Francz v. Francz

DEBORAH S. EYLER, J. By Judgment of Absolute Divorce entered on October 18, 2000, the Circuit Court for Frederick County directed Steven G. Francz (“Steven”), the appellant, to pay Deborah J. Francz (“Deborah”), the appellee, rehabilitative alimony of $1,400 per month for 23 months, effective October 1, 2000, through August 31, 2002, and ruled that “the issue of indefinite alimony is hereby reserved for later determination.” On September 10, 2002, Deborah filed a “Petition to Establish Indefinite Alimony.” The court granted the petition and entered an order directing Steven to pay Deborah $1,000 per month in indefinite alimony. Steven challenges that decision on appeal. For the following reasons, we shall vacate the court’s order and remand the case for further proceedings not inconsistent with this opinion. ⁶⁸⁰ FACTS AND PROCEEDINGS Steven and Deborah were married on September 2, 1978. Steven had graduated from high school and completed some night school college classes.

Deborah had graduated from high school and completed two years of college. The parties’ marriage produced two children: Cherise, born on August 31,1984, and Lindi, born on April 21, 1986. During the marriage, Steven and Deborah lived in Frederick County and maintained a modest lifestyle. Deborah stayed at home, caring for the parties’ children, until the 1990’s, when she started working part time in clerical jobs.

Steven worked as a computer hardware engineer. The parties separated on February 4, 1998. They each were 40 years old. Steven moved out of the marital home, and Deborah stayed there, with the children, who were then 13 and 11 years of age.

On May 13, 1999, in the Circuit Court for Frederick County, Steven filed a complaint for absolute divorce on the ground of adultery. Deborah responded by filing a countercomplaint for absolute divorce, also on the ground of adultery. For the rest of that year, the parties waged battle on every front. Eventually, they reached an agreement for joint legal custody of the children, with physical custody in Deborah and visitation for Steven.

All other issues, including Deborah’s request for alimony, went to a merits trial, which began on February 1, 2000. The trial continued for two additional days that month; two days in May 2000; two days in August 2000; and three days in September 2000. The court then took the case under advisement. On September 29, 2000, the trial court reconvened and the judge ruled from the bench on all issues.

After finding that each party had committed adultery after the separation, the court granted Steven a divorce on that ground, because he had ⁶⁸¹ filed his complaint first. 1 The trial judge then turned to the issue of alimony, and, addressing the factors set forth in Md.Code (1999 RepLVol.), section 11-106(b) of the Family Law Article (“FL”), made the following findings. At the time of trial, the parties were 42 years old and in good health. 2 Steven was employed by Visual Networks, Inc., and was earning $96,000 per year, with the possibility of earning a bonus of between $5,000 and $10,000. Deborah was earning $6,000 per year working part time at a gym and at a WalMart store. She did not have any health problems that interfered with her ability to hold full-time employment.

The trial judge found that she had the present ability to earn $12,000 per year, and imputed that amount of income to her. Crediting the opinion of a vocational rehabilitation expert who testified at trial, the trial judge found that, if Deborah attended courses at Frederick Community College (“FCC”), she would within a two-year period be able to obtain a job paying $25,000 to $30,000 per year. The trial judge further credited the expert’s opinion that Deborah could “secure[ ] the necessary education for her rehabilitation through Frederick Community College” while working full time and earning $12,000 per year, and at a cost of no more than $4,500. The trial judge found that the marriage had lasted 22 years, including the two-year separation; that the reasons for the break-up of the marriage were “neutral”; that Deborah would have use and possession of the marital home through June 2001; that unless the parties agreed otherwise the house then would be sold and the proceeds, estimated at $30,000, would ⁶⁸² be equally divided; that Steven’s 401 (k) retirement fund would be equally divided, by means of a Qualified Domestic Relations Order (“QDRO”); that Steven did not have debt and Deborah did have credit card debt; that the parties contributed equally to the marriage; and that the parties had virtually no assets other than the equity in their house.

After considering the findings on these factors, the trial judge ruled: [Deborah] is awarded definite rehabilitative alimony. It’s in the amount of $1,400 per month. That commences October 1st, 2000 and goes through August 31st, 2002. That is one month short of the two years.

That takes into consideration my finding of her ability to earn at least a thousand dollars per month on her own even while upgrading her education and attending Frederick Community College. I also find, however, that the standard of living ... [Steven’s] earning $96,000 per year and her earning approximately $27,500, which is the midway between the testimony of the ... vocational rehabilitation expert testified earlier, would be unconscionably disparate. Therefore, I am reserving on the issue of indefinite alimony. I’m doing that because you can’t fix a number at this time.

