the Board’s employ to this day, leaving only to take a two-year assignment with a Swiss bank. Seixas had completed high school and one year of college instruction. For much of the marriage, she worked as a retail manager for CVS. That job, however, required 45 to 55 hour work weeks and was, according to Seixas, “very stressful” and “physically strenuous[.]” Consequently, she took a less demanding administrative assistant position, along with a $10,000 pay cut.

Boemio’s six figure salary and Seixas’ supplemental income afforded the couple what the trial court characterized as a “securely middle class” existence. It was “comfortable, but not extravagant.” They incurred little consumer debt and managed to pay off the mortgage on their Silver Spring home. Middle class comfort, however, did not make for a successful marriage. Boemio moved out of the marital home in January 2006.

Divorce proceedings began on May 26, 2006, when Boemio filed for divorce in the Circuit Court for Montgomery County, Maryland. In June 2007, Seixas filed an Amended Countereomplaint for Absolute Divorce, seeking use and possession of property, child support, alimony, and other relief. During a two-day trial before the Honorable Michael D. Mason, Seixas claimed that she was not self-supporting and needed alimony to maintain herself. Boemio argued that Seixas was able to support herself without alimony.

The court delivered its decision via oral opinion on July 19, 2007. It found that Seixas would not be able to maintain her accustomed lifestyle without alimony and that an unconscionable disparity existed and would continue to exist between the two ¹²⁴ parties. Thus, the trial court awarded Seixas $8,000 per month in indefinite alimony. Boemio appealed the ruling, arguing to the CSA that the trial court erred in its alimony award as to amount and duration by 1) consulting spousal support guidelines proposed by the AAML in addition to the factors set out in FL § 11— 106(b), and 2) looking only to the parties’ disparate incomes in determining duration.

In an unreported opinion, the CSA rejected Boemio’s allegations and affirmed the trial court. The court found that Boemio’s claims concerning the AAML guidelines were contrary to the record, given that the trial court gave a fully articulated FL § ll-106(b) analysis in addition to stating that the AAML guidelines were not authoritative and did not control the court’s decision. As for Boemio’s contention concerning the duration of Seixas’ alimony award, the CSA found that the trial court considered circumstances beyond income in determining Seixas’ need for indefinite rather than rehabilitative alimony. Boemio petitioned this Court for a Writ of Certiorari, which we granted to answer the following question: Did the trial court erroneously rely upon “alimony guidelines” which are not authorized by statute or rule in determining the amount and duration of alimony awarded to the appellee?

Because we answer in the negative, we will affirm the judgment of the intermediate appellate court. DISCUSSION I. Standard of Review “An alimony award will not be disturbed upon appellate review unless the trial judge’s discretion was arbitrarily used or the judgment below was clearly wrong.” Solomon v. Solomon, 383 Md. 176, 196 , 857 A.2d 1109, 1120 (2004) (quoting Tracey v. Tracey, 328 Md. 380, 385 , 614 A.2d 590, 593 (1992)). “[Ajppellate courts will accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.” Tracey, ¹²⁵ 328 Md. at 385 , 614 A.2d at 593 . “Thus, absent evidence of an abuse of discretion, the trial court’s judgment ordinarily will not be disturbed on appeal.” Solomon, 383 Md. at 196 , 857 A.2d at 1120 .

II

Analysis Title 11 of the Family Law Article governs alimony. See FL §§ 11-101 to 11-112. In particular, FL Section 11-106 guides courts when crafting the amount and duration of an alimony award. In making this determination, a trial court must consider the twelve factors enumerated in FL Section ll-106(b). 3 Additionally, FL Section ll-106(c) permits a court to award indefinite alimony, if it finds that: ¹²⁶ (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.

Boemio contests the trial court’s indefinite alimony award of $3,000 per month to Seixas. Specifically, he contends that the trial court erred by “abandon[ing]” an analysis of the twelve factors required under subsection (b) and the considerations in subsection (c), and instead relied exclusively on the AAML guidelines to fashion the award. Before responding to Boemio’s contentions, we will review the trial court’s findings. Regarding the first factor, the trial court found that, with a current annual income of $41,000, Seixas was unlikely to become entirely self-supporting.

