Cotter v. Cotter

BLOOM, Judge. By decree dated April 5, 1983, the Circuit Court for Anne Arundel County granted the appellee, Alberta E. Cotter, a divorce a vinculo matrimonii from the appellant, George R. Cotter. The decree also awarded Mrs. Cotter alimony of $800 per month “during the joint lives of the parties or until the Wife shall remarry” and a monetary award, reduced to judgment, in the amount of $184,828.80 plus interest to accrue thereon. Appellant was ordered to pay the judgment ⁵³² in fifteen equal annual installments of $12,321.92 plus judgment interest, with the first payment due April 1, 1984.

The court denied appellee’s request for counsel fees but assessed all costs against appellant. In this appeal, appellant makes the following contentions: (1) The court erroneously awarded alimony and entered a monetary award without considering all of the factors prescribed by Maryland Courts and Judicial Proceedings Code Annotated, Section 3-6A-05 and Article 16, Section 1. (2) The court erred in not crediting plaintiff with one-half of the mortgage payments which he made between the separation date and the judgment date. (3) The trial court erroneously evaluated plaintiff’s pension as of the date of judgment, rather than the date of separation.

(4) The court abused its discretion in awarding to defendant a lump-sum portion of plaintiff’s pension before plaintiff retires. (5) The court erred in admitting expert testimony upon less than twenty-four hours notice to the adverse party, when the calling party had been in consultation with the expert for over thirty days before giving notice of same and after the court learned that the expert’s testimony was based upon admittedly incomplete data. (6) The trial court abused its discretion in allocating certain costs to the plaintiff which the court found to have been unnecessarily incurred by defendant. We will discuss these contentions in a somewhat different order than appellant presented them.

FACTS The husband initiated the divorce proceedings alleging a voluntary separation since October 1976. The wife filed a cross-bill alleging desertion since October 1976 and adultery. ⁵³³ The parties were married in August 1950, when the husband was 22 years of age and the wife was 20. Both had high school educations and both were employed. Shortly after the marriage, the husband was recalled to active military duty.

After his discharge, he and the wife both secured employment at National Security Administration. The parties had two children, a son born in 1954 and a daughter born the following year. Both children died in infancy. They adopted a daughter in 1959, and the wife quit work to remain at home and care for the child.

They later adopted twin boys. At the time of the divorce, all of the children were adults. The parties purchased a large home in Anne Arundel County. For many years there was domestic tranquility.

Mrs. Cotter remained at home caring for the children and performing other domestic duties. Mr. Cotter attended school at night and eventually obtained a master’s degree while continuing to work at N.S.A. He is now the Chief of Staff for that agency. With over 34 years of service in the Federal Employees Retirement System, he is eligible to retire this year at age 55. If he were to retire, he would receive $37,745 per year.

In 1982 his salary was $58,500 plus a $10,000 bonus. At the time of trial he was expecting a raise in salary. Marital problems arose in July 1976. The husband left the home in November of that year and stayed with friends until he secured an apartment the following February.

The husband became romantically involved with his secretary. Although the wife suspected that the husband was guilty of adultery prior to the separation and accused him of adultery, the first proven act of adultery was in February 1977. The chancellor found that the husband’s leaving the marital home in November 1976 was the fault that destroyed the marriage. The separation continued from November 1976 to the date of trial.

During that period of time, the husband contributed about $750 per month in support for the wife in addition ⁵³⁴ to paying substantial sums for the children’s educations. The wife is now employed at an annual gross salary of $15,700 with a bi-weekly take home pay of $404.70. Her chances for advancement are slight. If she continues working, she can retire at age 65 at $640 per month, including social security.

In addition to the home in Anne Arundel County and its furnishings, the parties jointly own unimproved land in Colorado. There was a stipulation as to fair market values of certain property: $100,000 net for the house; $2500 for the furnishings; $4000 for a 24 foot boat owned by the husband; $500 for a 1974 Ford automobile and $600 for a 1973 Chrysler, both owned by the husband; and $5479.28 for jointly owned stocks. The parties agreed upon a division of the furniture and an equal partition of the Colorado real estate. Mr. Cotter would keep the Chrysler and give the Ford to Mrs. Cotter.

