Heger v. Heger

CHARLES E. MOYLAN, JR., J., Retired, Specially Assigned. In determining the marital share of an asset such as a pension, Maryland domestic relations law utilizes a fraction to which it has attached the label “the Bangs formula.” This appeal is an occasion for a careful exegesis both of what Bangs v. Bangs, 59 Md.App. 350, 356 , 475 A.2d 1214 (1984), expressly said and also of what Bangs v. Bangs necessarily implied with respect to such a fraction. The appellant, Stefanie Heger (“Wife”), and the appellee, Bryan Heger (“Husband”), were married on November 16, 1990, in Anne Arundel County. Two children were born of the marriage.

The parties separated on November 15, 2003. On May 17, 2004, the Husband and Wife entered into a formal Parenting Plan, reached as a result of mediation, by which they were to share joint legal custody of the children but by which primary physical custody was to be with the Husband. The Parenting Plan was enrolled as a court order on June 11, 2004. The Wife Shortly after the Wife left the family home, she moved to the State of Indiana.

That move by her was reflected in the Parenting Plan, as it provided for visitation of the children with her for a period of three weeks (broken down into two segments) each summer and also for her “to have a long weekend once a month with the children whenever possible.” ⁸⁸ The Husband From 1977 through October 2003, the Husband was employed as an Anne Arundel County police officer. Over the course of that employment, the Husband sustained various physical injuries, including a broken right knee, a broken right hand, a torn Achilles tendon in the left ankle, and several serious injuries to the back resulting in two herniated disks. The back injuries necessitated several surgeries, including a laminectomy and a fusion with titanium rods and screws put into his back. After the fusion operation, the Husband was approached by Anne Arundel County to discuss the possibility of a disability retirement.

At that point, the Husband was eligible for regular retirement as of 1997. He and the Wife discussed the pluses and minuses of regular retirement versus disability retirement. Because the disability retirement benefits were greater each month and were not taxed, the Husband and Wife jointly agreed that the Husband should choose that option. By the time the parties were divorced on June 12, 2007, the Husband’s police department service during the period of the parties’ marriage amounted to 12 years and 11 months.

The Divorce The Husband filed his Complaint for an Absolute Divorce on December 24, 2006. The Husband requested 1) that the Parenting Plan be incorporated but not merged into the divorce decree; 2) child support; 3) a contribution from the Wife for the children’s medical expenses and health insurance; 4) use and possession of the family home; and 5) attorney’s fees and costs. On April 4, 2006, the Wife filed a Counterclaim for Absolute Divorce. A trial on the merits was held before Judge Ronald A. Silkworth in the Circuit Court for Anne Arundel County on December 6 and 7, 2006, and January 24 and 25, 2007.

On June 12, 2007, Judge Silkworth issued a Judgment of Divorce Absolute and a meticulously thorough 37-page Memorandum Opinion,- filed by the clerk on June 15, 2007. The divorce was granted to the Husband on the basis of two years ⁸⁹ of voluntary separation. The Parenting Plan was incorporated into the divorce decree, whereby the Husband continued to have the primary physical custody of the two sons. The Wife was ordered to pay child support in the amount of $836.00 per month.

In terms of a monetary award, Judge Silkworth ordered that the Husband shall pay to the Wife, “as an adjustment of the equities, a monetary award in the amount of $28,403.” One other order of Judge Silkworth is pertinent to this appeal. In his Order of June 12, 2007, Judge Silkworth had ordered the Husband to pay to the Wife “a 32% share of his pension payments.” As a result of a Motion to Revise Judgment filed by the Husband on July 31, 2007, pursuant to Rule 2-535, alleging a mathematical error in the calculation of the marital portion of the Husband’s disability pension, Judge Silkworth issued an Amended Judgment of Absolute Divorce on August 31, 2007. The only change was to substitute “a 25% share of his pension payments” for the earlier “32% share.” The Contentions On this appeal, the Wife raises essentially the five questions: 1. Did the Circuit Court err in its determination of the marital property value of the home located at 2932 Golden Fleece Drive, Pasadena, Maryland 21122? 2.

Did the Court err in denying the Appellant’s request to be named beneficiary of the Appellee’s survivor benefit? 3. Did the Court err in failing to grant to the Appellant the federal and state income tax dependency exemptions for the parties’ two children? 4. Did the Court err in denying the Appellant’s request for an award of attorney’s fees and costs? 5. Did the Court err in issuing its Amended Judgment of Absolute Divorce dated August 31, 2007? ⁹⁰ 2932 Golden Fleece Drive The Wife’s primary contention is that Judge Silkworth erroneously undervalued the marital property value of the family home at 2932 Golden Fleece Drive.