When the rehabilitative alimony expires, if the parties utilize or follow the order, the house will have been sold. Her housing expense may be greater or it may be less. They’ll have whatever equities are from that, and I believe that the one child will have reached the age of 18 by that date or very close to the age of 18 by the conclusion of the alimony. On October 17, 2000, the court issued a “Judgment for Absolute Divorce,” entered the next day, memorializing its oral ruling.

With respect to alimony, the judgment stated: ORDERED that effective October 1, 2000, and terminating on August 31, 2002, [Steven] shall pay to [Deborah] the sum of One Thousand Four Hundred Dollars ($1,400.00) per month for rehabilitative alimony; and it is further ORDERED that the issue of indefinite alimony is hereby reserved for later determination. ⁶⁸³ The court did not make a monetary award. It granted Deborah $1,540 per month for child support, in accordance with the Maryland guidelines; and ordered Steven to pay $10,000 of Deborah’s attorneys’ fees and an outstanding $800 therapy bill for the children. On September 10, 2002, ten days after the 23-month rehabilitative alimony award expired, Deborah filed a “Petition To Establish Indefinite Alimony” (“petition”). She alleged that she had obtained full-time employment at a $9.00 hourly wage; that Steven was earning at least $96,000 a year; and that she had “made as much progress toward becoming self-supporting as reasonably could be expected,” but the parties’ standards of living nevertheless were “still unconscionably disparate.” Steven filed a motion to dismiss the petition, on the ground that Deborah had not alleged a change in circumstances that would produce a harsh and inequitable result, as necessary to support a motion to extend alimony, under FL section 11-107(a) and Blaine v. Blaine, 336 Md. 49 , 646 A.2d 413 (1994); and on the ground of improper service of process.

The motion was denied without a hearing, on October 28, 2002. Steven then filed an opposition to the petition. On May 1, 2003, the motion court held an evidentiary hearing on the petition. 3 Steven and Deborah testified and numerous documents were moved into evidence. The motion court held the matter sub curia.

In a written memorandum opinion and order dated July 24, 2003, and entered the next day, the motion court granted Deborah’s petition and ordered Steven to pay $1,000 per month in indefinite alimony, commencing as of the date of filing (September 10, 2002). In a section of its opinion entitled “Findings of Fact,” the motion court recited the procedural ⁶⁸⁴ history of the case and the factual findings made by the trial judge on September 29, 2000, after the merits trial. Although not included under that same heading in its opinion, the motion court made factual findings about events that had transpired between October 2000 and May 1, 2008. During that time, Deborah made one telephone call to FCC, about financial aid, for which she was not qualified.

Otherwise, she took no steps to attend FCC or any other college or educational program or course. Deborah attended two job seminars and claimed to have applied for many jobs. She could not produce any documents to support her testimony about job applications, however. The motion court found that Deborah had “failed to avail herself of the resources available at FCC, Job Training Agency, or any other employment services.” Deborah’s work history from the time of the divorce to the time of the evidentiary hearing on the petition was as follows.

From October 2000 to November 2001, notwithstanding that she had been found capable of working full time and earning $12,000 per year, Deborah continued to work part time in the same jobs (at a gym and at a WalMart). From November 2001 to August 2002, she stopped working altogether. In August 2002, a few weeks before the rehabilitative alimony payments ended, she took a job working full time as a cashier at a Honda Dealership. At first, she was paid $9.00 per hour; by the time of the hearing, she was earning $9:50 per hour, which comes to $19,760 per year.

The marital home had been sold and the proceeds divided. Deborah claimed that she spent her share of the proceeds to pay lawyer’s fees. Yet, she filed for bankruptcy in February 2001 and all her debts, including her lawyer’s fees, were discharged in that proceeding. She liquidated her share of Steven’s 401K account and used the funds to repay loans she claimed to have received from friends and family members.

She could not produce any documentary evidence of the loans, however. The motion court found that Deborah “ha[d] not made efforts to rehabilitate herself during the period in which she ⁶⁸⁵ was receiving rehabilitative alimony” and “ha[d] not done her part in equity.” It further found that Deborah did not have any medical problems that interfered with her ability to work full time. 4 Steven still was working in the technology industry. He had changed employers, however, and was earning $109,000 per year. After addressing the facts, the motion court turned to the issue of the proper legal standard to apply in deciding Deborah’s petition.

