Goshorn v. Goshorn

KRAUSER, J. The Circuit Court for Calvert County granted appellant, John A. Goshorn, a judgment of absolute divorce from appel-lee, Edna D. Goshorn and then, in words that are to play a key role in this appeal, “ordered that all other issues, including child support, custody and marital property have been reserved and set for a future date before the Honorable Warren J. Krug in this Court.” No specific juristic mention was made of alimony. When, a year later, the circuit court awarded ¹⁹⁸ Mrs. Goshorn indefinite alimony, that omission would create this appeal’s first issue: was alimony one of the “other issues” reserved for “a future date”? The second issue is a little more prosaic. It asks us to determine whether the circuit court misapplied the twelve factor test of Md.Code (1984, 1999 Repl.Vol.), § 11-106(b) of the Family Law Article (“FL”) in awarding Mrs. Goshorn indefinite alimony.

While the second issue is almost routine in cases such as this, the third issue is not. It takes us into less familiar territory and asks that we consider the duty of a noncustodial parent (in this instance, Mrs. Goshorn) to support a handicapped adult child, specifically, one who is not self-supporting but who is presently receiving Social Security Income (“SSI”) benefits until she reaches the age of twenty-one. The handicapped adult child at issue here is Sarah, the oldest of the parties’ three children. After awarding custody of the two other children to Mr. Goshorn and finding, by agreement of the parties, that the eighteen year old Sarah was a “destitute adult child” under FL §§ 13~101(b), the circuit court did not include her in calculating Mrs. Goshorn’s child support obligation because Sarah was temporarily receiving SSI assistance.

Claiming error, Mr. Goshorn challenges the jurisdiction of the circuit court to belatedly award indefinite alimony to Mrs. Goshorn, the circuit court’s application of the twelve factor alimony test, and the exclusion of the parties’ adult child by that same court from Mrs. Goshorn’s child support obligation. We can only grant him partial relief. The circuit court, we hold, did have jurisdiction to make an award of indefinite alimony to Mrs Goshorn. Nonetheless, we shall vacate that award because of a judicial error made in calculating Mr. Goshorn’s income.

A vacation of an alimony award requires a vacation of any concomitant monetary award because the two must be considered in tandem. Consequently, we shall also vacate Mrs. Goshorn’s monetary award so ¹⁹⁹ that the court may make any adjustment in alimony or to that award it deems appropriate. Furthermore, we shall vacate the circuit court’s child support award, as it was calculated without considering that Sarah may be without any SSI assistance once she reaches the age of twenty-one. The record and the briefs suggest that the SSI benefits are only temporary, and counsel was unable to clarify, during argument before this Court, whether Sarah will still be eligible for those or other benefits once she turns twenty-one.

There is, moreover, no basis in the record for the court to conclude that Sarah’s SSI benefits provide her with an appropriate level of support. Background The parties had been married for twenty years when they separated in June 2000. During their marriage, they had three children: Sarah, born on July 28, 1983; John Jr., born on August 5, 1988; and Zachary, born on May 21, 1992. Sarah, the oldest child, was bom with Down’s Syndrome.

Although now an adult, Sarah functions at the level of a three or four year old, and the parties agree that she cannot support herself. Because of her disability, Sarah receives $545 per month in SSI benefits; those payments apparently cease when she turns twenty-one. Mr. Goshorn, an employee of the United States Bureau of the Census for over thirty years, was the primary breadwinner of the family, while Mrs. Goshorn devoted herself, for the most part, to the care of the parties’ children. In fact, Mrs. Goshorn stopped working shortly after Sarah’s birth.

Three years after that, Mrs. Goshorn obtained a daycare license that permitted her to operate a small daycare business out of the family home, 1 which she did for approximately ten years. The daycare business allowed Mrs. Goshorn to stay at home and raise the children, while providing additional income for the ²⁰⁰ family. With the problems that Sarah faced, the arrangement “worked out pretty fair,” observed Mr. Goshorn. After her daycare business ended, 2 Mrs. Goshorn went to work for the Kmart Corporation part-time and for the Calvert County School System as a part-time cook.

