Coviello v. Coviello

BISHOP, Judge, dissenting. I dissent because I disagree that the trial court may award what the majority has termed “compound alimony,” i.e. rehabilitative alimony for a specified period with indefinite alimony continuing thereafter. Awards of rehabilitative alimony and indefinite alimony are mutually exclusive. In lieu of making a compound award, the trial court could have awarded indefinite alimony only, or it could have awarded rehabilitative alimony for a specified period and reserved the right to award indefinite alimony.

It should not have mixed, however, the two kinds of awards. Section ll-106(b) of the Family Law Article sets forth required considerations in making a determination of rehabilitative alimony. These considerations include, inter alia, the ability of the party seeking alimony to be wholly or partly self-sufficient; the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment; and the physical and mental condition of each party. The criteria for making an award of indefinite alimony are substantially different.

The court may award indefinite alimony if it finds that because of age, illness, infirmity or disability, the party seeking alimony cannot be expected to make substantial progress toward becoming self-supporting, or if it finds that even after the party seeking alimony will have made as much progress toward becoming self-supporting as can be reasonably expected, the respective living standards of the parties will be “unconscionably disparate.” Md.Fam.Law Code Ann. § ll-106(c) (1991). The functions of the two kinds of alimony awards are different. Rehabilitative alimony was designed to supplement the income of the recipient while he or she is becoming self-supporting. Indefinite alimony, on the other hand, was designed to alleviate “unconscionable disparity” between the living conditions of the parties that exist, even after the recipient has made as much progress as possible toward becoming self-supporting.

Unlike the majority, I believe that these two purposes cannot be accomplished simultaneously. ⁶⁶² The majority can point to no authority that directly supports the compound award in this case. Authority does exist, however, for the type of award I suggest in lieu of a compound award — namely an award of indefinite alimony only or an award of rehabilitative alimony and reservation of the indefinite award. Indefinite Alimony After “discussing at some length the relative premarital and marital incomes of the parties and their abilities to earn income after the marriage ... [the trial court] opined” that even after Mrs. Coviello found suitable employment, she would not be able to “close the gap between the parties’ earning capacities” and that the “parties’ standards of living will be unconscionably disparate.” If the trial court’s determination is not clearly erroneous, it would be error not to make an award of indefinite alimony. In Holston v. Holston, 58 Md.App. 308 , 473 A.2d 459 (1984), for example, we determined that the chancellor erred in not awarding indefinite alimony.

The facts in Holston were as follows. When the parties decided to marry, Mrs. Holston, who was in her sophomore year of college, quit school and took a job as a bank teller and then as a secretary so her husband could continue his education. Mrs. Holston had not worked outside the home, however, since 1967 when her husband was stationed in North Carolina. At the time of the divorce, Dr. Holston was an assistant professor at the University of Maryland Dental School.

He practiced dentistry through a family practice program and held numerous consulting positions. His gross income was $87,880 in 1981 and $86,343 in 1982. At the time Mrs. Holston left the job market in 1967, she was earning $5,000 as a secretary at the University of Maryland Medical School. At the time of trial, secretaries at the university were earning approximately $13,000.

The chancellor awarded Mrs. Holston alimony for three years at $150 per week, but declined to award indefinite alimony. This Court reversed the decision of the chancellor ⁶⁶³ and held that Mrs. Holston was entitled to indefinite alimony. We explained: Even if appellant [Mrs. Holston] re-entering the job market after fifteen years, would be able to gain employment at a similar salary, her earnings would be less than 15 per cent those of appellee. There is nothing in the evidence to indicate that appellant would ever be able to eliminate or even substantially diminish such disparity.

Assuming appellant used her three years of alimony to return to college, receive a decree and acquire a marketable skill, it is questionable whether after graduation she could earn a salary even approaching appellee’s earnings. Compounding the difficulty of obtaining an education and a marketable skill is the necessity to provide and care for five minor children. Reading the record, we see no reason to expect that if alimony terminates after three years the respective standards of living of the parties would not then be “unconscionably disparate.” 58 Md.App. at 323 , 473 A.2d 459 . In the case sub judice, the chancellor determined that Mrs. Coviello’s most realistic employment option was sedentary office employment.