The Husband and Wife purchased 2932 Golden Fleece Drive on November 25, 1991, for $170,000. The property was deeded to the Husband in his name alone. It was uncontroverted that the Husband paid the down payment of $55,000 from non-marital funds that he had received from the sale of a home that he had owned prior to the 1990 marriage of the parties. The remaining $115,000 of the purchase price was financed by a mortgage in the Husband’s name.

It was not contested that 32.4% of the purchase price came solely from non-marital funds. The parties stipulated that, as of the time of the divorce, the Golden Fleece property had a value of $360,000, subject to a mortgage and two home equity lines of credit for a total indebtedness of $313,677. Judge Silkworth found that the Husband’s non-marital 32.4% of the stipulated value of $360,000 was $116,640. See Grant v. Zich, 300 Md. 256, 269 , 477 A.2d 1163 (1984); Harper v. Harper, 294 Md. 54, 80-81 , 448 A.2d 916 (1982).

Judge Silkworth’s Memorandum Opinion clearly set out the initial situation with respect to the family home. Mr. Heger alleged that a portion of Golden Fleece was non-marital. He testified that the parties resided in a home referred to as the Linda Avenue property after their marriage in November of 1990. The Linda Avenue home was built on property that Mr. Heger received from his family’s farm.

On November 22, 1991, Mr. Heger sold the Linda Avenue property to the State of Maryland and received net proceeds of $95,347.44 after the mortgage on Linda Avenue was satisfied. On November 25, 1991, he purchased Golden Fleece for $170,000.00. He testified that the sum of $55,000.00 from the proceeds of Linda Avenue was used as a down payment on Golden Fleece. He financed the remaining $115,000.00 with a mortgage.

Therefore, approximately 32.4% of the pur ⁹¹ chase price of the marital home came solely from non-marital funds. Judge Silkworth then followed the guidelines of Grant v. Zich, supra, in calculating the net marital value of the Golden Fleece property after the remaining mortgage debt and the two home equity lines of credit had been subtracted and concluded that “for marital value purposes, Golden Fleece is valued at zero.” The Court finds that Grant v. Zich, 300 Md. 256 [ 477 A.2d 1163 ] (1984) is instructive regarding the appropriate way to calculate the marital and non-marital portion of the home in this case. In this case, the Court of Appeals stated: Property is nonmarital in the ratio that the nonmarital investment bears to the total nonmarital and marital investment in the property. To the extent that property is nonmarital, its value is not subject to equitable distribution.

Property is marital in the ratio that the marital investment bears to the total nonmarital and marital investment in the property. To the extent that the property is marital, its value is subject to equitable distribution. The following example illustrates the proper application of these principles. A husband and wife acquired real property for a purchase price of $40,000.

The wife contributed a down payment of $10,000 from property that she acquired prior to marriage. The remaining $30,000 was financed by a mortgage signed by both the husband and the wife. One-quarter of the value of the property is the wife’s nonmarital property and three-quarters of the value of the property is marital property. If, at the time of the dissolution of the marriage, the property has appreciated in value to a fair market value of $60,000 and the mortgage indebtedness has been reduced to $20,000 by the payment of $10,000 of marital funds, the following division would be appropriate.

One-quarter of the $60,000 fair market value of the property, or $15,000, would be the wife’s nonmarital property, not ⁹² subject to equitable distribution. From the remaining $45,000, $20,000, representing the unpaid mortgage balance, would be deducted leaving $25,000 as the net value of the marital property subject to equitable distribution. Id. at 276 [ 477 A.2d 1163 ]. In the case at hand, the Court finds that there is a non-marital interest of $55,000.00, which was 32.4% of the value of Golden Fleece at the time it was purchased for $170,000.00.

Therefore, the Court has taken 32.4% of the stipulated■ value of the home, $360,000.00, which equals $116,640.00. Subtracting the amount of Mr. Heger’s non-marital interest jrom the value of the home leaves $243,360.00. However, in accordance with the method set forth in Grant, the Court must account for the three liens, totaling $313,677.00. Because there is no money leftover from the $360,000.00 value after Mr. Heger’s non-marital portion is accounted for and after the liens are accounted for, there is no value available for equitable distribution.