The house was to be sold and the net proceeds divided equally. The principal marital property was the husband’s government pension or retirement plan. On the basis of expert testimony produced by the wife, the present value of the pension was found to be $498,630 of which the marital portion was valued at $458,072. I Appellant complains that in awarding alimony and granting a monetary award the chancellor ignored some of the factors that, by statute, he was obliged to consider.

Maryland Cts. and Jud.Proc.Code Ann., § 3-6A-05(a) provides that in granting an absolute divorce or annulment, or at any time within 90 days thereafter, if in the decree the court has expressly reserved the power to do so, “the court shall determine which property is marital property if the division of property is an issue.” (Emphasis added). Subsection (b) provides that “[t]he court shall determine the value of all marital property. After making the determination the court may grant a monetary award as an adjust ⁵³⁵ ment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.” (Emphasis added). In determining the amount of the award and the manner of its payment, the court is required to consider each of nine separately enumerated factors, expressly including “any award of alimony.” As a corollary, in awarding alimony the court must consider, among other relevant factors, the financial needs and resources of both parties, including “[a]ny award made under §§ 3-6A-05 and 3 6A 06 of the Courts and Judicial Proceedings Article; ...” Md.Code Ann. art. 16, § 1(b)(1)(h).

Whether to grant a monetary award under § 3-6A-05 is discretionary, as is the amount of the award and its method of payment, so long as the chancellor considers the nine statutory factors. Grant v. Zich, 53 Md.App. 610, 614 , 456 A.2d 75 (1983), cert. granted, 296 Md. 110 (1983); Ward v. Ward, 52 Md.App. 336 , 449 A.2d 443 (1982). If a chancellor decides to make a monetary award, however, he is required to follow two procedures mandated by § 3-6A-05 in addition to considering the nine factors: he must determine which property is marital property if the division of property is an issue, and he must then determine the value of all marital property. Grant v. Zich, supra, 53 Md.App. at 614 , 456 A.2d 75 .

As the Court of Appeals pointed out in Deering v. Deering, 292 Md. 115, 129 , 437 A.2d 883 (1981), § 3-6A-05 provides the chancellor with the necessary flexibility to devise a fair marital property adjustment, but “the law commands the trial court both to ‘determine which property is marital property,’ if its division is an issue, and to ‘determine the value of all [such] marital property,’ . .. . ” (Emphasis added). Furthermore, § 3-6A -05(b)(8) requires the chancellor to give due consideration to any alimony decreed before making a monetary award. Id. at 131, 437 A.2d 883 . In the case sub judice, the chancellor failed to heed the commands of § 3-6A 05.

After recognizing that the ⁵³⁶ house, the household furnishings, the two automobiles, and the Colorado land fall within the definition of marital property, the chancellor gave them no further consideration, commenting that “they have been disposed of by agreement of the parties.” The only assets valued and considered for the purpose of making a monetary award were the husband’s pension, the jointly owned stock, and the boat. The chancellor apparently concluded that assets which the parties agree to divide equitably between them need not be regarded as factors to be considered in making a monetary award, but the statute requires the inclusion and evaluation of all marital property. Unless all marital properties are taken into account, the chancellor cannot properly consider all of the nine factors enumerated in § 3-6A-05(b) in determining a fair and equitable award. The nature and extent of all property owned by each spouse and the financial condition of each spouse at the time of the award are two of those statutory factors. § 3-6A-05(b)(2) and (3).

The cars and the furniture, stipulated to be worth an aggregate total of $3600, might have little significance in the overall picture, but a house stipulated to be worth $100,000 1 and twenty acres of land in Colorado acquired for $13,500 several years ago are significant items of property that should be taken into account. Since the chancellor failed to comply with § 3-6A-05(b) by considering and valuing all marital property, we will vacate the monetary award. II We can give short shrift to the contention that the chancellor erred in evaluating appellant’s pension as of the date of judgment rather than the date of the parties’ separation. Our recent decisions in Dobbyn v. Dobbyn, 57 Md.App. 662 , 471 A.2d 1068 (1984), and Gravenstine v. Gra ⁵³⁷ venstine, 58 Md.App. 158 , 472 A.2d 1001 (1984) now make it clear that marital property is to be determined and valued as of the date of divorce, not the date of separation.

