Hiltz v. Hiltz

HOTTEN, J. In this divorce action between Gary Hiltz (“Gary”), the appellant-cross-appellee, and Melissa Hiltz (“Melissa”), the appellee-cross-appellant, the Circuit Court for Baltimore ³²¹ County granted the parties a divorce, and granted Melissa indefinite alimony, a monetary award, an equal interest in the marital portion of Gary’s two pensions, 1 and attorneys’ fees. Additionally, the court ordered the marital home be held in trust until its sale and that the proceeds be equally divided between the parties. Finally, the court ordered the sale of the one-third interest the parties maintained in Delaware real property, and that those proceeds be equally distributed between Melissa and Gary. Gary timely noted an appeal to this Court.

In response, Melissa filed a cross-appeal. In sum, both parties presented five questions for our review. We have consolidated, rephrased, and reorganized them as follows: 2 1. Whether the circuit court erred when it determined that Gary was required to present clear and convincing evidence to rebut the presumption that Melissa was permanently disabled and whether it equally abused its discretion in awarding indefinite alimony based on that presumption. 2.

Whether the circuit court erroneously calculated the amount of indefinite alimony awarded to Melissa. ³²² 3. Whether the circuit court erred in granting Melissa a monetary award in the amount of $88,848.50 and additionally erred in its denial of Melissa’s request for a finding of dissipation of marital property. 4. Whether the circuit court abused its discretion in awarding Melissa attorneys’ fees in the amount of $10,000. For the reasons outlined below, we affirm the circuit court’s judgment of divorce.

Because we conclude, however, that the court applied the incorrect standard in its finding of permanent disability, thereby abusing its discretion in awarding indefinite alimony, we shall vacate the remaining judgments and remand the case for further proceedings consistent with this opinion. 3 I. FACTUAL AND PROCEDURAL HISTORY After courting for approximately two years, Melissa and Gary were married in May 1990. The couple moved into a modest townhouse, purchased prior to their nuptials in Baltimore County, Maryland. Gary subsequently adopted Melissa’s son from a previous marriage, named Jonathan Hiltz (“Jonathan”), born in 1986. Jonathan was approximately three and one-half years-old when Melissa and Gary were wed.

At the inception of their marriage, Melissa was working for the American Neurological Association as a medical secretary. She had previously obtained her high school diploma and had ³²³ attended a few community college classes in medical terminology and typing. Nonetheless, both she and Gary decided that Melissa would resign from her full-time employment, and find part-time work closer to home in order to assume the role of primary caretaker and homemaker. 4 Gary ardently believed the decision would better serve the family if she didn’t have to work full-time because she had a little bit more on her at home than [Gary] did ..., [because] she took care of more of the inside of the house[.] [Gary] just felt it would be better for her[,] [because they] had a son .... Instead of putting him in daycare, [Gary] wanted him to be raised by [Melissa and him] instead of some stranger.

In addition to caring for the parties’ son, the home, and working part-time, Melissa managed the family’s financials and did most of its banking. Despite Melissa’s history of fibromyalgia, 5 managed by prescription medications, she lived a fairly active lifestyle. She enjoyed fitness and the outdoors and partook in hiking, swimming and exercise videos. Further, she would take their son, Jonathan, to play laser tag.

Gary, on the other hand, assumed the role of primary financial provider, working as a journeyman electrician and actively participating in the electrical union. ³²⁴ Together, the parties lived a fairly comfortable middle-class lifestyle. Although Melissa and Gary did not particularly worry about their finances, they used their incomes and savings conscientiously. Indeed, the parties satisfied the thirty-year mortgage on their townhouse in less than ten years. Additionally, if Melissa and Gary used credit cards, they would satisfy the debts within a month’s time.

Melissa and Gary “never had outstanding debts[,] and [they] had no car loans.” Nonetheless, Melissa and Gary were able to eat at restaurants several times a week, and Melissa could occasionally go shopping without worry. After satisfying the mortgage on their townhouse, Melissa and Gary purchased a second home in Baltimore County, Maryland for $170,000 cash from Gary’s parents in the summer of 2004. In addition, the parties amassed approximately $200,000 in a joint savings account. Notwithstanding these accomplishments, Melissa and Gary began experiencing problems within the first five years of their marriage.

