Bricker v. Bricker

ROSALYN B. BELL, Judge. We are asked to decide whether a trial judge of the Circuit Court for Washington County erred in awarding indefinite alimony and in addition ordering the economically independent spouse to reimburse the other for future medical insurance premiums. While we conclude the trial judge did not err in awarding indefinite alimony, we hold he did err in ordering reimbursement for future medical insurance premiums. INDEFINITE ALIMONY Before reaching the first issue presented, we will look briefly at alimony from a historical perspective.

Until 1980, the only alimony the courts in Maryland could award was technical alimony. Moreover, technical alimony could only be awarded by the court. Technical alimony was specifically defined by Judge Powers in Simpson v. Simpson, 18 Md.App. 626, 628-29 , 308 A.2d 410 (1973), as follows: “Alimony is a money allowance payable under a ju[d]icial decree by a husband at stated intervals to his wife, or former wife, during their joint lives or until the remarriage of the wife, so long as they live separately, for her support and maintenance. ⁵⁷³ “a. It must terminate on the remarriage of the wife, “b.

It must terminate on the death of the wife. “c. It must terminate on the death of the husband.” (Footnote omitted.) For completeness, we would add that the award was modifiable by the court. While we must substitute “economically dependent spouse” for the term “wife” and “economically independent spouse” for the term “husband,” see Hofmann v. Hofmann, 50 Md.App. 240, 244 , 437 A.2d 247 (1981), Md.Fam.Law Code Ann. § 11-101 (1984), this definition of technical alimony is essentially the same as what is now designated as indefinite alimony. 1 In 1980 there was a major revision in the law relating to alimony. That change was much more than merely giving a new name to an old concept.

In 1976, Marvin Mandel, then Governor of Maryland, had established a Commission on Domestic Relations Laws “to undertake a complete study of the constitutional, statutory, and common law concerning domestic relations, including the laws concerning marriage, the dissolution of marriage, the rights and obligations attendant upon or accruing from each, and the procedures for resolving and adjudicating domestic disputes.” 2 The first report of the Commission was the impetus for sweeping legislative changes in property rights in the event of divorce in Maryland. The second report of the Commission dealt with alimony. In its Report, the Commission referred specifically to the term of alimony awards: “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. ⁵⁷⁴ “b. The Court should have the power to extend that time, under certain circumstances, to avoid a harsh and inequitable result.” On the issue of self-sufficiency, the Commission asserted: “The Commission believes that the proper solution is neither to forbid nor to require either equality or discrepancy with respect to the standard of living of the parties after a divorce. Our proposal does not require the Court to make the two standards the same. It does empower the Court, however, in cases where the standard of living of the recipient party would be unconscionably disparate from that of the paying party, to provide for an extended or indefinite period of payment.

This allows the matter of relative standards of living to be resolved, as it seems to us it must bé, on a case-by-case basis.” 3 The general principles dealing with alimony are now a part of Md.Fam.Law Code Ann. §§ 11-101 to 11-111 (1984). The authority for indefinite alimony appears in § ll-106(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.” In the instant case, the trial judge concluded that both these situations applied, opining: “The Court finds that the husband is wholly self-supporting, but the wife is only partly self-supporting. In view of her age, the present state of her health and her lack of significant work experience outside of the home, the Court finds that it cannot reasonably be expected that ⁵⁷⁵ the wife will make substantial progress towards becoming self-supporting. Even though she has been working between 55 and 60 hours per week, she is only partly self-supporting.

In order to earn her present income, she is working between 55 and 60 hours. It is unrealistic to expect she will continue to work such long hours in a physically demanding job, considering her age and the present state of her health. “In addition, the Court further finds that the wife has made as much progress towards becoming self-supporting as can reasonably be expected. I find that the respective standard of living of the two parties remains unconscionably disparate. Therefore, the Court is going to award alimony for an indefinite period, in the amount of $60.00 per week, plus a continuation of group medical insurance through the husband’s employer, Mack Trucks, Inc.” The judgment conformed to the court’s opinion.

Appellant filed a timely motion to alter or amend this judgment. The motion was granted in part in that the award for medical insurance was amended. More details in connection with this issue will appear later. Appellant does not dispute the facts as found by the trial judge.