It concluded that the petition was not a motion to extend alimony, under FL section ll-107(a), because the trial judge, in his oral ruling on September 29, 2000, had found that, even after Deborah would have reached her maximum projected income upon educational rehabilitation, there would be an unconscionable disparity in the parties’ standards of living, and then reserved on the issue of indefinite alimony only because he could not determine the proper amount of indefinite alimony. The motion court further concluded that this ruling constituted a decision to grant indefinite alimony, and a reservation only on the proper amount of indefinite alimony: The issue of indefinite alimony was decided at the divorce hearing 3 years ago. That matter is res judicata, and the court should not review any change in circumstances in determining whether to award indefinite alimony. Rather, the court should review the current circumstances in determining what indefinite alimony is appropriate, its necessity having been determined at the time of the divorce. ⁶⁸⁶ The motion court went on to state: “The determination of whether to award indefinite alimony having been made at the time of the divorce, the remaining determination is what alimony to award.” It decided that, based on the evidence presented at the merits trial in 2000 that, by 2002, after attending classes at FCC, Deborah would be able to obtain a job paying $27,500 per year, and the evidence presented in 2002 that Steven was earning $109,000 per year, that $1,000 per month was an appropriate amount of indefinite alimony.

Steven filed a timely notice of appeal. We have combined and reworded his questions presented, as follows: I. Did the circuit court err in denying his motion to dismiss on the basis of lack of personal jurisdiction?

II

Did the circuit court err in ruling that a decision to award indefinite alimony was made in 2000 and was res judicata; that Deborah therefore could be awarded indefinite alimony without showing a change in circumstances; and that the court’s function in ruling on Deborah’s 2002 petition merely was to set the proper amount of indefinite alimony? We shall include additional facts in our discussion, as necessary. DISCUSSION I. Personal Jurisdiction As stated above, the Judgment of Absolute Divorce was entered on October 18, 2000. Neither party filed a notice of appeal.

In late 2000 and early 2001, there were some post-judgment proceedings concerning the QDRO payments on the mortgage on the family home, and child support. On March 5, 2001, a docket entry was made stating, “No Pro Se Parties when Case Closed.” (There is no prior entry stating that the case was closed). About 18 months later, on August 12, 2002, docket entries were made stating, “Attorney ⁶⁸⁷ Appearance Terminated,” for each attorney, listed individually, who at one time had entered an appearance in the case. That included Steven’s attorney-of-record (“Steven’s attorney”) at the time of the merits trial.

Apparently, the appearances were stricken pursuant to Rule 2-182(d), which provides: “When no appeal has been taken from a final judgment, the appearance of an attorney is automatically terminated upon the expiration of the appeal period unless the court, on its own initiative or on motion filed prior to the automatic termination, orders otherwise.” Deborah filed her petition three weeks later, on September 10, 2002. She sent it by first class mail to Steven’s attorney. There is no dispute that Steven’s attorney received the petition in the mail. On October 4, 2002, Steven, by that same attorney, filed a motion to dismiss, on a number of grounds, one of which was “[t]hat [Deborah] failed to follow proper rules of procedure in the service of her Petition.” In a supporting memorandum of law, citing Rule 2-121, Steven argued that his attorney’s appearance had been stricken, in conformity with Rule 2-132(d), and therefore it was necessary for Deborah to personally serve him with the petition.

Because she did not personally serve him, but instead mailed the petition to his former (but by then again present) lawyer, service was improper. Steven filed a separate request for a hearing on his motion to dismiss. Deborah timely responded to the motion to dismiss, but her opposition did not address the issue of service of process. On October 24, 2002, the court issued an order denying the motion to dismiss.

(The order never was entered in the docket.) On November 21, 2002, Steven filed an answer to the petition. On appeal, Steven contends that the motion court lacked personal jurisdiction over him and, therefore, its July 25, 2003 judgment was “void.” His argument is a three-step process: because he no longer was represented by counsel, Deborah was required to “serve” him by mailing the petition to him, not ⁶⁸⁸ to his former attorney; the consequence of ineffective “service of process” is a lack of personal jurisdiction; therefore, the court did not have personal jurisdiction over him and its judgment was void. 5 The personal jurisdiction argument Steven advances on appeal was not made below. Neither his motion to dismiss, with supporting memorandum, nor any other filing mentioned personal jurisdiction. By not raising the issue of personal jurisdiction below, Steven failed to preserve it for review.

Rule 8—131(a). While the issue of subject matter jurisdiction may be raised at any time, that is not the case with the issue of personal jurisdiction. See Jones v. State, 379 Md. 704, 712 , 843 A.2d 778 (2004) (noting that under Maryland Rule 8-131(a) subject matter jurisdiction may be raised at any time); Lane v. State, 348 Md. 272, 278 , 703 A.2d 180 (1997) (same). Compare Rules 2-322 and 8-131(a).