Specifically, Melissa disapproved of the manner in which Gary disciplined Jonathan for any wrongdoing. At trial, Melissa characterized the early conflict in their marriage as follows: There were a lot of issues. They started pretty shortly after we were married and we moved in as a family. There were issues surrounding our son[,] Jonathan[,] and how he was disciplined.

Gary would get very angry and very upset with any, it seemed like small things that Jonathan would do. Gary would start hollering at [Jonathan,] and he would cry[.] I would step in and ask [Gary] to please control [his] temper ... and he would just turn his anger on me, telling me that Jonathan and I were ganging up on him. As a consequence, Melissa and Jonathan moved out of the marital home for a period of a week, moving in with Melissa’s parents. Following a few telephone conversations, Melissa elected to return to the marital home with Jonathan.

Thereafter, Melissa and Gary sought counseling from their Lutheran pastor. ³²⁵ Unfortunately and shortly after Melissa and Jonathan moved back to the second home in Baltimore County, Melissa suffered a serious back injury in April of 2004. Melissa described the injury during her direct examination at trial: Okay. Well ... I woke up one morning and felt very stiff in my back[,] and I stretched and [ ] overstretched and felt a popping, [and I] had immediate pain[.] [I] was in pain for several days after that[,] and I went to see my doctor who was treating me for fibromyalgia[;] and[,] he ordered MRI’s[.] [I]t showed a ruptured disc in my lumbar back and a ruptured disc in my thoracic, which is my mid-back[.] [The MRI] also [revealed] some spinal stenosis and arthritis in my hips and shoulders and back.

Melissa’s injury exacerbated her fibromyalgia. As a result, Melissa’s ability to engage in the everyday physical activities prior to her injury was severely limited. She could neither play with her son the way she had previously, nor care for the marital home in the same manner she did prior to her injury. According to Melissa, the pain became increasingly unbearable, resulting in Melissa leaving her part-time employment.

As a consequence, Gary suggested to Melissa that she apply for Social Security disability. Melissa’s constant back pain, in addition to the death of both her grandmother and father, caused her to slip into a deep depression. Thus, when Gary came home after a day of work and criticized Melissa for her failure to maintain the home the way she used to and for not preparing his dinner, she resented it. At trial, Gary represented the developing tension between Melissa and he as follows: It started to get a little bad when we moved into ... 5210 k [,] because she started to develop back problems and they prescribed [pain medication] and sleeping pills and muscle relaxersf.

S]he became real sensitive when I would say something to her about cleaning the house. She was letting things go to where she wasn’t cleaning the house like she was before. And I would come home a lot and she would just be laying on the couch. And I mentioned to her that she, I wish I could lay down on the couch all the time.

I ³²⁶ mean, I would come home and she would be on the couch all the time[,] and I finally would say something[ ] because it got to me after a while when the house was getting real messy and she wasn’t cooking for me as much. She would make me wait until 7:00 or 8:00 at night to eat, knowing that I would get home like around 4:00. The arguments between the parties worsened, and Melissa informed Gary that she was leaving in the spring of 2005. Gary, however, prohibited her from leaving the home.

As a result, Melissa telephoned 911 emergency for assistance. Thereafter, she was escorted from the marital home by police. Melissa and her son moved into her mother’s home, located in Dundalk, Baltimore County, Maryland. 6 When she moved out of the marital home, Melissa withdrew approximately $103,000 from the parties’ joint savings account. She believed that taking half of their savings to support herself during the period of their separation was appropriate.

Because Melissa’s mother had moved to Florida, Melissa was responsible for paying for all the utilities associated with her mother’s residence and also for placing food on the table for herself and her, then, nineteen year-old son. Large portions of the money she withdrew, however, would later be used towards efforts to save the family’s dog, to assist Jonathan with his legal troubles, and to partially support Jonathan and her grandchild. After learning that Melissa had withdrawn the funds from their joint savings account, Gary placed the remainder of the monies in a separate account in his name, listing his parents as the beneficiaries. Nonetheless, Gary made efforts to reconcile with Melissa.