He takes a different tack. He points out that the wife produced no expert testimony or evidence on her inability to secure employment that would be more economically advantageous. He asserts that, absent that evidence, the trial judge of necessity was speculating in making the award. Expert testimony on an issue is necessary if the trier of fact cannot reasonably infer the ultimate conclusion without favorable expert testimony.

Schweitzer v. Showell, 19 Md.App. 537, 543 , 313 A.2d 97 (1974) (relationship between knee injury and spinal disc involvement). A trial judge can determine without expert testimony whether a person can reasonably expect to achieve self-sufficiency or if the incomes of two persons will be grossly disparate. ⁵⁷⁶ These concepts are not foreign to most persons and are within the ability of a fact finder to deduce. That is not to say that it is inappropriate to have an expert in a situation such as this. Evidence of the degree to which an economically dependent spouse can or cannot reach self-sufficiency could not only be helpful, it could be preferable.

The issue here, however, is whether the evidence presented was sufficient to support the conclusion reached by the trial judge. To make that determination, we look at the evidence before the trial judge. The parties had been married for about 25 years. Two children, who have reached their majority, were born to the parties.

When she became pregnant, the wife left her job. Except for the first two or three years of the marriage and again after the parties separated in 1981, the wife did not work outside the home. The decision that she remain a full-time homemaker during the marriage was a mutual one. Both parties were high school graduates.

The wife was 50, the husband 46. The court specifically found: “After the parties separated, the wife went to work for Dunkin-Donuts for approximately two years and then went to work at Jeanne’s Confectionery in Williamsport. She works six days a week, between 55 and 60 hours per week. Recently, on a temporary basis, she has worked as much as 70 to 72 hours per week.

She is paid $3.35 per hour, plus tips which are pooled together and divided once a month.” And “The wife suffers from an asthmatic condition. She takes medication year-round. When she experiences an ‘attack’, it becomes difficult for her to breathe and she needs the care of a doctor. She has not been hospitalized in the last year and a half, and her condition has been under control for the past year or so. “The wife testified her husband is in good condition for his age.

He testified he has health problems: high blood pressure (160/118), irregular heart beat and chronic pulled muscle in his back. Neither spouse has been ⁵⁷⁷ unable to work regularly because of health problems. The wife’s job is very physically demanding, particularly in view of the unusually long hours.” He further found: “The wife’s gross monthly income is $788.79; his, $2242.02. Her net income is $638.82; his, $1503.35.

Their principal asset, as listed in their net worth statements, is the one-half interest in the proceeds from the sale of the marital home.” Based on these facts alone, the trial judge could have concluded, as he ultimately did, that she had not become self-supporting during six or seven years of separation due to her age and illness and she could not reasonably be expected to become self-supporting. The trial judge also knew the gross income of appellant was $2,242 per month; that of appellee was $788.79. Maximizing her income while working excessive hours, appellee’s income was only 35 percent of that of appellant. In Kennedy v. Kennedy, 55 Md.App. 299, 307 , 462 A.2d 1208 (1983), we held that the chancellor did not abuse her discretion in granting a wife indefinite alimony where her gross income was 34 percent of her husband’s.

Moreover, in Kennedy , we did not have the exacerbating condition that we have here; namely, that due to appellee’s health, she might not be able to continue the demanding hours of physical labor she was presently performing. Whether appellee could ever become self-supporting and whether the parties’ income would still be unconscionably disparate after she had made all the progress toward becoming self-supporting may be referred to as second-level facts or conclusions of law. As we noted earlier, the first-level facts are not disputed. The conclusions that are drawn therefrom are not clearly erroneous, we must affirm.

Rule 8-131(c). MEDICAL INSURANCE The parties had been granted a limited divorce on December 19,1985. In that decree, appellee was awarded alimony ⁵⁷⁸ and appellant was required to pay the mortgage installment on the family home. 4 Then on October 17,1987, an absolute divorce was granted, reserving alimony, monetary award and a contribution toward legal fees and expenses. As earlier mentioned, the order of December 21, 1987 which ordered alimony also provided for health insurance coverage.