Eventually, she left both jobs to work full-time as a cook for the Prince George’s County School System, the position she currently holds. As a full-time cook, Mrs. Goshorn earns $9.36 an hour and works thirty hours a week. Although she works only thirty hours a week, the circuit court, without objection from Mrs. Goshorn, imputed forty hours of work a week to Mrs. Goshorn and, based on that number of hours, concluded that she earned $1622.40 per month. Making further professional advancement problematic, Mrs. Goshorn reads at a third grade level- and, as her testimony disclosed, she had great difficulty in understanding and preparing a financial statement for the divorce proceedings.

Given “Mrs. Goshom’s education and her skills,” the circuit court concluded, “it is impossible for her to be wholly self-supporting. ...” In June 2000, Mrs. Goshorn took the children and left the marital home to move in with her sister in St. Mary’s County. There, she lived with her children, her sister, and her brother-in-law in a house that was partly owned by a Mr. James Boswell. At some point a relationship between Mr. Boswell and appellee developed because, at the time of the divorce proceedings, the two were living together. That living arrangement apparently began when Boswell moved into the St. Mary’s house in November 2000.

Several months later, Mr. Boswell and Mrs. Goshorn moved to Lusby, Maryland, where they rented a three bedroom home and shared expenses. ²⁰¹ Procedural History On July 21, 2000, Mr. Goshom filed a complaint for absolute divorce in the Circuit Court for Calvert County seeking principally a divorce, custody of the parties’ children, and child support. 3 A year later, on August 9, 2001, Mrs. Goshom responded by filing a counterclaim, seeking a divorce, custody of the two minor children (Sarah having by now reached adulthood), child support, and permanent alimony. Before the counterclaim was filed, however, a custody hearing was held on February 18, 2001. Seven months after that, the circuit court issued an order, granting the parties joint custody of the minor children, but awarding Mr. Goshom primary “physical and residential custody” of all three children on a pendente lite basis. 4 On August 16, 2001, the parties appeared before a domestic relations master solely on the issue of the divorce. At the conclusion of that hearing, the master stated he was “satisfied that there’s been sufficient evidence produced to grant [Mr. Goshorn] an actual divorce from his wife, Edna Goshom.” The next day, the Circuit Court for Calvert County granted Mr. Goshorn a judgment of absolute divorce.

In doing so, it stated “that all other issues, including child support, custody and marital property have been reserved and set for a future date before the Honorable Warren J. Krug in this Court....” A hearing on the issues reserved began on January 23, 2002, and continued on April 18, 2002. On the first day of what was, despite its conclusion three months later, only a two-day hearing, Mr. Goshorn’s counsel moved to prohibit any testimony relating to alimony on the ground that the divorce decree ²⁰² “did not reserve alimony specifically.” Disagreeing, Mrs. Goshorn’s attorney asserted that he had raised the issue during the divorce hearing, that opposing counsel had orally assured him that it was preserved, and that the court’s divorce decree reserved “all other issues.” After hearing from both sides, the court ruled that it was “reserv[ing] on the alimony issue,” but would permit Mrs. Goshorn to testify about matters relevant to that issue. When that hearing concluded three months later, the circuit court awarded Mrs. Goshorn indefinite alimony in the amount of $1,500 a month. In doing so, it stated: Okay.

Let me address the issue of alimony first. In looking at the factors in 11.106, the Court has to consider the twelve factors that are listed in that section: the ability of the party seeking alimony to be wholly or partly self-supporting. I think in view of Mrs. Goshorn’s education and her skills that is impossible for her to be wholly self-supporting and it would be very difficult for her — she can partly self-support herself, but I think not to the extent that she can fully self-support herself. The time necessary for her to gain sufficient education and training to enable the party to find suitable employment, I don’t think that would be possible in light of her education and her skills.

The standard of living the parties have established. I agree they’ve established a middle income or a fairly reasonable standard of living. Nothing outlandish. Nothing— I think it’s a fairly modest standard of living.

Duration of the marriage. The parties were married about twenty years, twenty-one years. Contributions, monetary and non-monetary of each party to the well-being of the family. I think they both contributed.

Mr. Goshorn was the primary breadwinner. Mrs. Goshorn was home raising the children, caring for them. Also did some — had some income. Circumstances that contributed to the estrangement of the parties.