He would telephone Melissa—albeit several times a day—and additionally visited Melissa, unannounced, at the Dundalk home. Initially, Melissa rejected Gary’s efforts, advising him to seek psychiatric and psychological care for what she characterized as his anger management problems. Eventually, Gary acquiesced to Melissa’s request. Later, ³²⁷ Melissa and Gary resumed marital relations, and Gary would visit Melissa at her Dundalk address for a period of approximately three years.

In late 2007, Melissa and Gary agreed to fully reconcile their conflicts and that Melissa would return to the marital home. Shortly thereafter, the parties went on a “second honeymoon” to Canada during the winter of 2008. Overall, Melissa and Gary enjoyed the trip, but the conflict between them resumed. The ride home had exacerbated Melissa’s back pain.

Gary ignored her requests to stop and continued driving until the parties reached home. Thereafter, Melissa questioned whether Gary had, indeed, undergone the transformation he had alleged to her. In June of 2008, Melissa left the marital home one final time. At trial, both parties agreed that the circumstances leading to Melissa’s final departure premised on utility bills relating to the Dundalk address.

Gary began arguing with Melissa; and, as a consequence, her mother stepped in to defend her. Melissa briefly described the circumstances which caused her final departure: My mother and her husband were going to come up from Florida to visit. Originally, they were supposed to stay at the Page Drive address, which was where she had been living and my son was living there since I was living at Wilkins Avenue. My son smokes.

They didn’t want to stay at the house because of the smoking[. S]o Gary and I, I talked to Gary and we agreed that they could spend the night, you know, a couple nights with us. And while we were there, several times he had done things, said things to me that my mother didn’t like. I was sick and there was an incident where he was outside trying to change a light on a lamp post outside.

I told him that I was sore, I couldn’t do it. I, my mom went out to do it[,] and he came in and was mad at me and why, you know, you can’t do that, you should be able to do that. The final thing was, I had some mail that had come in from the Page Drive address. He knew I was still paying the bills at Page Drive [the Dundalk address] and he tried to take the bill from me.

I didn’t ³²⁸ want him to take the bill. We got into an argument over that[,] and he started again hollering at me and, you know, doing what he normally did, being berating and name calling[;] and my mother came out[,] and she just stepped in, just like I had done with, you know, Jonathan, now she’s doing it with her child. She stepped in and told him not to talk to me that way[,] and he got angry at her and told her to get out[,] and I said, [“]It’s okay, Mom, you know, go[,] and I’m going to go with you[.”] [A]nd that was when I left. Thereafter, Melissa moved back into the Dundalk residence, where she would remain for an additional two years before subsequently filing her complaint for absolute divorce on July 14, 2010.

After a two day trial commencing on July 25, 2011, the circuit court issued its oral opinion on August 4, 2011. The court granted a judgment of divorce and granted Melissa indefinite alimony, a monetary award, an equal interest in the marital portion of Gary’s two pensions, 7 and attorneys’ fees. In addition, the court further ordered the marital home be held in trust until its sale and that the proceeds be equally divided between the parties. Finally, the court ordered the sale of the one-third interest the parties maintained in Delaware real property and that the proceeds be equally distributed between Melissa and Gary.

Thereafter, Gary filed a motion for new trial on August 12, 2011. He argued that the circuit court’s finding of disability was erroneous because it contravened the weight of the evidence presented at trial. While Gary’s motion was pending before the circuit court, he noted an appeal to this Court on September 2, 2011. In addition, Gary filed an amended motion for new trial pursuant to Maryland Rule 2-533 on August 19, 2011.

