Crabill v. Crabill

HARRELL, Judge. Appellant, Donald Anderson Crabill, filed a Complaint for Absolute Divorce in the Circuit Court for Montgomery County on or about 22 December 1995 alleging voluntary separation. On 8 February 1996 appellee, Geraldine Mae Crabill, filed a Counterclaim for Absolute Divorce alleging constructive desertion and requesting indefinite alimony. Domestic Relations Master Mahaffey (“master”) held a hearing on 5 August 1996.

The master issued her Report and Recommendations on 22 October 1996. The master imputed to Mr. Crabill a monthly income of $1,458.33, in addition to his retirement income, based on evidence that Mr. Crabill had the experience and ability to continue working as a house painter. Although no monetary award was made, the master found that Mr. Crabill should pay $1,000.00 per month in indefinite alimony. Both parties filed exceptions.

After a hearing on 4 February 1997, the Circuit Court for Montgomery County (Weinstein, J.) issued an Opinion and Order. The circuit court reduced the amount of income imputed to Mr. Crabill to $933.33 per month and reduced the indefinite alimony to be paid to Mrs. Crabill to $631.93 per month. The court did not impute income to Mrs. Crabill because it concluded that, although Mrs. Crabill could earn more as a paralegal, the special needs of the Crabills’ daughter, Nadine, would be better served if Mrs. Crabill maintained her current employment. This timely appeal followed. ²⁵³ ISSUES Mr. Crabill presents the following issues for our review, which we have rephrased: I. Did the circuit court err in imputing income to Mr. Crabill?

II

Did the circuit court err in determining the amount of income imputed to Mr. Crabill?

III

Did the circuit court err in not imputing income to Mrs. Crabill?

IV

In determining the amount of alimony to award Mrs. Crabill, did the circuit court err in trying to equalize the parties’ income? FACTS Mr. and Mrs. Crabill were married on 12 May 1978 in Kensington, Maryland. They had two children, Nadine (born 2 January 1979) and Elizabeth (born 3 December 1980). The parties initially separated in April 1994, but reconciled approximately six months later.

Mr. Crabill, a recovering alcoholic, completed an educational program on domestic violence and attended therapy as part of the reconciliation attempt. Nevertheless, on 25 January 1995, the parties again separated. At the master’s hearing on 5 August 1996, Mrs. Crabill testified that the parties’ oldest child, Nadine, suffers from emotional problems, is under the care of several doctors, and is on medication. Mrs. Crabill, who was 49 years old at the time of the master’s hearing, works full-time as a secretary at Our Lady of Mercy Catholic Church at an annual salary of $21,763.22 ($1,813.61 per month).

She works a flex-time schedule, allowing her to leave the premises or reschedule her work day whenever necessary so that she may care for Nadine. Mrs. Crabill testified that she recently had to take a week off, without advance notice to her employer, to care for Nadine after Nadine attempted suicide. Mrs. Crabill is a qualified paralegal and has held higher paying jobs in the past as a paralegal and as a personnel officer. ²⁵⁴ Mr. Crabill, who was 53 years old at the time of this appeal, retired voluntarily from the District of Columbia Fire Department on 28 February 1995. Mr. Crabill testified at the master’s hearing that he receives gross retirement income of $54,744.00 per year.

Under the terms of a stipulated division of Mr. Crabill’s pension, Mrs. Crabill receives 50% of the marital portion of Mr. Crabill’s retirement, or $1,208.93 per month. Mr. Crabill receives $3,353.07 per month. Mr. Crabill testified that he contributed $72,000.00 towards the purchase of the marital home in 1979. The house, according to appellant, has been refinanced three times since 1979 to pay off marital debt.

The mortgage, originally $62,000.00, increased to more than $200,000.00. At the time of the master’s hearing, Mr. Crabill had been paying the $1,727.00 per month mortgage payment pursuant to a court order of 8 March 1996. While the parties were married, Mr. Crabill also worked part-time for his brother, who operates a contracting and painting business. In the four years previous to this case, Mr. Crabill testified that he earned an average of $4,800.00 annually from part-time painting.

Mr. Crabill testified at the master’s hearing, however, that he had had a falling out with his brother and had not worked with him for four or five months previous to the hearing. In addition, Mr. Crabill testified that he was not bonded as a contractor, did not advertise, and owned no painting equipment. Mrs. Crabill called an expert witness, a vocational rehabilitation counselor, to testify at the master’s hearing regarding Mr. Crabill’s earning potential as a house painter. The expert testified that entry level painters can earn approximately $10.00 per hour, while more experienced painters or contractors can earn up to $25.00 per hour.