The chancellor further determined that even after Mrs. Coviello was suitably employed there would still be a gap in the parties’ earning capacities and that the parties’ standards of living would be unconscionably disparate. Thus, in accordance with Holston , Mrs. Coviello is entitled to receive indefinite alimony in whatever amount will compensate her for the unconscionable disparity. Reservation of Indefinite Alimony There is support for the authority of the chancellor to award rehabilitative alimony now and reserve judgment on an award of indefinite alimony. In Turrisi v. Sanzaro, 308 Md. 515 , 520 A.2d 1080 (1987), the Court of Appeals held that a chancellor’s power to reserve judgment on an award of indefinite alimony was not abrogated by the 1980 Alimony Act.

In Turrisi , the parties were both medical doctors. Shortly after the parties were married, the wife was diag ⁶⁶⁴ nosed as having multiple sclerosis. The wife testified that as a result of her disease she was forced to abandon surgery and hospital work. Instead, she worked at an office family practice for two and a half to four hours daily for five days a week.

She had to use a cane to walk, could not walk straight, could not control her bowels or bladder, and needed special assistance and arrangements in order to conduct her practice. There was medical testimony that there is no cure for multiple sclerosis and that it is a chronic progressive disease. It was probable that the wife would be totally disabled in less than five years, and perhaps in less than two years. Despite her prognosis, the wife testified that at the time of the hearing she was self-supporting.

She requested, however, that if in the future she were unable to support herself that the court order her husband to pay support. On this testimony, the chancellor determined that the wife had declined an immediate award of alimony, and he held that he did not have power to reserve the question of future alimony. The Court of Appeals reversed. In a scholarly opinion that discussed alimony in historical perspective, particularly in light of the 1980 Alimony Act, Judge Adkins held that the chancellor had inherent power to reserve judgment as to alimony.

Judge Adkins explained: For example, facts before a court may demonstrate no present basis for either rehabilitative or indefinite alimony. But those same facts may show that a highly probable basis for awarding one or the other will exist in the immediate future. Under such circumstances, we see no reason why reservation would be inconsistent with the purposes of the [1980 Alimony Act]. 308 Md. at 527 , 520 A.2d 1080 . On the authority of Turrisi , the chancellor in the case sub judice could have reserved an award of indefinite alimony.

Moreover, if the chancellor awarded rehabilitative alimony now, the chancellor could have later modified the award to an award of indefinite alimony. Brashier v. Brashier, ⁶⁶⁵ 80 Md.App. 93 , 560 A.2d 44 (1989), cert. denied, 317 Md. 542 , 565 A.2d 670 . The facts of Brashier were as follows. During the year before the parties were married, Mrs. Brashier began to develop a nervous condition that stemmed from anxiety, depression and agoraphobia.

She received psychiatric treatment. Approximately two years after the marriage, Mrs. Brashier’s illness forced her to retire from her job of eleven and a half years as a contract specialist with the federal government. The parties' marriage deteriorated, and Mrs. Brashier brought suit seeking an absolute divorce and indefinite alimony. The chancellor refused to award indefinite alimony, instead, he awarded limited alimony in the amount of $300 per month for three years.

Mrs. Brashier later filed a Petition for Modification to increase and extend her alimony and to have Mr. Brashier furnish health insurance coverage. At a hearing before a master on the Petition, Mrs. Brashier presented evidence that there had been no change in her depressive condition and that her condition prevented her from becoming gainfully employed. A psychiatric expert opined that Mrs. Brashier was not functioning at a level that would allow her to perform adequately in an employment situation. Following the hearing, the master recommended that the divorce order be modified to award Mrs. Brashier indefinite alimony of $300 per month.

The circuit court adopted the master’s recommendations. On appeal, this Court affirmed the order of the circuit court modifying the decree and awarding Mrs. Brashier indefinite alimony. We explained: [T]he master found significant Mrs. Brashier’s lack of improvement since the divorce. That fact is critical considering that the trial court’s previous award of temporary alimony to Mrs. Brashier was made with the expectation that she would improve.

Had that been the case, Mrs. Brashier might have become self-sufficient. Unfortunately, that circumstance never occurred. We therefore reject Mr. Brashier’s contention that since the evidence presented at the modification hearing ⁶⁶⁶ was, as the master conceded “much the same” as that presented at the divorce trial, there was no change justifying an extension of alimony payments to Mrs. Brashier. The “change” involved here is one of expectation concerning Mrs. Brashier’s prognosis for recovery.