In fairness to appellant’s counsel, we must note that Dobbyn and Gravenstine were decided after the briefs were filed in this case. Ill The assertion that the court abused its discretion in awarding to the appellee a lump-sum portion of appellant’s pension before appellant retires is an overly simplified condensation of a broad claim that under all of the circumstances, including the award of alimony, it was an abuse of discretion for the chancellor to grant the monetary award of $184,824.80, reduce it to judgment, and order it to be paid in fifteen annual installments beginning one year after the date of the decree. Mr. Cotter’s vested government pension rights, to the extent that they were acquired during the marriage, constitute “Marital Property” under § 3-6A-05 of the Courts and Judicial Proceedings Article of the Code. Deering v. Deering, supra.

Having properly determined that appellant’s pension rights constituted marital property, the chancellor proceeded to fix its value and determine how to allocate it between the parties. As the Court of Appeals pointed out in Deering , there were various alternatives available to the chancellor. The Court noted that the more salient of these alternatives were summarized by the Supreme Court of Wisconsin in Bloomer v. Bloomer, 84 Wis.2d 124 , 267 N.W.2d 235, 238 (1978), as follows: “First, the trial court could consider the amount of [the husband’s] contributions to the fund, plus interest, and award [the wife] an appropriate share .... Second, the trial court could attempt to calculate the present value of [the husband’s] retirement benefits when they vest under the plan.

Under this approach, the benefits payable in the ⁵³⁸ future would have to be discounted for interest in the future, for mortality .. . and for vesting .... The benefits would then have to be calculated with respect to [the husband’s] life expectancy as a retiree. This calculation involves considerable uncertainty, and the amount yielded changes as different assumptions are used with respect to mortality, job turn-over, etc. ... It has been recognized that this kind of calculation can be very difficult and that, where it becomes too speculative, the trial court should use a different method of valuation... .

Under either of the above two methods, the trial court would have the discretion to order the payment to [the wife] of her share in either a lump sum or in installments, depending primarily on the other assets and relative financial positions of the parties. The third method, which has been used widely ... is to determine a fixed percentage for [the wife] of any future payments [the husband] received under the plan, payable to her as, if, and when paid to [the husband] .... Under this approach, of course, it is unnecessary to determine the value of the pension fund at all. The court need do no more than determine the appropriate percentage to which the non-employee spouse is entitled.” Deering, 292 Md. at 130, 131 , 437 A.2d 883 (citations omitted).

In this case, the chancellor made a determination of the present value of appellant’s pension rights, granted a monetary award based largely on that value, and reduced the award to a judgment which the appellant was directed to pay, with interest, in fifteen annual installments. He chose that method over the other available alternatives despite the uncertainties inherent in calculating the present value of the husband’s future retirement benefits. Although the present value is necessarily dependent upon such matters as Mr. Cotter’s life expectancy, his future health and other factors that will affect his decision as to when to retire, fluctuations in interest rates and cost of living indices, and future congressional actions regarding cost of living adjustments ⁵³⁹ (or, possibly, merger of the Federal Employees Pension System into the Social Security System), the chancellor was apparently satisfied that the wife’s expert witness had taken all of these variables into account in arriving at an actuarial calculation of the present value of the pension. Appellant does not contend that the chancellor’s evaluation was wrong and, indeed, since there is evidence to support it, it is certainly not clearly erroneous.

Rule 1086. Nor does the appellant assert error in the chancellor’s choice of the “calculation of present value” method over the “contribution plan plus interest” method. Compare Grant v. Zich, supra, in which we approved the chancellor’s evaluation of the pension on the basis of the husband’s contributions only. In that case the evidence available to the chancellor related only to the husband’s contributions to the fund.