That income was unlikely to increase because Seixas possessed only a high-school diploma and lacked the computer skills necessary to advance to a more lucrative administrative assistant position. The trial court also concluded that, despite her previous experience in retail, it would be unreasonable to expect Seixas to return to a similar position because the hours would interfere with her ability to raise her minor child. The trial court noted that the second factor did not apply in this case because Seixas did not request rehabilitative alimony. The third factor required the court to analyze the standard of living of the parties during the marriage.

The trial court described the parties as “securely middle class[,]” living a lifestyle that was “comfortable, but not extravagant.” Before the separation, they owned their home in Silver Spring without a mortgage, and' could afford to send their youngest child to private school. The couple was “very frugal, [putting] a lot ¹²⁷ of effort towards saving money for retirement, saving money for the future, saving money for their children’s education.” The Circuit Court considered the duration of the marriage as required by FL Section 11—106(b)(4), which was just over twenty-one years. The court then turned to the fifth factor, and considered the monetary and nonmonetary contributions of both parties during those twenty-one years. It found that the parties’ contributions to the marriage corresponded with their job earnings and responsibilities.

Initially, while Seixas was working in a retail management position that “placed enormous demands upon her time,” Boemio and Seixas’ parents provided most of the care for the couple’s two children. The roles changed as Boemio’s job at the Federal Reserve Board demanded more of his time and required him to travel frequently. Seixas responded to this shift by changing careers and taking a significant pay cut so that she could adopt the role of primary caregiver. The Circuit Court also found that neither party was at fault for the estrangement.

Rather, the two simply “grew apart.” Throughout the marriage, the couple maintained lives independent of each other and “didn’t do a whole lot of things together unless they directly related to the family.” Thus, the couple likely separated, the Circuit Court surmised, because they had nothing in common. With regard to the eighth factor, at the time of the trial Boemio and Seixas were 49 and 48 years old, respectively. Both parties were largely mentally and physically healthy. Seixas had developed a cataract problem, which she intended to have surgically corrected.

The ninth factor required the court to consider Boemio’s ability to provide alimony. The court calculated Boemio’s income and then subtracted from that amount taxes and necessary expenses, including college tuition for the couple’s youngest child. These computations netted a surplus income of $7,332 a month. Regarding the tenth factor, the parties had not entered into any enforceable contracts with each other.

A verbal, informal ¹²⁸ agreement did exist, however, whereby both would assist their youngest son in obtaining a college degree. The Circuit Court then calculated the financial needs and resources of each party. It considered Boemio’s $7,332 monthly disposable income. After analyzing Seixas’s income and expenses, including the primary care of the couple’s youngest child, the court found that she was living with a deficit of $1,726 per month.

The court also assessed the value of the couple’s assets, as required by FL Section 11-106(b)(ll). 4 The sole reference to the AAML guidelines occurred following the court’s analysis of the eleventh factor. At that point, the court was attempting to craft an alimony award that properly incorporated both the quantitative and qualitative considerations of FL Section 11-106. The judge was careful to explain that he referred to the guidelines “for informational purposes only[,]” and that they did not control the court’s decision. He added that the guidelines were not authoritative, and were “subject to all of the factors” articulated in the Family Law article.

The AAML guidelines consist of two formulas, one to calculate the amount of an alimony award, and the other to establish its duration. See Mary K. Kisthardt, Re-thinking Alimony: The AAML’s Considerations for Calculating Alimony, Spousal Support or Maintenance, 21 J.' Am. Acad. Matrimonial Law. 61, app.

A (2008). The guidelines also provide “deviation factors” that may signal a necessary adjustment to the recommended amount or duration. 5 Id. To com ¹²⁹ pute the amount of alimony, the adjudicator is to take 30% of the payor’s gross income and subtract from it 20% of the payee’s income. Id. at 78.

This amount, however, cannot exceed 40% of the combined gross income of the parties when added to the gross income of the payee. Id. To determine the duration of the award, the AAML guidelines suggest multiplying the length of the marriage by one of the following factors: for zero to three years, a factor of 0.3; for three to ten years, a factor of 0.5; for ten to twenty years, a factor of 0.75; and for more than twenty years, permanent alimony. Id. at app.