We hasten to point out that Steven’s personal jurisdiction argument on appeal and the service argument he made below, though different, are both premised on misunderstandings of the law. “Service of process” and service of a pleading or other paper are not the same thing. “Process” is “any written order issued by a court to secure compliance with its commands or to require action by any person.... ” Rule 1-202(u). It includes a summons or a subpoena. Id. The contents of process and the proper methods of service of process are governed by Rules 2-114 and 2-121 to 2-126, respectively.

A pleading is a complaint, countercomplaint, cross-claim, third-party complaint, an answer, an answer to a counterclaim, cross-claim, or third-party complaint, or a reply to an answer. The “original pleading” is “the first pleading filed in an action against a defendant.” Rule l-202(q). The service of process rules make plain that the content of process includes an original pleading. See Rule 2-112. ⁶⁸⁹ By contrast, Rule 1-321—not the service of process rules— governs the service of pleadings and papers other than original pleadings.

Deborah’s petition was not an original pleading, because it was not the first pleading filed in the action against Steven. (That pleading was Deborah’s countercomplaint for absolute divorce, filed in 1999.) Moreover, the petition did not seek new or additional relief that was not sought in Deborah’s original countercomplaint. See Goodyear Tire & Rubber Co. v. Ruby, 312 Md. 413 , 540 A.2d 482 (1988) (holding that a notice of a request for child or spousal support earnings lien was not an additional claim for relief requiring new service of process on the defendant; and that the right to exercise personal jurisdiction over the defendant arose when he was served with the original divorce complaint). Accordingly, service of the petition on Steven was governed by Rule 1-321.

Neither the service of process rules nor the cases Steven cites pertaining to personal jurisdiction apply. The Circuit Court for Frederick County obtained personal jurisdiction over Steven in this action in 1999. Indeed, Steven submitted to the court’s jurisdiction over him by filing his complaint in that court in May of that year. Even if Deborah’s petition, filed in September 2002, was not properly served on Steven because, instead of being mailed to him, it was mailed to the lawyer who had represented him (and whose appearance only recently had been automatically terminated), the court still had personal jurisdiction over him.

To be sure, Steven was entitled, under Rule 1-321 and under principles of due process, to notice of the petition. See Ledvinka v. Ledvinka, 154 Md.App. 420, 429 , 840 A.2d 173 , (2003) (noting that the most important function of the pleading requirements is to provide notice to the parties as to the nature of the claims or defenses being asserted in the case) (citing Scott v. Jenkins, 345 Md. 21, 27-28 , 690 A.2d 1000 (1997) and Liberty Mut. Ins. Co. v. Ben Lewis Plumbing, Heating & Air Conditioning, Inc., 121 Md.App. 467 , 710 A.2d 338 (1998)).

Although the rule may not have been complied with, Steven in fact received ⁶⁹⁰ actual notice of the petition. Any noncompliance with the rule did not affect the court’s jurisdiction over Steven’s person. 6 II. Indefinite Alimony (i) Legal Principles The passage in 1980 of the Maryland Alimony Act (“Act”), now codified at FL sections 11-101 through 11-111, significantly changed the approach to alimony in Maryland. Blaine, supra, 336 at 64, 646 A.2d 413 (discussing Acts of 1980, chapter 575).

As originally conceived, the purpose of alimony was to give a wife, who was presumed to be financially dependent and unable to support herself, support and maintenance from her husband, so she could continue, after divorce, the standard of living she had become accustomed to during the marriage. See Timanus v. Timanus, 178 Md. 640, 642-43 , 16 A.2d 918 (1940); Simpson v. Simpson, 18 Md.App. 626, 628-29 , 308 A.2d 410 (1973). After the Equal Rights Amendment was adopted as Article 46 of the Maryland Declaration of Rights, on July 1, 1972, the statutes governing alimony were amended to reflect gender neutrality, but the concept of alimony as a lifetime pension remained. See Md.Code (1957, 1975 Supp.), § 3 of former Article 16. ⁶⁹¹ Upon passage of the Act, however, the General Assembly rejected the prior concept of alimony “as lifelong support enabling the dependent spouse to maintain the standard of living enjoyed during the marriage.” Blaine, supra, 336 Md. at 64 , 646 A.2d 413 .

See also Tracey v. Tracey, 328 Md. 380, 391 , 614 A.2d 590 (1992). The General Assembly replaced that socially outdated concept with “the modern view that the dependent spouse should be required to be self-supporting, even if that results in a reduced standard of living.” Blaine, supra, 336 Md. at 69 , 646 A.2d 413 . See also Holston v. Holston, 58 Md.App. 308 , 473 A.2d 459 (1984). The policy underlying the Act thus favors fixed term, i.e. definite, alimony over indefinite alimony, to provide the parties the incentive to become self-supporting.