The expert witness testified that a painter would be paid approximately $250.00 to paint an average size room in a house. Mr. Crabill disagreed with the expert’s estimate, stating that a painter would probably receive between $100.00 and $125.00 for painting one room. ²⁵⁵ On 22 October 1996 the master issued her report and recommendations. 1 The master found that the circumstances of the parties’ separation justified granting Mrs. Crabill a Judgment of Absolute Divorce on the ground of constructive desertion. With respect to Mr. Crabill’s income, the master found that Mr. Crabill’s painting income averaged $4,800.00 a year for the past four years and that he earned $7,000.00 in 1995, the year of his retirement. Regarding Mr. Crabill’s possible future earnings, the master made the following finding: The Plaintiff [Mr. Crabill] is a young man, and despite his recovery situation, the Master finds that he is capable of working, and should work at this time to contribute to the family needs.

It is not clear exactly what the Plaintiff can immediately earn. The Master finds that the Plaintiff should be capable of earning a minimum of $10.00 per hour for 35 hours per week for 50 weeks per year, or $1,458.33 per month. The master determined that Mr. Crabill’s total monthly income was $4,811.40 ($3,353.07 from retirement pay and $1,458.33 from painting) and Mrs. Crabill’s total monthly income was $3,022.54 ($1,813.61 from earnings and $1,208.93 from her share of Mr. Crabill’s retirement). The master found that the parties did not live within their income during the marriage, noting that $155,000.00 in equity had been removed from the family home and that the parties’ stated after-tax needs would require a gross combined taxable income of at least $150,000.00 per year.

The court stated that, even if Mr. Crabill’s painting income doubled, the family would not be able to meet expenses. With respect to alimony, the master found that Mrs. Crabill was not able to be wholly self-supporting at the time of the ²⁵⁶ hearing and awarded Mrs. Crabill $1,000.00 per month of indefinite alimony. Although the master found that, based on her qualifications, Mrs. Crabill may be able to obtain higher paying employment in the future if her family responsibilities diminish, the master found that Mrs. Crabill’s current employment was suitable. The master did not speculate as to when Mrs. Crabill would be fully self-supporting.

Because the parties lived to a standard beyond their income during the marriage, the master did not find standard of living a governing factor in awarding Mrs. Crabill alimony. The master also found that during the eighteen-year marriage, each party contributed monetarily and nonmonetarily to the well-being of the family. With regard to the circumstances leading to the estrangement of the parties, the master found that Mr. Crabill’s alcoholism and abuse appeared to have been the primary contributing factors. The master found that Mr. Crabill, who was 53 years old at the time of the hearing, appeared to be in good physical and mental health and had been in recovery from alcoholism for four and one half years.

Mrs. Crabill, who was 49 years old at the time of the hearing, was also found to be in good physical and mental health, although under a great deal of stress due to Nadine’s problems. The master considered the financial needs and resources of the parties and found that Mr. Crabill would be able to meet his needs while making the recommended alimony payments. The master concluded that Mrs. Crabill has made as much progress toward becoming self-supporting as can reasonably be expected at this time and for the foreseeable future, and that the respective standards of living of the parties will be unconscionably disparate without the award of indefinite alimony. Indefinite alimony will allow the situation to be adjusted in the future, should the parties’ respective situations change.

Both parties filed exceptions. 2 Mr. Crabill excepted to the master’s recommendation that he pay Mrs. Crabill $1,000.00 ²⁵⁷ per month in alimony, claiming that there was insufficient disparity of income to warrant alimony. Mr. Crabill also asserted that if he were required to pay $1,000.00 per month, he would not be able to support himself. Mr. Crabill further claimed that the master erred in imputing $17,500.00 additional annual income to him because it was inappropriate to require Mr. Crabill, a retiree, to pursue a new career. He also excepted to the master’s failure to impute additional income to Mrs. Crabill, arguing that Mrs. Crabill is not working up to her maximum ability. 3 On 4 February 1997 the Circuit Court for Montgomery County (Weinstein, J.) issued an opinion and order affirming in part and modifying in part the master’s report and recommendations and remanded the case for a determination of two issues not pertinent to this appeal.

Regarding the income imputed to Mr. Crabill, the court affirmed the master’s recommendation to impute income, but modified the amount. The court found the expert vocational witness’s analysis flawed because Mr. Crabill, unlike the painters the expert interviewed, is not bonded, does not advertise, and has little overhead. The court noted that painters’ work is often seasonal and reasoned that Mr. Crabill may be unemployed for as much as three months of the year. The court then imputed an income of $11,200.00 annually, from earning $7.00 per hour, 8 hours per day, for 40 weeks each year.