A. In this case, the formulas produced a permanent alimony award of $3,816 per month. The trial court, however, rejected that amount as too much. Instead it awarded Seixas $3,000 per month. Boemio objects to the Circuit Court’s consultation of the AAML guidelines.

He contends that they improperly influenced the court’s decision as to the amount and the duration of the alimony. We address these arguments below. A. Amount Boemio contends that the trial court inappropriately supplanted its analysis of the FL Section 11—106(b) factors with the AAML formula. He bases this argument on the court’s decision to award $3,000 per month, notwithstanding it’s determination that Seixas’s monthly deficit was only $1,729.

In ¹³⁰ Boemio’s view, the court did not articulate any findings that would justify an increase of $1,271 per month over Seixas’s monthly deficit. Boemio’s attack on use of the AAML guidelines seems premised on the assumption that the court’s award must be capped at an amount that the court determines to be a spouse’s reasonable needs for day to day living, without regard to saving, funding a retirement, or onetime expenses. In the vast majority of divorce cases, courts’ awards will be capped in such a way by necessity—the increase in expenses when a couple lives apart rather than together is not matched by a correlating increase in income. But this is not always true.

Here, for example, in light of the pattern of savings demonstrated during the marriage, the Circuit Court was free to decide that it was fair and equitable to award Seixas an amount of alimony higher than what would suffice to pay her existing monthly bills. The Circuit Court explained its exercise of discretion by saying, with respect to her current financial statement: [Tjhat’s a very artificial and unrealistic view of her needs, because it looks at her current situation, based upon the fact that her husband left the family home, and took certain actions that, sort of, imposed this condition upon her. So that ... she had no house payment. And yet, clearly, the house is going to be sold.

She’d have to buy a house. Under the current situation, it doesn’t make any provision for her to ... be able to have any savings. And yet, clearly, this was a family that, instead of buying things, was very good about saving money. And that’s part of the lifestyle.

They devoted their energies towards ... saving for the rainy day. Saving for the future. And under the financial statement, that’s not provided for. They went out to the theater.

That’s not provided for under her current situation. She’s not doing that. She’s not going to the movies. So that’s why I found that the financial statement, as prepared, really doesn’t permit her ¹³¹ to maintain the lifestyle that she enjoyed during the course of the marriage.

We see two points made by the Circuit Court in its analysis set forth above: (1) expenses shown on Seixas’s financial statement were not static, and (2) savings, which were not included on the financial statement, were part of the pattern of the couple’s lives during the marriage. The Circuit Court acted within its discretion in declining to limit its award to the monthly expenses it found Seixas needed based on her current financial statement. Additionally, as FL Section 11—106(b) requires, a court must consider, in making its award, the monetary and non-monetary contributions of the parties to the family as well as the standard of living that the parties established during their marriage. Here, the court found that Seixas’s sacrifices during the marriage enabled Boemio to advance his career and succeed financially.

The record reflects that Seixas reduced her earnings by leaving higher paying jobs in order to have more time to devote to the children. This is a legitimate and important consideration. The second prong of Boemio’s attack on the court’s use of the AAML guidelines is more direct—he insists that because the court noted what the alimony award would have been under the guidelines, it must have relied exclusively on the AAML guidelines to calculate the final judgment. We are not persuaded by his logic.

The Circuit Court clearly engaged in the required considerations under Section ll-106(b). Boemio conveniently ignores the court’s statements that the guidelines were “not authoritative[,]” were used “for informational purposes only[,]” and “[did not] control the Court’s decision.” Nor does he acknowledge the court’s express rejection of the $3,816 amount as “excessive.” In short, Boemio has failed to prove his charge that the court completely discarded its obligatory FL Section 11—106(b) analysis. To be sure, the Circuit Court consulted the AAML formulas, and a careful reading of the transcript compels the conclusion that the AAML guidelines played a role in its ¹³² decision. “Playing a role” is different from being the exclusive or dispositive criterion. Yet, we still must decide whether a court’s substantive consideration of these guidelines, along with the FL Section 11-106 factors, is a legitimate exercise of the Circuit Court’s discretion.