Concomitantly, Melissa filed a petition for contempt of court against Gary for failing to adhere to the circuit court’s judgment of August 16, 2011. She additionally noted her cross-appeal to this Court on September 15, 2011. After reviewing the parties’ petition and ³²⁹ amended motion, and after considering arguments of counsel, the circuit court denied Gary’s amended motion for new trial and sanctioned him with commitment to the Baltimore County Department of Corrections on November 14, 2011. 8 Additional pertinent facts with be provided infra as necessary to resolve the issues presented.

II

DISCUSSION (A) Whether The Circuit Court Abused Its Discretion By Erroneously Finding That Melissa Is Permanently Disabled And By Awarding Melissa Indefinite Alimony. In his first assignment of error, Gary avers that the circuit court erroneously found that Melissa was permanently disabled by relying solely on letters indicating an award of disability benefits and wrongly awarded her indefinite alimony. Specifically, Gary contends that the court, in effect, concluded that Melissa was disabled without evidence to support such a determination and improperly created a higher burden of proof to rebut Melissa’s assertions that she was disabled on the basis of her receipt of social security benefits. He further argues that such a finding “substantially affected” the court’s required consideration of Sections 11—106(b) and (c) of the Family Law Article’s factors within its alimony determination and, thus, resulted in an erroneous award of indefinite alimony.

We agree. (1) Gary’s Contentions Are Properly Preserved For This Court’s Review. Because this Court ordinarily “will not decide any other issue unless it plainly appears by the record to have ³³⁰ been raised in or decided by the trial court[,]” Md. Rule 8-131(a), 9 we preliminarily address the issue of preservation. That the issue appears to be plainly raised in or decided by the court is a matter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice.

Medley v. State, 52 Md.App. 225, 231 , 448 A.2d 363 (1982) (discussing Maryland Rule 8-131(a)’s predecessor, Md. Rule 1085). Thus, when a party fails to draw the court’s attention to a claimed error and the court fails to decide the issue, the party is estopped from obtaining review of the issue on appeal. In that regard, Melissa contends that the court’s disability and indefinite alimony ruling are foreclosed from our review because Gary failed to raise any objection to the admission of two letters documenting an award of disability benefits from the Social Security Administration. As explained, infra, Melissa’s assertions are misconceived.

Therefore, Gary’s contentions that the circuit court erroneously found Melissa permanently disabled and wrongly awarded her indefinite alimony are properly before us for our consideration. To be sure, no objection was raised when Melissa offered into evidence her Social Security Administration notices of disability benefits awards. Gary never quarreled with their admission. Rather, Gary’s contentions are premised on whether Melissa satisfied her burden of proving her permanent and total disability.

These contentions were debated below at great length through the admission of conflicting evidence and argument of counsel. ³³¹ At the close of the two-day trial, Melissa’s counsel argued that an award of Social Security disability benefits to Melissa created a nearly irrebuttable presumption that Melissa was, in fact, disabled, therefore lacking the capacity to work and earn any additional income. Specifically, counsel asserted: Your Honor, this is a case, I think it’s clear that it’s a matter of he said, she said, who’s telling the truth. I mean, according to [Gary], my client is working out during this time and she says she’s not able to hardly clean the house and she’s boxing and she’s riding a bike, doing pushups, etcetera, three times a week at home and at the gym. So their testimonies couldn’t be more diametrically apart than what it is.

I believe my client is a very credible witness. We have an individual here that up until spring of 2004, she was leading a, living a healthy life. They were having problems in their marriage. She got, she hurt her back through no fault of her own.

She got depressed. It got so bad that she was not able to work. She did file for social security disability. [Gary] even encouraged her to do that. She was granted that social security disability.

As you know, the [c]ourt, judicial notice, you have to be totally disabled to be eligible to receive that. She had to go through a whole process, trial and medical records, etcetera. Through that process she was found to be totally disabled. I think [Gary] here is trying to retry that case.

He hasn’t presented any evidence to the contrary. His only evidence is his testimony, which, to me, lacks a lot of credibility, that she’s been able to do all these things. (emphasis added). In response, the circuit court asked both parties if there was any authority supporting Melissa’s assertion that no further evidence of physical or mental impairment was required to support a finding that she was totally and permanently disabled.