The court concluded that imputing $933.33 per month, instead of $1,481.00 per month, was more realistic and fair. In determining alimony, the court concurred with the master that equity in this case demanded an award of indefinite alimony, but disagreed with the amount recommended by the master. Because the court reduced the amount of income imputed to Mr. Crabill, it also reduced the amount of alimony. The court modified the alimony award to $631.93 per month. ²⁵⁸ In adopting the master’s recommendation to grant alimony, the court considered the folio-wing factors and made findings according to Md.Code (1984, 1991 Repl.Vol., 1997 Supp.), § 11-106 of the Family Law Article (hereinafter FL § 11-106): 1) Ability of the party seeking alimony to be wholly or partly self-supporting Geraldine Crabill has the responsibility of caring for Nadine, someone who needs constant attention.

Though she has earned higher salaries as a paralegal in the past, she needs the flexibility her current job provides to properly care for Nadine. 2) Time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment Geraldine Crabill is trained as a paralegal but, again, her commitment to Nadine inhibits her from working at a job that does not permit flex time. 3) Standard of living that the parties established during the marriage The Court did not consider this as a relevant factor as the parties lived beyond their means. 4) Duration of the Marriage The parties were married for approximately 18 years. 5) Contributions, monetary and nonmonetary, of each party of the well being of the family Both parties contributed significantly to the marriage. 6) Circumstances that contributed to the estrangement of the marriage The estrangement stems primarily from the husband’s alcoholism and verbal attacks. 7) Age of the parties Donald Crabill is fifty three (53) years old and Geraldine Crabill is forty nine (49) years old. 8) Physical and mental condition of the parties Both parties appear fit. ²⁵⁹ 9) Ability of the party of whom alimony is sought to meet the party’s own needs while meeting the needs of the party seeking alimony Donald Crabill is currently living in a rented apartment for $300 a month. His economic status should improve when he actively seeks employment as a painter. 10) Any agreement of the parties Donald Crabill was paying for Elizabeth’s private schooling but that agreement has ended. 11) Financial needs and financial resources of each party; income, monetary award, financial obligations of the party and retirement benefits Geraldine Crabill earns $1,813.61 per month and receives $1,208.93 of Mr. Crabill’s retirement benefits equaling $3,022.54. Donald Crabill retains the remainder of the retirement benefit, $3,353.07, and imputed income of $933.33 per month. Monthly alimony is $631.93, derived by factoring in Donald Crabill’s pension subtracted by Geraldine Crabill’s share of that pension equals $3,353.07.

Add Mr. Crabill’s imputed income of $933.33 per month to $3,353.07 for a total of $4,286.40. Subtract Geraldine Crabill’s $3,022.54 from Donald Crabill’s $4,286.40 for a difference of $1,263.96. This was divided by two (2), a total of $631.93 per month. This amount provides identical incomes and ensures no unconscionable disparity remains.

Regarding Mr. Crabill’s contention that Mrs. Crabill was not working to her maximum ability, the court found that Mrs. Crabill’s current position allows her the flexibility needed to care for Nadine. The court pointed to two benefits of Mrs. Crabill’s position at Our Lady of Mercy: it provides an income and it allows Mrs. Crabill to leave at a moment’s notice to care for Nadine. The court concluded that although Mrs. Crabill has the ability to earn more as a paralegal, the monetary gain would be detrimental to the children. ²⁶⁰ DISCUSSION The award of alimony is governed by FL § 11-106. The purpose of the alimony statute is to provide trial courts with the ability to ensure “an appropriate degree of spousal support ... after the dissolution of a marriage.” Tracey v. Tracey, 328 Md. 380, 388 , 614 A.2d 590 (1992).

An alimony award will not be disturbed on appeal unless the trial court abused its discretion or rendered a judgment that was clearly wrong. Tracey, 328 Md. at 385 , 614 A.2d 590 ; Brodak v. Brodak, 294 Md. 10, 28-9 , 447 A.2d 847 (1982). As this court has stated, “ ‘Appellate discipline mandates that, absent a clear abuse of discretion, a chancellor’s decision that is grounded in law and based upon facts that are not clearly erroneous will not be disturbed.’” Kierein v. Kierein, 115 Md.App. 448, 452 , 693 A.2d 1157 (1997) (quoting Bagley v. Bagley, 98 Md.App. 18, 31-32 , 632