Accordingly, for marital value purposes, Golden Fleece is valued at zero. The Court will take into account Mr. Heger’s non-marital portion when considering the value of all property interests of each party pursuant to factor eleven of the monetary award statutory considerations. (Emphasis supplied). Once the Husband’s non-marital interest of $116,640 in 2932 Golden Fleece Drive was subtracted from the $360,000 value of the home, the remaining marital value of the property was $243,360.

Judge Silkworth expressly found as a fact that offsetting that value of the property were 1) the remaining balance due on the mortgage of $267,064, 2) a post-separation first line of credit with an unpaid balance of $26,227, and 3) a post-separation second line of credit with an unpaid balance of $20,385, for a total marital indebtedness on the property of $313,677. That more than equaled the marital value of the property of $243,360. The evidence with respect to the frequent and regular refinancing of the property over the course of the marriage was, to be sure, chaotic and vague. From the cross-examination of the Husband by the attorney for the ⁹³ Wife, however, it clearly appears that even the Wife’s position recognized that as of the time of the couple’s separation in November of 2003, the original 1991 mortgage of $115,000 had grown, through refinancing, to one of approximately $220,000, plus, as of that time, a Sears credit card debt of $9,430 and a Chase credit card debt of $4,317.

There was abundant testimony, moreover, to support Judge Silkworth’s conclusion in his Memorandum Opinion that the two post-separation lines of credit were taken out in order to pay off or refinance existing marital credit card debt, car loans for cars that were marital property, home maintenance, and the replacement of furniture the Wife had taken after the separation. The Wife offered no evidence to refute this. Indeed, the Wife’s attack on the evidence of the use of the funds to pay off marital indebtedness was confined to the fact that the evidence consisted largely of the Husband’s testimony and that that testimony was not adequately corroborated by the production of receipts. She offered no counterevidence of her own, but simply argued: The Appellee was asked several times on cross examination about his specific uses of the funds obtained from the post-separation refinancings of the home.

The Appellee provided some tentative testimony about his use of the funds from the January/February, 200k, refinancing and some testimony about his use of the BB & T loan monies. His -witness, Shelley Powell, testified briefly about a new jacuzzi installed by the Appellee after the parties’ separation. However, the Appellee did not produce any receipts in support of his claims and, when this issue became a point of great contention, near the end of the trial, the Appellee specifically declined the Court’s offer of a further opportunity to provide the receipts and proofs of his expenditures. (Emphasis supplied).

That had nothing to do, of course, with the admissibility of the evidence or with Judge Silkworth’s entitlement to be persuaded by it. The Wife’s attack does not hit the pertinent target, and we cannot say that Judge Silkworth’s fact-finding, ⁹⁴ out of a daunting welter of ambiguous evidence, was clearly erroneous. The Dissipation of Marital Assets The Wife contends that the diminution of the remaining marital value of 2932 Golden Fleece Drive was erroneous, at least in part although not entirely. The debts, of course, had accrued prior to the actual divorce and the general rule, expressed in Gravenstine v. Gravenstine, 58 Md.App. 158, 177 , 472 A.2d 1001 (1984), is that those debts would be subtracted before the marital property could be valued.

It is our view that the marital property which generates a monetary award must ordinarily exist as “marital property” as of the date of the final decree of divorce based on evidence adduced at the trial on the merits or a continuation thereof. Therefore, property disposed of before commencement of the trial under most circumstances cannot be marital property. Although “marital property” is defined as “all property, however titled, acquired by either or both spouses during their marriage ...,” the legislative scheme of the 1978 Marital Property Act contemplates determination of marital property at the time the marriage is dissolved, i.e., when the absolute divorce is granted. (Emphasis supplied.

There is, however, a recognized exception to the general calculation guidelines described in Gravenstine , and that is where one spouse has improperly dissipated some of the property. Although counsel for the Wife now downplays the significance of her having relied on a dissipation argument, Judge Silkworth’s conclusion that she was making a dissipation argument cannot be lightly discounted. As counsel for the Wife argued her claim before Judge Silkworth, she expressly argued dissipation. He had a purchase money mortgage, and then he refinanced, attempting to defeat her marital interest in the home via the refinanced amount.

The Court of — I don’t remember if it is the Court of Appeals or the Court of ⁹⁵ Special Appeals, said “No, that’s dissipation.” It was considered a dissipated amount of a marital asset.... We will show that he took — the marital assets, in addition to — there are at least six financings around shortly before the separation, or after the separation. He refinanced to dissipate the marital asset, to turn it into nothing, because fie felt that the Court — which is what he is asking the Court to do today — would look at the amount of the mo'rtgages, and subtract the current mortgage balance from the fair market value, and that would leave my client with nothing. And that is exactly what the Rogers case addressed.