The court unequivocally inquired: [Are there] any cases that you can point me to, any Maryland cases that discuss the, the effect of a social security disability finding in a case like, in, in a case like, is ³³² there a presumption of correctness, is there no presumption or correctness, is there, is it simply evidence[?] Thereafter, during the following colloquy, the court expressed concerns regarding the lack of medical evidence to support Melissa’s insistence that she was, indeed, disabled: [Melissa’s counsel]: I don’t— [THE COURT]: Anything on that, anything on those lines? [Melissa’s counsel]: Not that I know of but— [THE COURT]: I mean, because there’s been no medical, there’s been no medical evidence in this case whatsoever. [Melissa’s counsel]: Right. [THE COURT]: On the issue of disability, none. Which, quite frankly, concerns the [c]ourt. There was, there was a lot of, it was questioning by the, by [Melissa] by [Gary] whether he has any information to contradict the fact, the claim that [Melissa] is disabled and he said no, he has no, you know, medical evidence. But it begs the question, in my mind, is where’s the medical testimony or medical evidence that she is disabled, other than the, other than the notice from, the finding from the Social Security Administration? [Melissa’s counsel]: Your Honor— [THE COURT]: So that’s all I have to go on and my question is what weight do I give it? [Melissa’s counsel]: I think you should give it a lot of weight. [THE COURT]: Well, I know but you have, is there any authority to support that position? [Melissa’s counsel]: Your Honor, this has been decided by a [c]ourt, [federal [c]ourt.

I mean, personally, maybe— [THE COURT]: (inaudible) [fjederal [c]ourt, it was done by an agency. [Melissa’s counsel]: Federal agency. I was, I didn’t think we had to re-litigate her disability. [THE COURT]: All right. Well, I don’t know. I mean, that’s why I’m asking you.

You’re saying that you ³³³ don’t, you don’t think you got to re-litigate it so apparently you thought it had the weight of, that it was iron clad. So my question is, are there cases that say that? [Melissa’s counsel]: There may be, Your Honor, I don’t have any right now. [THE COURT]: Okay. All right. [Melissa’s counsel]: I would point out, I said before, I mean her testimony, her credibility. There’s been no evidence contradicting the finding. [THE COURT]: All right. [Melissa’s counsel]: I didn’t think we would have to be in here re-litigating the ins and outs of her disability.

She’s already done that and I, I mean, I would, I don’t have any authority but I think there should be a presumption unless they have contradictory evidence that— [THE COURT]: Well, I understand, I understand you think that there should be a presumption but I’m wondering if there’s any, other than your own opinion, is there any legal authority for it? [Melissa’s counsel]: No— [THE COURT]: Is there a, is there an irrebuttable presumption in statute anywhere, in case law anywhere, other than, other than, it’s a good argumente?] I’m just wondering if there’s any basis for it. [Melissa’s counsel]: Your Honor, I could reach it. I don’t have it now. (emphasis added). Gary’s attorney responded to the circuit court’s inquiry, reaffirming the court’s observation that no medical evidence had been offered by Melissa.

Specifically, his counsel noted: ... Your Honor, as it relates to the point, and I want to emphasize again the issue of medical evidence. We haven’t seen any and that certainly causes concern for the [c]ourt because without a shred of medical evidence, the [c]ourt simply can’t just assume that there’s an indefinite need here which, frankly, I think is, it’s impos ³³⁴ sible for the [c]ourt to, to conclude^ T]hat’s [Melissa’s] responsibility, not our responsibility to prove she’s disabled or not disabled. There is no presumption that she’s disabled.