I think that’s a fairly neutral factor. I think ²⁰³ these parties just grew apart. Mrs. Goshorn testified that Mr. Goshorn was controlling and that was something that wras not acceptable to her, and I think they finally grew apart. Age of the parties.

There is a few years age difference. I think, what, eight or nine years difference in the ages. Somewhere around that. Physical and mental condition of each party.

Both parties seem to be physically in good shape and mentally in good shape except that Mr. Goshom’s — excuse me. Mrs. Goshorn’s abilities are not up to the extent that Mr. Gos-horris are and I think never will be. 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. I think — certainly I think Mr. Goshorn has the ability to meet his needs while meeting Mrs. Goshom’s — or while meeting the needs of Mrs. Gos-horn.

There is no agreement between the parties. Financial needs and financial resources of each party, including income and assets, including property [that] does not produce income. Clearly Mr. Goshorn has much more in this way. Any award under 8-205 and 8-208 — I need to make sure I got those correct. 8-205 is a monetary award, which I’ll come to in a few minutes.

And 8-202 is use and possession. I’ll come to both of those in just a minute. The nature and amount of the financial obligations of each party. I don’t think we’ve had much testimony or significant testimony.

Obviously, there is a mortgage on the house and I don’t believe there is any significant amount otherwise. Right of each party to receive retirement benefits. Mrs. Goshorn has just started getting a — being covered under a retirement plan. Mr. Goshorn has twenty plus years of Federal service where he has — has the right to receive those retirement benefits.

And I don’t think factor twelve applies. ²⁰⁴ The other issue to look at is the issue of whether this should be rehabilitative alimony or indefinite alimony. The law favors rehabilitative alimony, but the factors to be considered are the ability of the party seeking alimony to be wholly or partly self-supporting, and the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment. I don’t think Mrs. Goshom will ever get to the point where she is able to earn income that — or, excuse me, find a job that would permit her to earn an income that would fully support herself or that would be — it would be suitable employment. So based on that I find that there is, in fact, a basis for an award of indefinite alimony.

The court continued: All right. Let me get back to the alimony. This is a case in which we have two individuals whose income is truly disparate. Mr. Goshom’s income is almost Seven Thousand Dollars a month.

Mrs. Goshom, if she worked forty hours a week, would be Sixteen Hundred and Twenty-Two Dollars and Forty cents per month. Based on all of this, I am going to order that Mrs. Goshorn receive indefinite alimony in the amount of One Thousand Five Hundred Dollars per month. In sum, the court found that “in view of [Mrs. Goshorn’s] education and her skills” it would not be possible “for her to be wholly self supporting” or “to gain sufficient education and training to enable [her] to find suitable employment.” It further concluded that the parties’ respective incomes were “truly disparate.” And, based on these findings, the court ordered Mr. Goshorn to pay Mrs. Goshorn $1,500 a month in indefinite alimony. In the written order that followed, the court also awarded Mrs. Goshorn 50% of the marital portion of Mr. Goshom’s retirement pension on an as, if, and when basis; the right to elect to receive a survivor annuity in Mr. Goshorn’s retirement pension; a one-third interest in Mr. Goshom’s thrift savings ²⁰⁵ plan; and, “if jointly-titled, half of the proceeds of the sale of the family home after the expiration of any use and possession order.” The order further awarded Mr. Goshom sole legal and physical custody of the two minor children, John and Zachary, and granted Mr. Goshorn use and possession of the family home until July 1, 2004.

Although the court found, as the parties agreed, that the now eighteen-year-old Sarah was a “destitute adult child,” it excluded her in calculating Mrs. Goshom’s child support obligation. The court explained its actions, by stating that Sarah is “currently receiving Social Security income benefits and is therefore considered self supportive.... ” After the hearing, but before the written order was issued, counsel for Mr. Goshorn prepared and submitted a child support obligation worksheet, which calculated Mrs. Goshom’s monthly child support obligation for the two minor children at $703.27. And that was the figure that the court ordered Mrs. Goshorn to pay in child support for the parties’ two minor children, John and Zachary. The worksheet, it should be noted, reflected that Mrs. Goshom’s child support obligation of $703.27 included her share of $273 a month in work-related child care expenses.