Notwithstanding that most of the adverse conditions noted by the master either existed at the time of the divorce or were then anticipated, Mrs. Brashier’s continued inability to alleviate these conditions was not anticipated. ****** We find no abuse of discretion in the trial court’s grant of indefinite alimony in view of Mrs. Brashier’s continued psychiatric disability and the hindrance it has been in her effort to become self-sufficient. 80 Md.App. at 100-01 , 560 A.2d 44 . Finally we point out that contrary to the contention of the majority, Thomasian v. Thomasian, 79 Md.App. 188, 556 A.2d 675 (1989), does not preclude the chancellor from awarding rehabilitative alimony and reserving judgment on the award of indefinite alimony. In Thomasian we held that rehabilitative alimony could not be awarded in lieu of proof of entitlement to indefinite alimony pending a decision of the dependent spouse’s employability and ability to become self-supporting during the term of rehabilitative alimony. The domestic relations master in Thomasian determined that Mrs. Thomasian had an eye condition that rendered her unemployable in her field and that there was no evidence of her employability in any other field.

The master recommended, therefore, that Mrs. Thomasian receive indefinite alimony in the amount of $2350 per month. The trial court, on the other hand, characterized the testimony concerning Mrs. Thomasian’s vision problems as “inconclusive.” It ordered, however, five years of rehabilitative alimony and stated that whether Mrs. Thomasian could make progress toward being self-supporting could be answered during that time period. We reversed and explained: ⁶⁶⁷ Although § ll-107(a) provides a mechanism whereby the period of rehabilitative alimony may be extended, it contemplates 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.

The trial judge did not cite any authority permitting him to structure the award as he did, and we know of none____ The matter must be remanded for further proceedings, specifically, for a determination of whether, at this time, Mrs. Thomasian is entitled to indefinite alimony. 79 Md.App. at 195-96 , 556 A.2d 675 . (Footnote omitted) (Emphasis supplied). The error committed by the chancellor in Thomasian was to award rehabilitative alimony after the chancellor had already determined that the evidence was “inconclusive.” A chancellor may not award rehabilitative alimony when a party is not entitled to it just so that the chancellor can “wait and see” whether the party will later be entitled to indefinite alimony. Where the evidence currently does not support an award of indefinite alimony, but the chancellor believes such an award may be proper in the future, the appropriate course of action is for the chancellor to reserve judgment on the award of indefinite alimony.

Where an award of rehabilitative alimony is justified, Thomasian does not prohibit the chancellor from awarding rehabilitative alimony and reserving judgment on the issue of indefinite alimony. Based on the foregoing, I would reverse on the first issue; however, I concur with the disposition of the other three issues. CATHELL, Judge. Appellant, Rose A. Coviello, and appellee, John W. Coviello, were married in 1980.

Each had been previously married and had children from their former marriages. Prior to their marriage, they each owned homes and were employed. Upon their marriage, appellant moved into appellee’s home (hereinafter Lerner home), resigned from her employment and became a full-time homemaker. She subsequently sold the house she had owned prior to her marriage.

Appellant’s daughter, Teresa, then 18, joined her mother and moved into appellee’s house paying rent of $20 per week. This rent was collected by appellant for approximately five years. 1 Appellant and appellee later moved into a new home (hereinafter the Lakeland home) leaving appel ⁶⁴¹ lant’s daughter at the Lerner home. Teresa’s rent was increased to cover the amount of the mortgage payment on the older home. Two years later, Teresa purchased that home from appellee.

Some three years after they moved to the Lakeland home, the relations between the parties had deteriorated to the point where they became estranged. Subsequently, appellant filed for divorce on December 22,1988. As the reasons for this divorce, and the granting of it are not at issue, we shall not address them. There were numerous pleadings and pendente lite orders which also are not at issue in the appeal.

Ultimately, the trial court granted a final divorce to appellee on his cross-complaint for divorce and further decreed, in part, as follows: It is further ORDERED that the Defendant pay alimony in the amount of $1,500.00 per month to the Plaintiff for eighteen (18) months from the date of this Order. It is further ORDERED that eighteen (18) months from the date of this Order the amount of alimony shall be reduced to $700.00 per month and that the Defendant pay alimony of $700.00 per month for an indefinite period to terminate only on the death of either party, the remarriage of the Plaintiff or on further Order of this Court. ****** It is further ORDERED that the jointly owned marital property be sold and the proceeds of the sales be equally divided. It is further ORDERED that the Defendant pay a monetary award of $32,426.44 to the Plaintiff to be due at the time of the sale of the Lakeland Drive home. ****** It is further ORDERED that the Plaintiff’s request for attorney’s fees be and is hereby DENIED. At the time of his order, the trial court also rendered a “Memorandum Opinion” which we will later address. ⁶⁴² Neither party was satisfied with the trial court’s decision.