It is well-settled that Section 11-106 does not preclude a trial court from considering other factors in addition to the twelve mentioned. See Solomon, 383 Md. at 195 n. 15, 857 A.2d at 1120 n. 15 (“The twelve factors included in the test are non-exclusive____”). As the introductory language of subsection (b) provides, “[i]n making the determination, the court shall consider all the factors necessary for a fair and equitable award, including [the twelve listed].” See FL § 11-106(b)(emphasis added); see also Roginsky v. Blake-Roginsky, 129 Md.App. 132, 143 , 740 A.2d 125, 130 (1999), cert. denied, 358 Md. 164 , 747 A.2d 645 (2000) (“As the prefatory language in subsection (b) makes plain, the court is not restricted to a consideration of the factors that are expressly listed.”). While the statute provides factors, it gives the court little guidance on how to translate them into dollars.

We believe that if the guidelines reasonably direct the court to a fair and equitable award without supplanting or frustrating any one of the twelve enumerated statutory considerations, a court may refer to them as an aid in translating its statutorily mandated analysis into a dollar amount. In deciding whether use of monetary guidelines like the AAML’s will supplant or frustrate the statutory guidelines, we first consider what role monetary guidelines will play when applied in the context of a statute directing use of evaluative factors, but without direction as to how they translate into a monetary amount. Commentators have addressed the practical difficulties for judges and litigants when such statutory criteria are the only resource available: Of the three financial issues raised by divorce—asset division, child support, and spousal maintenance—the question of alimony is typically the least predictable and the most contentious____ On the issue of child support, while there ¹³³ remains room for bargaining by higher-income parents, most couples settle within the shadow, if not by strict application, of statutory child support guidelines. Only with regard to alimony is there no fixed frame of reference for discussions.

Spousal support negotiations are particularly difficult because of the absence of any objective standard for judging fairness or predicting outcomes. Statutes simply list factors for trial courts to consider without providing any guidance as to how the judge should weigh or apply them. Without predictable judicial parameters, the parties cannot readily assess the risks and benefits of pushing forward to trial, thereby making private resolutions problematic. At first reading, these legislative guidelines for awarding alimony appear fair and appropriate.

Closer inspection, however, reveals that the statutory criteria are so broad, idiosyncratic, or unclear in purpose or direction that they actually provide little practical guidance for—or limitation upon—judicial discretion. The majority of the statutory factors are laudable but imprecise, such as the instruction for a judge to take into account “a history of the contributions to the marriage by each party.” [ 6 ] [T]he statutes are [also] uniformly silent as to the manner in which the factors should be utilized to calculate an award. Not a single jurisdiction among those that list multiple alimony considerations ranks the factors’ relative significance or weight. Not a single statute explains how judges ¹³⁴ should apply the criteria.

The result is that both the trial and appellate courts look to a hodgepodge of factors, weighing them in an unspecified and unsystematic fashion, rendering it impossible for couples or their counsel to predict with any degree of certainty what the actual alimony award might or should be. Robert K. Collins, The Theory of Marital Residuals: Applying an Income Adjustment Calculus to the Enigma of Alimony, 24 Harv. Women’s L.J. 23, 23, 32-33 (2001) (quotation marks and citations omitted) (emphasis added) (footnote added). 7 Numerous courts across the country have resorted to non-legislative formulas as aids in crafting alimony awards. See generally Virginia R. Dugan & Jon A. Feder, Alimony Guidelines: Do They Work?, 25 Fam.

Advoc. 20 (2003) (describing the alimony guidelines developed in twelve different jurisdictions, including California, Florida, Maine, Michigan and Texas). For example, Maricopa County, Arizona, 8 frames its alimony awards around a “duration factor,” which is 0.015 times the number of years of the marriage. Id. at 20. That number is then multiplied by the difference in the parties’ incomes to render the final amount.

Id. In Kansas, several ¹³⁵ counties use what is known as the “Johnson County Guidelines,” which provide that alimony should be twenty percent of the difference between the parties’ gross monthly incomes when there are minor children and twenty-five percent of the difference when there are no children. Id. at 21. The Fairfax County Virginia Bar Association recommends that spousal support equal thirty percent of the payor’s income minus fifty percent of the payee’s income in cases where there is no child support.