DISCUSSION I Mr. Goshom contends that the circuit court lacked jurisdiction to award Mrs. Goshom indefinite alimony because it did not reserve Mrs. Goshorn’s claim for alimony when it granted Mr. Goshorn’s request for a judgment of absolute divorce. We disagree. In Maryland, the circuit court has inherent power to reserve the issue of alimony when it enters a decree of divorce. Turrisi v. Sanzaro, 308 Md. 515, 526 , 520 A.2d 1080 (1987).

Reserving the right to award alimony enables the court to award alimony long after the divorce decree, when it ²⁰⁶ is appropriate to do so. Id. at 522 , 520 A.2d 1080 . But, “[i]f at the time of the divorce the court fails to either award alimony or reserve the right to award alimony at a later date, it is forever barred from ordering it.” Blaine v. Blaine, 97 Md.App. 689, 701 , 682 A.2d 191 (1993), aff'd, 336 Md. 49 , 646 A.2d 413 (1994); see also Turrisi, 308 Md. at 521-22 , 520 A.2d 1080 . Here, the record reflects that the court reserved jurisdiction to award alimony after the entry of the divorce decree on August 17, 2001.

The judgment for absolute divorce issued on August 17, 2001, specifically stated that “all other issues including child support, custody and marital property have been reserved and set for a future date before the Honorable Warren J. Krug in this Court.” (Emphasis added). Those words were, to be sure, not intended to reserve only the three enumerated issues — child support, custody and marital property- — for future consideration. Those three issues are only given as examples of “all” of the “other issues” that “have been reserved and set forth for a future date before the Honorable Warren J. Krug____” Mr. Goshom nonetheless contends that an order reserving “all other issues” is insufficient to reserve jurisdiction to award alimony after a divorce. To bolster that claim, he cites Speropulos v. Speropulos, 97 Md.App. 613 , 631 A.2d 514 (1993), which held that the circuit court’s reservation of “all property issues,” after granting a divorce, was insufficient to reserve jurisdiction to make a post-divorce award of alimony.

Id. at 618 , 631 A.2d 514 . At the time the circuit court in Speropulos entered a judgment of divorce, it reserved jurisdiction over “all property issues including monetary award, if any ... for future determination.” Id. at 617 , 631 A.2d 514 . Noting that there is a distinction between alimony and the disposition of property, we concluded that “a reservation as to ‘all property issues’ is insufficient to retain jurisdiction over the issue of alimony.” Id. at 618 , 631 A.2d 514 . But, here, the circuit court did not limit its reservation to just “property issues.” Rather, the court extended its reser ²⁰⁷ vation to “all other issues,” which presumably included Mrs. Goshom’s counterclaim for alimony.

Indeed, this Court noted in Speropulos that had the circuit court utilized broad terminology, such as “ ‘this court shall have continuing jurisdiction in these proceedings,’ ” the court’s order would have been sufficient to reserve jurisdiction to award alimony. See id. at 617-18 , 631 A.2d 514 (quoting Flood v. Flood, 16 Md.App. 280, 286 , 295 A.2d 784 (1972) (quoting Reed v. Reed, 11 Md.App. 396, 399 , 274 A.2d 652 (1971))). The court’s order in this case was therefore sufficiently broad to reserve jurisdiction on that issue. Moreover, when the master stated at the August 16, 2001, divorce hearing that “[a]ll other matters, including child support, custody, marital property, have been reserved and set for (inaudible) before Warren Krug in this court (inaudible),” the following exchange occurred between Mrs. Goshorn’s counsel and the domestic relations master: [COUNSEL]: “All the issues would include alimony.

At the last second, my client filed a counterclaim and I — ,” [MASTER]: “I see. We’ve included everything in the (inaudible).” [Counsel]: “I just want to make sure. I don’t want anything (inaudible).” [MASTER]: “Oh, yes. Okay.” Although parts of this exchange are inaudible, the transcript clearly suggests that the parties addressed Ms. Goshorn’s alimony claim, that the master was aware of that claim, and that the master intended to reserve it with all other issues for later review.