Turrisi v. Sanzaro, 308 Md. 515, 524 , 520 A.2d 1080 (1987) (stating that “ ‘in the ordinary case’ alimony would be awarded for a definite period of time, to promote the transitional or rehabilitative function”) (quoting the 1980 Report of the Governor’s Commission on Domestic Relations Laws); Innerbichler v. Innerbichler, 132 Md.App. 207, 244 , 752 A.2d 291 (2000). In Hull v. Hull, 83 Md.App. 218, 222-23 , 574 A.2d 20 , cent. denied, 321 Md. 67 , 580 A.2d 1077 (1990), Judge Moylan explained that, with the adoption of the Alimony Act, “the law’s concern became that of fostering the self-sufficiency of both parties to the dissolved marriage.... [Ajlimony, when necessary, became essentially short-term and rehabilitative.... The goal is to render the party ... self-supporting so as to vitiate any further need for alimony.” The Act did not change the well-established principle that an equity court’s decision whether to grant an alimony award and, if so, in what amount is an exercise in discretion. FL § 11-106; Blaine, supra, 336 Md. at 65 , 646 A.2d 413 ; Turrisi v. Sanzaro, supra, 308 Md. at 528 , 520 A.2d 1080 .

It directs, under FL section 1 l-106(a)(l), that the court determine the amount of, and period for, an award of alimony; and, under FL section ll-106(b), that it consider “all the factors necessary for a fair and equitable award, including” twelve factors specifically enumerated. The Act also provides, at subsection ⁶⁹² ll-106(a)(2), that, “at the conclusion of the period of the award of alimony, no further alimony shall accrue.” The policy underlying the Act favors alimony awards that are definite, for transitional or rehabilitative purposes. Nevertheless, the Act permits an equity court to award alimony for an indefinite period in two exceptional circumstances: if, “due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting” (section 11—106(c)(1)); or if, “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.” (Section ll-106(c)(2).) The spouse seeking indefinite alimony bears the burden of proof as to the existence of the prerequisites to entitlement to such an award. Thomasian v. Thomasian, 79 Md.App. 188, 195 , 556 A.2d 675 (1989).

In order to exercise its discretion to award indefinite alimony on the ground of “unconscionable disparity,” under FL section 11—106(c)(2), the equity court must find that, even though the party seeking indefinite alimony can make substantial progress toward becoming self-supporting, at the time that maximum progress reasonably is expected, the standards of living of the parties will be unconscionably disparate. Blaine, supra, 336 Md. at 64 , 646 A.2d 413 ; Roginsky v. Blake-Roginsky, 129 Md.App. 132, 141-42 , 740 A.2d 125 (1999). Thus, deciding a request for indefinite alimony under FL section ll-106(c)(2) entails projecting forward in time to the point when the requesting spouse will have made maximum financial progress, and comparing the relative standards of living of the parties at that future time. Roginsky, supra, 129 Md.App. at 146 , 740 A.2d 125 .

See Blaine, supra, 336 Md. at 64 , 646 A.2d 413 (commenting that, because the language of section 11-106(c)(2) is prospective, it “in effect requires] ... the court [to] make a prediction as to the success of the dependent spouse’s efforts to become self-sufficient”). ⁶⁹³ Under Maryland common law as it existed before passage of the Act, alimony was an incident of divorce and therefore the equity court’s power to grant alimony ended upon the granting of a divorce. For that reason, if the court granted a divorce but did not award alimony, it could not later award alimony. Blaine, supra, 336 Md. at 68 , 646 A.2d 413 ; Upham v. Upham, 238 Md. 261, 265 , 208 A.2d 611 (1965); Scott v. Scott, 103 Md.App. 500, 511-12 , 653 A.2d 1017 (1995); Speropulos v. Speropulos, 97 Md.App. 613, 617 , 631 A.2d 514 (1993). To guard against such a result, it became a common practice for the equity court to reserve jurisdiction over the issue of alimony, so that even though alimony was not awarded (because the issue was not decided) when the divorce was granted, the court later could award it.

Blaine, supra, 336 Md. at 68-69 , 646 A.2d 413 ; Scott, supra,, 103 Md.App. at 511-12 , 653 A.2d 1017 . In Turrisi v. Sanzaro, supra, 308 Md. 515 , 520 A.2d 1080 (1987), the Court of Appeals addressed the question of whether the equity court’s inherent power to reserve deciding the issue of alimony was eliminated by the