She needed to be here with evidence in support of her contention and she just didn’t .... ... [I]n terms of alimony, you know, I really thought hard about what would even be an appropriate alimony determination and I think this instance, because she is going to receive a monetary award, I’m going to ask the [c]ourt not to award any alimony at all to start and the reason is this, is that, given the indication of what she can do, I think she is a perfect fit under the social security disability program to work part-time. If you take into consideration, under oath, her financial statement, which she indicates her expenses are $1,000, if you take into consideration that she will get at least $1,000 in social security benefits, even if she worked below the $1,000 and earned $800 a month, let’s just throw that out there, she’s ahead. She’s making $600 a month. What this is going to require her to do though is stop supporting her twenty-four year old son and her grandchild and certainly that’s unfortunate and certainly that’s not a popular position to take because every child wants, every parent wants to help their child, but the reality is [Gary] shouldn’t be on the hook to, to provide support for the other two— ...

I want to raise and point out this idea of reasonableness. The final demand by [Melissa] is indefinite alimony, far beyond what her needs are and a split of everything and don’t worry about that $100,000 I took previously. That is what they’re asking for. So I think that points directly to the reasonableness of [Melissa’s] claim here, whereas, [Gary] had to defend this suit and he’s defending a claim for indefinite alimony despite the fact, that he has never received or he has never seen or no documentation has been introduced which would indicate her medical condi ³³⁵ tion and I think that is unbelievably important in terms of the analysis of the reasonableness of either side and there cause of action ....

(emphasis added). Further affirming his argument, Gary emphasized that ... the burden is on [Melissa]. The burden has always been on [Melissa,] and today is the trial date. Today was the date that any sort of expert would needed [sic] to be here to verify the concerns and the disability or the purported[] disability of [Melissa].

There has been zero medical evidence and I think on that basis, the [c]ourt would be in error to award anything other than short term, if any, alimony whatsoever. (emphasis added). Melissa refuted Gary’s arguments and requested that the court take judicial notice of the Social Security Administration’s determination that she was permanently and totally disabled. Specifically, her counsel noted: I think the [c]ourt can take judicial notice that, well, we do have the documents, we have the documents from the Social Security Administration that has found that she was totally disabled, that there was obviously a process in making that determination.

I think the [c]ourt can take judicial notice, there were probably a lot of medical records submitted at that time. As I stated before, counsel hasn’t provided anything to controvert that. Again, I think it has to do with credibility. I believe my client is very credible.

She’s an honest person, with integrity. I believe that if she can work, she would work. As far as working part-time, I mean, I heard [Gary’s counsel] state the [fjederal statute but I don’t, I don’t, he didn’t actually cite the statute or brought the authority in here so he doesn’t have the actual statute that says that she can work part-time. I think if she could work part-time, she would.

I mean, this is a person who doesn’t choose to be in her condition, particularly as someone who doesn’t have a histo ³³⁶ ry of being a (inaudible) or somebody who is fraudulent, someone who is dishonest .... (emphasis added). In reaching it conclusion, concerning alimony, the circuit court reasoned: ____On the issue of alimony, I will go through the factors as set forth in the Family law Article 11-106. Under ...

Subsection B, the required considerations are as follows. Number one is the ability of the party seeking alimony to be wholly or partly self-supporting and the [c]ourt, actually before even receiving the case from [Melissa’s] counsel, did do some research on its own and I was very interested and brought this up to counsel during the hearing, what the, what the significance is of the award, from the disability award from [the] Social Security Administration and what effect the [c]ourt has to give that. I found no Maryland cases on that point[,] and I did find these New Jersey, series of New Jersey cases and the Jersey cases are Golian v. Golian [ 344 N.J.Super. 337 , 781 A.2d 1112 (Ct.App.Div.2001) ] ... and it was followed by the case of Wasserman v. [Parciasepe, 377 N.J.Super. 191 , 871 A.2d 781 (Ch.2004) ]____And basically what these cases hold and, of course, New Jersey Law is not binding on Maryland but in the absence of any Maryland Appellate decisions, it’s something to look towards. It states that the party who asserts an inability to work due to disability bears the burden of proving disability for purposes of defeating imputation of income but that a Social Security Administration adjudication of disability constitutes a prima faci[e] showing of disability, raises a presumption of disability regarding alimony, counsel fees and property distribution.