(Emphasis supplied). In Choate v. Choate, 97 Md.App. 347, 366 , 629 A.2d 1304 (1993), Judge Rosalyn Bell discussed the dissipation of assets. She also pointed out that the burden of proof on such a charge is on the party alleging such dissipation. As a general rule, property disposed of before trial cannot be marital property.

Gravenstine v. Gravenstine, 58 Md. App. 158, 177 , 472 A.2d 1001 (1984). An exception to this rule is where one spouse claims that the property was improperly dissipated by the other spouse. See Rock v. Rock, 86 Md.App. 598, 618-20 , 587 A.2d 1133 (1991). Once improper dissipation is alleged, the burden shifts to the spouse claiming that dissipation occurred to prove that the other spouse used the marital property during the marriage to prevent inclusion of the assets far any consideration of a monetary award.

(Emphasis supplied). Jeffcoat v. Jeffcoat, 102 Md.App. 301, 311 , 649 A.2d 1137 (1994), also addressed the allocation of the burden of proof. The burden of persuasion and the initial burden of production in showing dissipation is on the party making the allegation. That party retains throughout the burden of persuading the court that funds have been dissipated, but after that party establishes a prima facie case that monies ⁹⁶ have been dissipated, i.e. expended for the principal purpose of reducing the funds available for equitable distribution, the burden shifts to the party who spent the money to produce evidence sufficient to show that the expenditures were appropriate.

(Emphasis supplied). In litigating a claim that one spouse has dissipated marital assets, the critical time is that between the separation or the time when “the marriage is undergoing an irreconcilable breakdown,” Sharp v. Sharp, 58 Md.App. 386, 401 , 473 A.2d 499 (1984), on the one hand, and the ultimate divorce, on the other hand. The other critical factor is the purpose on the part of the spending spouse for the expenditure. What matters is not that one spouse has, post-separation, expended some of the marital assets, what is critically important is the purpose behind the expenditure.

The doctrine of dissipation is aimed at the nefarious purpose of one spouse’s spending for his or her own personal advantage so as to compromise the other spouse in terms of the ultimate distribution of marital assets. Sharp v. Sharp, 58 Md.App. at 401, 473 A.2d 499 , defined dissipation. “Dissipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage.... ” It had earlier explained: “[W]here a chancellor finds that property was intentionally dissipated in order to avoid inclusion of that property towards consideration of a monetary award, such intentional dissipation is no more than a fraud on marital rights, and the chancellor should consider the dissipated property as extant marital property ... to be valued with the other existing marital property. This principle would apply even where the dissipated property cannot be recovered because ⁹⁷ it is in the hands of a purchaser who took in good faith, without notice and for value.” 58 Md.App. at 399, 473 A.2d 499 (emphasis supplied). In Karmand v. Karmand, 145 Md.App. 317, 345 , 802 A.2d 1106 (2002), Judge Deborah Eyler provided a helpful summary of the doctrine of dissipation.

First, dissipation of marital property can be found “where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” ... Second, the doctrine of dissipation permits the court to include, as extant marital property, marital property that was transferred, spent, or disposed of in some fashion by one of the spouses, under the circumstances described above. See Jeffcoat v. Jeffcoat, supra. Marital property found to have been dissipated is valued as of the time of dissipation.

Hollander v. Hollander, 89 Md.App. 156, 170 , 597 A.2d 1012 (1991). Thus, in this case, it was irrelevant that the marital funds first deposited in the Sequoia account in August 19999 no longer existed at the time of trial. Having properly found that those funds were dissipated by the appellant, the trial court was entitled to treat the funds as if they still were in existence. Indeed, that is the very purpose of the doctrine of dissipation.

(Emphasis supplied). The Wife does not seriously contest the legitimacy of the combined mortgage debt (first and second mortgages) of $220,000 as of the time of the parties’ separation in November of 2003. Her allegation of dissipation goes primarily to the home equity lines of credit, which she claims escalated the $220,000 of debt at the time of separation to a debt of $313,677 at the time of trial. The basic flaw in the Wife’s argument on this contention is her erroneous allocation to the Husband of the burden of proving that the various post-separation loans taken against the Golden Fleece property were for a proper family-related ⁹⁸ purpose.