II Mr. Goshorn claims that, in applying the twelve factor alimony test of FL § 11-106(b), the circuit court “assumed and misapplied facts not in evidence.” Specifically, he contends the court “erred on the evidence pertaining to factors 1,2,6,9, and 11” and that Mrs. Goshorn “failed to meet her burden of proof for either indefinite or rehabilitative alimony.” ²⁰⁸ Neither of these claims can withstand scrutiny; but, because the trial court incorrectly calculated Mr. Goshorn’s income, we shall vacate the circuit court’s award of indefinite alimony and remand this case to that court to make whatever changes it may deem appropriate, if any, in light of this miscalculation. A. The Court’s Findings With Respect to the Twelve Factor Alimony Test As noted, Mr. Goshom contends the court “assumed and misapplied facts not in evidence” in applying the twelve factor alimony test of FL § 11 — 106(b). We begin our analysis of this claim by noting that it is not cast in the words of the applicable standard of review. The standard we must apply in evaluating this claim requires us “to accord great deference to the findings and judgments of [the] trial [court],” see Tracey v. Tracey, 328 Md. 380, 385 , 614 A.2d 590 (1992), unless the circuit court’s factual findings were clearly erroneous, Md. Rule 8 — 131(c), or its judgment was an “arbitrary use of discretion.” See Blaine, 97 Md.App. at 698 , 632 A.2d 191 .

Applying that standard, it appears that Mr. Goshorn’s claims, at least as to some of the findings of fact made by the circuit court, have some merit. FL § ll-106(b) provides that the court shall consider twelve factors in determining whether to make an alimony award. With respect to those factors, this Court has stated: In making an award of alimony, the trial court is required to consider all of the factors set forth in F.L. § ll-106(b). To be sure, the court “need not use formulaic language or articulate every reason for its decision with respect to each factor.

Rather, the court must clearly indicate that it has considered all the factors.” If the court fails to make clear that it has considered all of the factors, then the record, as a whole, must reveal that the court’s findings were based on a review of the statutory factors. Digges v. Digges, 126 Md.App. 361, 387 , 730 A.2d 202 (1999) (quoting Doser v. Doser, 106 Md.App. 329, 356 , 664 A.2d 453 (1995)) (citations omitted). ²⁰⁹ Trial court judges are vested “with a great deal of liberty to weigh the relevant factors and arrive at fair and appropriate results.” Blaine, 97 Md.App. at 699 , 632 A.2d 191 . At bottom, the over-riding objective of the court is to do equity. See Tracey, 328 Md. at 393-94 , 614 A.2d 590 (“Generally speaking, alimony awards, though authorized by statute, are founded upon notions of equity; equity requires sensitivity to the merits of each individual case without the imposition of bright-line tests.... ” (citations omitted)).

The twelve factors are: (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 financial resources of each party, including: (i) all income and assets, including property that does not produce income; (ii) any award made under §§ 8-205 and 8-208 of this article; (iii) the nature and amount of the financial obligations of each party; and ²¹⁰ (iv) the right of each party to receive retirement benefits; and (12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur. FL § 11 — 106(b). Although the court did dutifully consider all twelve factors, the court erred, Mr. Goshom maintains, in applying factors one, two, six, nine, and eleven to the facts of this case. Factors one and two are so closely related that we shall consider them together. 1.

Factors One and Two — the Ability of the Party Seeking Alimony to be Wholly or Partly Self Supporting and the Time Necessary for the Party Seeking Alimony to Gain Sufficient Education or Training to Enable That Party to Find Suitable Employment In the words of the applicable standard of review— though not necessarily Mr. Goshom’s — Mr. Goshorn in essence contends that the court erroneously found that Mrs. Goshorn would never be wholly self-supporting and would never be able to obtain education and training necessary for suitable employment. We disagree. At the time of the proceedings, Mrs. Goshorn earned less than $10 an hour, 5 and the trial essentially concluded that Mrs. Goshom would never progress beyond her current status in ²¹¹ the labor market. There is ample support for this finding in the record.

Mrs. Goshorn testified that, at age forty-two, she had been assessed as reading at a third grade level. Mr. Goshorn corroborated this testimony, stating that he was aware that Mrs. Goshorn had difficulty reading and was not surprised that she had been