See Kisthardt, supra, at 77. Where there is child support being paid, the formula is twenty-eight percent of the payor’s income minus fifty-eight percent of the payee’s income. Id. These guidelines provide predictability for both counsel and clients, increasing litigant satisfaction: “Experienced attorneys in California, where guidelines have been used [since 1977], have found clients accept the concept of guidelines much more readily than broad ranges of results when guidelines are not used.” See Hon.

Robert E. Gaston, Alimony: You Are the Weakest Link! Part 2, 10 Nev. Law. 36, 37, 38 (2002) (quoting George Norton, “The Future of Alimony: A Proposal for Guidelines,” Alimony, New Strategies for Pursuit and Defense, Section of Family Law, American Bar Association (1988)). We do not mention these examples to indicate that the specific numeric formulas are necessarily right for Maryland.

We use them to demonstrate that many courts, with statutes setting forth evaluative criteria, have considered it beneficial to utilize monetary guidelines as an aid in reaching their decisions. 9 The AAML guidelines were the result of more than two years of data-gathering by the AAML Commission. 10 See ¹³⁶ Kisthardt, supra, at 78. After extensively reviewing guidelines beings used in jurisdictions around the country, the Commission discovered that the common denominators in all were the income of the spouses and the duration of the marriage. Id. Thus, the AAML guidelines focused on those two factors.

Id. The formula was then tested against seven other guidelines that were being used or had been proposed, and the result fell within the norm. Id. Also, “[rjecognizing that certain circumstance[s] would render an award based solely on the [AAML formula] unfair, the Commission also included factors that would suggest a deviation.” Id.

As the AAML explained in the introduction to the guidelines, “[t]he proposed considerations are designed to be used in conjunction with state statutes that first determine eligibility for an award. They are not intended to replace existing state public policy regarding eligibility for an award.” See AAML, Considerations when Determining Alimony, Spousal Support or Maintenance 2 (2007). We believe that the AAML recommendations are the product of a careful study by a professional organization of knowledgeable practitioners, which are reasonable in approach, and do not supplant FL Section 11-106 or frustrate its goals. We consider these, and other legitimate and neutral guidelines, helpful to judges making alimony awards in Maryland. 11 Therefore, we conclude that the court did not err in ¹³⁷ consulting those guidelines after conducting its statutory analysis. 12 Rather, the court made an effort to be fair and equitable, as well as being mindful of the benefits of consistency in alimony awards for family law practitioners, litigants, and judges.

We wish to be clear, however, that our decision in this case does not mandate the use of any guidelines by circuit courts in performing their Section 11-106 analyses. As we explained in Solomon , “each case must be evaluated on its facts and not on some fixed minimum or universal standard.” 383 Md. at 198 , 857 A.2d at 1122 . Thus, in applying FL Section ll-106(b), circuit court judges may wish to consult no monetary guidelines, one particular set of guidelines, or a combination of guidelines. The knowledge, experience and judgment of the circuit court judges are the best determinants for making awards that are “fair and equitable” under FL Section 11—106(b).

B. Duration Boemio also challenges the trial court’s award of indefinite alimony under FL Section 11—106(c). He contends that the Circuit Court should have ordered alimony for a fixed period of time which would be sufficient to rehabilitate Seixas and allow her to be self-supporting. FL Section 11—106(c)(2) ¹³⁸ permits a court to award indefinite alimony, as compared with fixed-term alimony if “the respective standards of living of the parties [would] be unconscionably disparate” after “the party seeking alimony [has] made as much progress toward becoming self-supporting as can reasonably be expected.... ” The Circuit Court explained its decision to award indefinite alimony, reinforcing some of the points we have described above, and found an unconscionable disparity in the spouses’ respective standards of living: [Returning to the issue of the needs of the parties, based upon what I said, that is, that the analysis was done based upon what she needs, given the circumstances that she is currently in. I do find that that is not reflective of the style that the parties maintained during the course of the marriage.

And that, to maintain the style to