Her contention depends upon the doctrine of dissipation, and that doctrine places squarely on her the burden of proving an improper purpose to the loans. If neither Husband nor Wife had offered a single word of testimony on this issue, it is the Husband who would have won the nothing-to-nothing tie. The Husband, however, offered abundant testimony to show a legitimate family-expense related purpose to explain expenditure after expenditure after expenditure. It is unnecessary here to engage in a tedious summation of the Husband’s extensive testimony on this issue.

Judge Silkworth’s Memorandum Opinion contains not only an excellent summary, but it sets out the substantial evidentiary basis for Judge Silk-worth’s non-clearly-erroneous conclusion. Mr. Heger testified that the lines of credit were taken to pay monthly bills including credit cards, car loans, home maintenance, and replace furniture Ms. Heger had taken after the separation. The testimony of both parties established that they had a history of refinancing the home and using lines of credit during the marriage and prior to their separation to pay similar expenses. For example, the first time a line of credit was taken, it was to pay for the Williamsburg timeshare.

Other refinancing was done to apply for cars the couple bought. According to Mr. Heger, refinancing became an every other year pattern. Based upon the testimony of both parties, the Court does not find that additional liens against the house were made “for the principal purpose of reducing the funds available for equitable distribution.” Jeffcoat v. Jeffcoat, 102 Md.App. 301, 311 [ 649 A.2d 1137 ] (1994) (defining dissipation of marital assets). Rather, the current liens against the property were in keeping with the parties’ tendency to use the equity in the home to get cash immediately.

Ms. Heger failed to establish that the liens, such as the most recent line of credit taken in 2006, were taken to dispose of equity for uses other than family purposes and with the intention of reducing the amount of property available for equitable distribution. Karmand v. Karmand, 145 Md.App. 317, 343 [802 ⁹⁹ A.2d 1106] (2001[2002]). In fact, Ms. Heger admitted that she knew Mr. Heger was going to refinance the home again. However, her only testimony was that she did not go with him to the refinance office.

She never stated that she objected to Mr. Heger’s actions or felt, at the time, that he was stealing away the parties’ equity. Mr. Heger’s testimony was credible that the money from the most recent refinancing paid off the family camper and debts to Sears. Therefore, even if the refinancing unfairly decreased the equity of the home, the funds were used to increase the value of other marital assets.” (Emphasis supplied). Pension Survival Benefits In the “Questions Presented” introduction to the Wife’s appellate brief, the present contention is framed in the following words: Did the Court err in denying the Appellant’s request to be named beneficiary of the Appellee’s survivor benefit?

From the single unilluminating page of “argument” offered in support of the contention, we cannot even be sure precisely what the appellant is talking about, and we sense that Judge Silkworth was largely in the same quandary. That the appellant did not cite any law to Judge Silkworth on the subject and does not cite any law on the subject to us is truly secondary, because the appellant did not and does not in the first instance even explain what pension provisions were in issue. Late in the trial, the appellant moved to have Judge Silk-worth order that the Husband should name the Wife as the beneficiary of his pension survival benefits. The Wife, however, offered no evidence that the Husband’s pension even provides such benefits, let alone evidence of her entitlement to them.

The Husband took the stand and testified that “his disability pension plan does not have a joint and survivor benefit election.” He stated that the County’s forms were generic and, if he were to die, his spouse [presumably his then spouse and not his ex-spouse] “would receive 100% of whatev ¹⁰⁰ er he was receiving until she remarried.” There was no other evidence offered with respect to the pension or with respect to any survivorship provisions. As to the current disposition of the Husband’s disability pension, Judge Silkworth used the so-called Bangs formula (from Bangs v. Bangs, 59 Md.App. 350 , 475 A.2d 1214 (1984)), and, literally applying the words of Bangs at 59 Md.App. at 356 , 475 A.2d 1214 to establish the critical marital/non-marital fraction, determined that 64% of the disability pension was marital and that, therefore, the remaining 36% of the pension was non-marital. He accordingly awarded the Wife 50% of the marital portion of the pension, which award amounted to 32% of the pension. (One-half of 64% is 32%).

We will have much more to say about what the correct marital/non-marital fraction should have been when addressing one of the later contentions. On the distinct question of ordering that the Wife be designated as the recipient of a survivor’s benefit, however, the Wife failed to provide Judge Silkworth with enough information to persuade him to take such an action. In his Memorandum Opinion, Judge Silkworth explained: In addition to the issue of monthly payments, the question of a survivor’s benefit was raised by Ms. Heger’s attorney. The court has authority to require one spouse to designate the other for survivor’s benefits under a survivor’s benefit plan.

