Campolattaro v. Campolattaro

BELL, ROBERT M., Judge. This is an appeal and cross-appeal from the judgment of the Circuit Court for Howard County, which, by order dated December 20, 1984, granted Mary Ann Campolattaro, appellant/cross-appellee (appellant), a divorce a vinculo matrimonii from Alfonso A. Campolattaro, appellee/cross-appellant (appellee); use and possession of the family home for a period of three years from the date of the order; rehabilitative alimony of $750.00 per month for two years; child support of $250.00 per child per month; a monetary award, which was reduced to judgment, in the amount of $6500.00; and attorney’s fees in the amount of $2,000.00. Appellant presents three questions: 1. Where the court grants a monetary award under Maryland Code (1984) Family Law, Sec. 8-203, is it reversible error when the court ignores the three-step process prescribed by the statutory scheme? 2.

Where a minor child graduates from high school at 16 years of age, is the payor parent responsible for college tuition and transportation expenses where the unemancipated minor child enters college the result of that parent’s promise to pay tuition and transportation expenses? 3. Did the trial court err in failing to award appellant alimony for an indefinite period as provided in Md. Code (1984), Family Law, Sec. ll-106(c)? and cross-appellant, but one: 4. Did the trial court err in awarding appellant $6500.00 as a monetary award plus interest where there was no evidentiary basis for an award in that amount? The first issue requires us to decide the extent to which the chancellor’s ruling must specifically address Maryland Code Ann.Family Law Art. § 8-203 et. seq., pertaining to the granting of a monetary award.

Stated differently, we ⁷² must determine what, if any, predicate a chancellor’s ruling must contain before we will give effect to the presumption that the chancellor knows the law. Because we have concluded that the chancellor’s ruling in the instant casé is devoid of any predicate or indication that he considered the appropriate sections of the Family Law article, we will vacate the alimony and monetary awards and remand the case to the trial court for further consideration; thus, it is unnecessary that we address issue no. 4. We find no merit in issue no. 2, and as to it, we will affirm. Sections 8-203 through 8-205 set out the statutory scheme which must be followed in making a monetary award.

Under § 8-203, “the court shall determine which property is marital property” if a dispute exists as to whether certain property is marital property. Section 8-204 provides that “the court shall determine the value of all marital property”. Finally, § 8-205 governs when and how a monetary award may be made: (a) Grant of Award — After the court determines which property is marital property, and the value of marital property, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. The court shall determine the amount and the method of payment of a monetary award after considering each of the following factors: (1) the contributions, monetary and nonmonetary, of each party to the well-being of the family; (2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; ⁷³ (8) how and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property; (9) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and (10) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

The chancellor is thus required to comply with a three-step process: 1. If an equitable adjustment over and above the distribution of the spouse’s property in accordance with its title is an issue, the court shall determine which property is marital property; 2. The court shall then determine the value of all marital property; 3. Finally, the court may make a monetary award as an adjustment of the parties’ “equities and rights” concerning marital property, whether or not alimony is awarded.

If an award is deemed appropriate, the court shall then consider each of [ten] factors enumerated in [section 8-205(a) ] in determining a fair and equitable amount and the method of its payment, (emphasis in the original) Harman v. Harman, 61 Md.App. 554, 562 , 487 A.2d 689 (1985); Wilen v. Wilen, 61 Md.App. 337, 355 , 486 A.2d 775 (1985); Nisos v. Nisos, 60 Md.App. 368, 377 , 483 A.2d 97 (1984); Ward v. Ward, 52 Md.App. 336, 339 , 449 A.2d 443 (1982). The award of alimony, including its duration, is governed by Maryland Code Ann.Family Law Art. § 11-106, which provides in pertinent part: (b) Required consideration. — In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including: ⁷⁴ 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; 3. the standard of living that the parties established during their marriage; 4. the duration of the marriage; 5. the contributions, monetary and nonmonetary of each party to the well-being of the family; 6. the circumstances that contributed to the estrangement of the parties; 7. the age of each party; 8. the physical and mental condition of each party; 9. the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony; 10. any agreement between the parties; 11. the financial needs and the financial resources of each party, including: (i) all income and assets, including property that does not produce income; (ii) any award made under sections 8-205 and 8-208 1 of this article; (iii) the nature and amount of the financial obligations of each party; and (iv) the right of each party to receive retirement benefits. (c) Award for indefinite period. — The court may award alimony for an indefinite period, if the court finds that: (1) due to age, illness, infirmiry, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or ⁷⁵ (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. As the statutes make clear, alimony and a monetary award are significantly interrelated and largely inseparable.