It specified that appellant “pay for medical insurance coverage for [appellee] through the group insurance plan in force at his place of employment, Mack Trucks, Inc.” This was later amended to specify that appellant pay appellee “within fifteen (15) days after she submits to him an invoice therefor such amount as represents the quarterly premium on a Blue Cross/Blue Shield health insurance policy with a $500 deductible.” The order explained that this provision was in lieu of the group insurance coverage of the December 21, 1987 order. Appellant makes two arguments in pursuit of a reversal: (1) that appellee neither filed a petition to modify the alimony nor produced evidence of a change of circumstances as a prerequisite to modification; and (2) that, except under limited exceptions not here present, neither the common law nor any statute provides for payment of medical insurance premiums for surviving spouses. Hence, appellant argues that the court had no power to order reimbursement coverage of medical insurance over and above the alimony award. Modification The failure of appellee to petition the court for modification of the judgment is not controlling.

Appellant sought to alter or amend the judgment based on the unavailability of insurance coverage to appellee under the group health policy provided by Mack Truck. The trial judge concluded appellant was correct; based on the unavailability of that ⁵⁷⁹ benefit for appellee, he reconsidered the provisions he had made in the decree. A timely filed motion to alter or amend a judgment under Rule 2-534 stays the time for noting an appeal. In accordance with that Rule, the court may “open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision ... [or] may amend the judgment____” The trial judge did just that.

When a judgment in a domestic case is reversed by an appellate court because of an error in establishing a monetary award, on remand the trial court must reconsider the alimony awarded based on the interdependence of the two awards. Campolattaro v. Campolattaro, 66 Md.App. 68, 75 , 502 A.2d 1068 (1986). The judgment is a package, so when a judgment in a domestic case is amended following a motion to alter or amend, the trial court must reconsider those other portions of the award which are affected. If a change is made that affects the amounts awarded, a reconsideration of the remaining segments is required.

Once the trial judge concluded that he could not order appellant to provide and pay for coverage under appellant’s group insurance for reasons we will later discuss, he needed to consider the effect of this conclusion on the alimony awarded. In awarding alimony, one of the factors to be considered is “the financial needs and financial resources of each party____” § 11 — 106(b)(ll). The trial judge had reason to be concerned that appellee had no access to a group plan and that she did not have the resources to pay for medical coverage. He also had reason to be concerned about appellee’s possible preexisting condition, namely, the asthma.

He could not order appellant to continue medical insurance under the Mack Truck policy and was compelled by the situation to alter the method of providing coverage. Here, appellant sought the alteration or amendment of the judgment. The trial judge did amend, albeit not quite as appellant hoped. That Appellee did not seek modification is irrelevant.

The change in circumstances necessary for ⁵⁸⁰ modification is provided by the loss of insurance coverage through appellant’s employer. Authority of the Court to Order Payment of Medical Insurance in Addition to Stated Alimony Appellant’s second argument is more complex and requires an examination of alimony under the common law prior to the 1980 alimony statute and the current relevant statutes. We will examine whether the trial court is permitted to award reimbursement of medical insurance premiums over and above an award of alimony either under the common law or under the statute now authorizing alimony. Since we conclude the court may not do so, we will then look to other specific statutes which might prove applicable. —Alimony: Common Law and Statutory— The trial judge ordered appellant to reimburse appellee for the cost of an individual health insurance policy.

Appellant contends that, in the absence of an agreement between the parties, the court may award only periodic monthly payments of a fixed amount and has no power in the absence of a statute to require one spouse to reimburse the other for his or her expenses. —Common Law— At common law, alimony in the form of a money allowance was all that could be awarded by the court. Simpson, 18 Md.App. at 628 , 308 A.2d 410 ; the amount had to be established based on the circumstances as of the date of the award, Benner v. Benner, 37 Md.App. 367, 370 , 377 A.2d 582 (1977); and the money allowance could not be subject to automatic adjustment, Young v. Young, 61 Md.App. 103, 112 , 484 A.2d 1054 (1984). Hence, the money allowance was of necessity a fixed amount. At common law, the court may not require one spouse to satisfy joint obligations of the parties such as mortgages and taxes on real property, Schuman v. Schuman, 252 Md. 13, 15 , 248 A.2d 876 (1969), or pay the interest on joint ⁵⁸¹ promissory notes, Roberts v. Roberts, 160 Md. 513, 523 , 154 A. 95 (1931).

While it is inappropriate to require one spouse to pay the joint obligations of the other, it is even less appropriate to require one spouse to pay the sole obligation of the other. In Roberts, 160 Md. at 521-22 , 154 A. 95 , the Court of Appeals stated: “[N]o allowance to the wife in actions for