Rose Coviello appealed and John cross-appealed. Appellant presents us with four questions: 1. After determining that an award of indefinite alimony is appropriate on a finding that an unconscionable disparity will exist in the parties standard of living, has the trial judge erred in establishing an in futuro reduction in the amount? 2. Did the trial judge err in his determination of the value of marital property by making a deduction from the fair market value of real estate to reflect anticipated sales commission? 3.

Did the trial judge erroneously characterize rental receipts as marital property when the weight of the evidence indicated that the funds did not exist at the time of trial? 4. Did the trial court err in refusing to grant Mrs. Coviello’s request for attorney’s fees? In his cross-appeal, appellee asks: Did the trial court abuse its discretion in awarding indefinite alimony? We shall address their questions seriatim though we shall rephrase them, as is necessary, to correctly conform with the trial court’s Order and Memorandum Opinion.

I May the trial court award both indefinite and rehabilitative alimony? As can be seen from our rephrasing of it, appellant’s first question does not accurately reflect the action that the trial court took in rendering its decision on alimony. 2 ⁶⁴³ The trial court, in its Memorandum Opinion, discussed at some length the relative premarital and marital incomes of the parties and their abilities to earn income after the marriage. It then opined as to relevant matters that had to be considered in making alimony determinations, saying: Before awarding alimony, the Court must consider Mrs. Coviello’s potential to be self-supporting and the time necessary for her to train for suitable employment. Md.Fam.Law Code Ann. § 11-106____ Mrs. Coviello is not currently self-supporting.

Her medical problems make sedentary office work or sales her most realistic employment options. These jobs do not require extensive training____ The Court finds that Mrs. Coviello should be able to obtain suitable employment within the next eighteen (18) months. The Court further finds that after Mrs. Coviello becomes employed, she will not be able to close the gap between the parties’ earning capacities. The parties’ standards of living will be unconscionably disparate.

To alleviate the disparity, the Court will continue her alimony____[at] $700.00 per month. [Emphasis added.] The court, in its Memorandum Opinion and the order based upon it, granted alimony of $1,500 per month for a period of 18 months. Then, finding that even if she fully rehabilitated herself the standards of living between the parties would still be unconscionably disparate, the court ordered that permanent alimony continue in the amount of $700 per month. The trial court’s initial award was $700 per month indefinite alimony with an additional $800 per month for 18 months for rehabilitative purposes. The reduction was established initially — it was not an in futuro order.

It was not a reduction in indefinite alimony but a proper termination of rehabilitative alimony which reduced the total alimony. Such terminations of rehabilitative alimony are contemplated, if not required, by the statute. Therefore, the question for us, as we have said, is may a trial court decree what we shall describe as compound alimony, i.e., ⁶⁴⁴ rehabilitative alimony for a specified period with indefinite alimony continuing thereafter? We hold that it may and explain.

The Maryland Annotated Code, Family Law Article section 11-106 (1991), provides in pertinent part: (a) Court to make determination. — (1) The court shall determine the amount of and the period for an award of alimony. [Emphasis added.] The court is required to consider certain factors that include: (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____ ****** (c) ... The court may award alimony for an indefinite period, if the court finds that: ****** (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. [Emphasis added.] The trial court’s order in the case at bar fully comports with the requirements of section 11-106 and is an especially effective compliance fully within, not only thé letter of the law, but its spirit as well. In Rock v. Rock, 86 Md.App. 598, 609 , 587 A.2d 1133 (1991), we said, “Indefinite support may be warranted where ... rehabilitative spousal support for a limited period of time would result in gross inequity.” (Citation omitted.) Judge Bell, for us, discussed the plethora of cases involving the award of alimony on disparity grounds and those where it had not been awarded. See Turrisi v. Sanzaro, 308 Md. 515 , 520 A.2d 1080 (1987); Melrod v. Melrod, 83 Md.App. 180 , 574 A.2d 1 , cert. denied, 321 Md. 67 , 580 A.2d 1077 ⁶⁴⁵ (1990); Broseus v. Broseus, 82 Md.App. 183 , 570 A.2d 874 (1990); Rogers v. Rogers, 80 Md.App. 575 , 565 A.2d 361 (1989); Bricker v. Bricker, 78 Md.App. 570 , 554 A.2d 444 (1989); Wassif v. Wassif, 77 Md.App. 750 , 551 A.2d 935 , cert. denied, 315 Md. 692 , 556 A.2d 674 (1989); Benkin v. Benkin, 71 Md.App. 191 , 524 A.2d 789 (1987); Green v. Green, 64 Md.App. 122 , 494 A.2d 721 (1985); Zorich v. Zorich, 63 Md.App. 710 , 493 A.2d 1096 (1985); Holston v. Holston, 58 Md.App. 308 , 473 A.2d 459 , cert. denied, 300 Md. 484 , 479 A.2d 372 (1984).