The decision to award one or both must be made after a consideration of them in their mutual context. Cotter v. Cotter, 58 Md.App. 529, 535 , 473 A.2d 970 (1984), Quigley v. Quigley, 54 Md.App. 45 , 456 A.2d 1305 (1983). Whether an award of alimony, either as to amount or duration, is grossly inequitable, can only be determined in light of all of the factors in the case, including the monetary award made. Cotter, supra.

This is so despite the fact that alimony is chiefly rehabilitative Holston v. Holston, 58 Md.App. 308, 321 , 473 A.2d 459 (1984) cert. denied, 300 Md. 484 , 479 A.2d 372 (1984) and is not designed to be a lifetime pension, while a monetary award is a mechanism by means of which “the equities and rights of the parties concerning marital property, whether or not alimony is awarded” may be adjusted. Dobbyn v. Dobbyn, 57 Md.App. 662, 679 , 471 A.2d 1068 (1984), quoting former Maryland Code Ann. Courts Art. § 3-6A-05(b). See Deering v. Deering, 292 Md. 115 , 437 A.2d 883 (1981); Grant v. Zich, 53 Md.App. 610 , 456 A.2d 75 (1983); aff'd. 300 Md. 256 , 477 A.2d 1163 (1984). It is thus patent that any disposition we might make with respect to the monetary award will most assuredly affect any alimony award made.

This case was tried on appellant’s bill of complaint for a divorce a vinculo matrimonii and on appellee’s cross-bill and lasted two and one-half days. At issue were alimony, child support, use and possession of the family home and family use personal property, monetary award and counsel fees, as to each of which the parties presented evidence and counsel argued the positions of their respective clients. In his opinion from the bench, the chancellor stated: Mrs. Campolattaro has unquestionably met her burden on the grounds of desertion and is entitled to a divorce a ⁷⁶ vinculo matrimonii. I am granting to Mrs. Campolattaro, use and possession of the family home for a period of three years.

I am also granting to Mrs. Campolattaro, because of the pension which he withheld for himself, and there was a $5,000.00 item, a judgment in the amount of $6500.00, which will be payable without interest when the house is sold on the market. I’m granting to Mrs. Campolattaro a $2,000.00 attorney’s fee, which will be joined with the $6500.00 judgment and to be liquidated after the house is sold. I’m granting to her for a period of two years, alimony in the sum of $750.00 a month. And I am granting to her, for the education, maintenance and support of the children, the sum of $250.00 per month per child.

With the older child, the girl, who will be seventeen — is it March or April or whatever. Dr. Campolattaro will be responsible for court costs. That is the judgment of this court. A colloquy between the court and counsel then occurred, during which appellant sought clarificátion and modification of the ruling.

As a result, the use and possession order was clarified. The court, however, specifically declined to modify its ruling in other respects; it denied appellant’s requests that appellee pay the mortgage payments on the family home, as well as her request that the court find appellant was entitled to an interest in a home which appellee purchased after the parties’ separation and which was titled only in appellee’s name. This exchange then took place: MR. GOLDBERG: And you haven’t named what marital is.

THE COURT: No, the property will be divided. And if they can’t make up their minds, we’ll make it for them. The, the personal property. MR.

GOLDBERG: No, I’m talking ... total properties, what’s marital property and what isn’t. THE COURT: What property? The house that ... MR.

GOLDBERG: Any properties that they acquired— ⁷⁷ THE COURT: ... that he owns in his name, she is not gonna — she is not going to, uh, participate in the home that he presently lives in. Anything else? MR. GOLDBERG: Nothing else, sir.

The evidence in the case included testimony concerning two pensions — one from the University of Maryland and the other from the United States Navy — to which appellee is entitled. Appellant proffers that neither pension was valued before the monetary award was made. As to the University of Maryland pension, she says that: appellee acknowledged that he withdrew funds from the pension; the chancellor concluded that those funds had been dissipated; and based on that finding the chancellor determined that appellant’s share of the pension was $4,000.00, which was incorporated into the monetary award made to appellant. Appellant contends that, although the evidence showed that appellee had contributed approximately $13,-683.00 to his Navy pension, the chancellor did not consider it in the calculation of the monetary award as demonstrated by his failure to mention or value it prior to announcing the award.

Appellant finally asserts that the chancellor ignored the fact that prior to its sale appellee borrowed $5,000.00 against a prior marital home and that appellant, without her knowledge, was required to repay that loan. She earnestly urges that these failures were in direct violation of the mandate of §§ 8-203 through 8-205. Appellant is correct, “[n]owhere does the trial judge ever enumerate what constituted marital and non-marital property.” Appellee does not