Matthews v. Matthews, 336 Md. 241 [ 647 A.2d 812 ] (1994). The purpose of this authority is to continue the protection of spouse’s interest in the marital portion of the pension. Pleasant v. Pleasant, 97 Md.App. 711 [ 632 A.2d 202 ] (1993). Mr. Heger testified that his disability pension plan does not have a joint and survivor annuity benefit election.

He stated that the County’s forms were generic and, if he were to die, his spouse would receive 100% of whatever he was receiving until she remarried. In response to the Court’s question, Mr. Heger did not know if his divorce would change the circumstances so that Ms. Heger would no ¹⁰¹ longer receive that money. Mr. Heger further testified that there was no option in his pension regarding annuity. On direct examination by her attorney, Ms. Heger did not testify that the parties had an agreement that she would remain the joint and survivor beneficiary.

Based upon the lack of information provided to the Court and the fact that Ms. Heger will be receiving an equitable share of Mr. Heger’s pension, the request for a survivor benefit annuity election is denied. (Emphasis supplied). We see no abuse of discretion in Judge Silkworth’s denial of the motion. Income Tax Dependency Exemptions This was a four-day trial that produced a record extract of approximately 1000 pages.

Judge Silkworth resolved a dozen hotly contested issues and explained those resolutions in a meticulously thorough 37-page Memorandum Opinion. We are not about to reverse the trial court on the basis of some fleeting allusion to something that never became an unequivocally raised and articulately argued issue calling for the court’s unquestioned consideration and decision. We do not favor stealth contentions. The Wife, however, urges us to do just that as she contends that Judge Silkworth erroneously failed to grant her the income tax dependency exemptions for the two children.

She does not even tell us whether she is referring to the federal income tax, the Maryland income tax, or both, as her total argument consists of the following: As part of the Court’s child support finding, the Appellant requested that she be granted the dependency exemptions, but the Court’s Judgment was silent on this point. It is respectfully contended, under the particular facts of this case, that the Court erred in not granting this request of the Appellant. The contention, which cites no law, runs in its entirety to less than a page. The Wife ignores the fact that the United ¹⁰² States Internal Revenue Code (2007), § 152(c)(4)(B)(i) expressly provides that the exemption for a child shall be claimed by “the parent with whom the child resided for the longest period of time during the taxable year.” That would unquestionably be the Husband in this case.

A court order such as one which the Wife may inferentially have suggested in this case, if indeed she did that much, would be, moreover, completely ineffectual. As this Court pointed out in Wassif v. Wassif 77 Md.App. 750, 759 , 551 A.2d 935 (1989), “a court order, standing alone, is ineffective to transfer a dependency exemption to a non-custodial parent.” Only a signed waiver by the custodial parent could accomplish what the Wife wishes to accomplish. As we explained in Wassif 77 Md.App. at 759 , 551 A.2d 935 : By virtue of the Deficit Reduction Act of 1984 ( Pub.L. No. 98-369, 98 Stat. 494), this law was amended to provide that the custodial parent is now always entitled to the exemption unless he or she executes a signed waiver disclaiming the child as an exemption for a given year. IRC § 152(e)(2)(A) (Supp.II, 1984).

Thus, under the new law, a court order, standing alone, is ineffective to transfer a dependence exemption to a non-custodial parent. (Emphasis supplied). Although, as Wassif further pointed out, the court has the power to order the custodial parent, in compelling circumstances, to execute such a waiver, there is no indication that the Wife in this case expressly requested that such a waiver be ordered or that the Wife made a clear and unequivocal argument to Judge Silkworth in that regard. No such issue was truly before the court.

Attorney’s Fees The Wife contends that her request for attorney’s fees was erroneously denied. Maryland Code, Family Law Article, § 7-107(b) provides: (b) At any point in a proceeding under this title, the court may order either party to pay to the other party an amount ¹⁰³ for the reasonable and necessary expense of prosecuting or defending this proceeding. Subsection (c) then provides that, when considering such an order to pay: (c) Before ordering the payment, the court shall consider: (1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding. In this case, Judge Silkworth engaged in a thorough consideration of “the financial resources and financial needs of both parties,” as he considered separately the questions of 1) the marital award, 2) alimony, and 3) the amount of child support.

In considering the alimony question, Judge Silkworth found with respect to the Wife: Ms. Heger testified that she has established a home in Indiana and is working as a cosmetologist. There is no indication that Ms. Heger is not already wholly self-supporting. ... ... Ms. Heger has already demonstrated that she was able to find suitable employment since the parties separated. During the marriage she gained the