We said in Rock: “Our approval or denial of these awards clearly indicate the importance we place upon the judgment and discretion of the fact finder____” 86 Md.App. at 612 , 587 A.2d 1133 (emphasis added). Throughout our present review, we shall be especially mindful of this importance. This Court discussed in Holston the change in emphasis that occurred as a result of the enactment of Chapter 575 of the Acts of 1980. We stated: “Under the present statute, the principal function of alimony is rehabilitation.” 58 Md.App. at 321 , 473 A.2d 459 .

The trial court in Holston had ordered only temporary alimony for three years. We upheld the award of temporary alimony but held that “because the evidence leaves no doubt that the award of alimony for a limited period of time will leave Mrs. Holston at the end of that period with a standard of living greatly ... unconscionably disparate, ... the chancellor’s failure to award indefinite alimony was a clear abuse of his discretion.” Holston, 58 Md.App. at 324 , 473 A.2d 459 (emphasis added). We noted: “The legislature recognized ... that in some circumstances it may be impractical to expect a dependent spouse to become self-supporting through further education or job training.” Id. at 321 , 473 A.2d 459 . This Court said in Melrod : Nevertheless, in view of the great disparity in wealth between the parties, it is obvious that no matter how much rehabilitative alimony Mrs. Melrod receives and how much progress it will enable her to make toward ⁶⁴⁶ becoming self-supporting, the respective standards of living of the parties will be greatly disparate.

Even taking all of that into account, however, unless a revised monetary award will provide Mrs. Melrod with a great deal of income, the disparity in income and, therefore, standards of living, will be far greater than we held to be unconscionable____ 83 Md.App. at 196 , 574 A.2d 1 (citations omitted). Thus, in Melrod , we recognized the foreseeability of both rehabilitative and indefinite awards of alimony when the evidence supports a finding that even with maximum rehabilitation, an unconscionable disparity will continue to exist. See also Broseus, 82 Md.App. at 196 , 570 A.2d 874 , where we recognized that so long as supported by the evidence, consideration could be given to the future status of the parties in awarding alimony: “In assessing the weight to be given to the different income levels of the parties, the chancellor must determine whether that disparity will change and if so to what extent.” (Emphasis added.) We said in Rogers v. Rogers, 80 Md.App. 575, 591 , 565 A.2d 361 (1989): “When the dependant spouse reaches the limit of his or her earning capacity and is still living at an unconscionably disparate level, alimony may be awarded indefinitely in an effort to alleviate this imbalance.” In Riley v. Riley, 82 Md.App. 400, 406 , 571 A.2d 1261 (1990), we opined on the nature of alimony under the current statute, saying that “[although ... present and past circumstances must be taken into account ... the principal focus is really on the future: what will the needs of the spouse ... be upon dissolution of the marriage; what other resources will that spouse have available to meet those needs____” In the case sub judice, the trial court determined the appellant’s present needs, her need for additional rehabilitative alimony for the stated period and her subsequent future need for indefinite alimony after she had achieved full rehabilitation. Judge Wilner, now Chief Judge, pointed out in Riley , that alimony concerns future needs.

Id. at 406 , 571 A.2d 1261 . Thus addressing those ⁶⁴⁷ future needs, at a present time, is the essence of the process. By making a present decision that appellant’s standard of living, even after maximum rehabilitation, would remain unconscionably disparate, Judge Arnold, in the present case, avoided the problems encountered in Thomasian v. Thomasian, 79 Md.App. 188 , 556 A.2d 675 (1989). In Thomasian , the trial judge awarded rehabilitative alimony for five years stating that “[t]he question of whether or not the plaintiff can make progress toward being self-supporting can be answered during that time period.” Id. at 193 , 556 A.2d 675 .

We described the situation in Thomasian as “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.” 79 Md.App. at 195 , 556 A.2d 675 . We reversed in Thomasian , holding that the matter needed to be remanded in order for the trial judge to determine whether at that time Mrs. Thomasian was entitled to indefinite alimony. Id. at 196 , 556 A.2d 675 . In the case at bar, the trial court determined that appellant needed 18 months to become employed to her maximum, but even