Afterwards, the burden shifts to the other party to refute the presumption. The degree of proof needed to overcome a presumption of unemployability as a result of disability as it relates to alimony is clear and convincing evidence. And, in fact, in the second case I cited, the party who was attempting to show, to refute the presumption had brought in a vocational expert ³³⁷ and brought in a, I think a physician, or some, some expert to, to refute the presumptions raised by the disability award. So, in this case, we have an award of disability from [the] [S]ocial [S]ecurity [Administration].

I think, I think these cases are persuasive and the award in this case from [S]ocial [S]ecurity disability, from Social Security indicating a disability, is prim[a] faci[e] evidence of [Melissa’s] inability to work and although there is evidence in the record that, such as the credit card statements that show that [she] does not stay in bed all day as she claims, that she can shop and there’s evidence she can exercise, evidence that she can hike, evidence that she picks up a three year old and changes his diaper, and changes him and the [c]ourt’s observation that she was able to communicate effectively with counsel during these proceedings, take notes, receive notes from her sister who was sitting in the back, in the courtroom, and communicate effectively with counsel without any seeming difficulty. Despite all that, that does not equate to clear and convincing evidence that she can work. In addition, you have the fact, the evidence that, in this case, the, her application for [S]ocial [S]ecurity disability benefits was encouraged and supported by [Gary]. So, for all of those reasons, the [c]ourt finds that the disability award and the inability to, finding clear and convincing evidence to the contrary, supports the fact, supports the finding that ... [Melissa] is dis [sic], you know, unable to work.

So, under factor one, the [c]ourt finds that the party seeking alimony, here [Melissa], is not able or will not be able to be wholly self-supporting and she’ll only be partly self-supporting by virtue of receipt, receiving the disability award of $1,001 a month. (emphasis added). Gary immediately filed a motion for new trial, arguing that the circuit court’s finding of disability was in error because it contravened the weight of the evidence presented at trial. Additionally, Gary argued that the court improperly awarded indefinite alimony premised on the erroneous finding of dis ³³⁸ ability.

An amended copy of that motion was heard by the court on November 10, 2011. Gary averred: ... Your Honor, the other argument we have pertains to the issue of alimony and the idea of disability and this was a point of significant contention at the trial itself. Your Honor, the, the evidence provided by [Melissa] in this case was simply a note that, not a note, excuse me, a, an award by the Social Security Administration that she had been found disabled and that she was entitled to the $1,001 per month.

Other than that, [Melissa] had no testimony or medical evidence to support her disability other than her, her own testimony. If the [c]ourt recalls, during examination or cross-examination, we submitted credit card statements, which indicate she was up and about virtually every day. The [c]ourt noted on the record that he observed [Melissa] assisting counsel during the course of trial. The [c]ourt also noted the various exercises that [Melissa] was also able to, to do and also noted that [Melissa] was able to, able to watch, watch the children, pick up the child, or [her] grandchild, and perform a variety of (inaudible) and also was at one point earning a salary of roughly $17 or $18 an hour.

Despite the mounting contrary evidence to the idea of disability, this [c]ourt found disability solely based upon the determination by the Social Security Administration that she was entitled to ... [disability] benefits. What [Melissa] failed to do in [her] case is to establish whether the, the things she was complaining about here in [c]ourt, was the basis for her social security disability relief. As the [c]ourt’s well aware, one can be awarded social security benefits for a variety of reasons, including potentially alcoholism[,] but we received and you heard absolutely no medical evidence to support that it was because of her medical needs that she, in fact, was disabled. And, Your Honor, when, when this [c]ourt made its determination that she was disabled and, and entitled to indefinite alimony, we believe that the nexus between the justification of indefinite alimony and the nexus between her, in fact, being ³³⁹ disabled was not met in this situation.

And we believe a new trial as to that is, would also be necessary to really determine the idea of ... disability because, frankly, there was insufficient evidence provided at, at trial to, to show that .... (emphasis added). Nevertheless, the circuit court denied Gary’s motion. Since these specific contentions were raised in and decided by the circuit court, the issues are preserved and may be appropriately considered.

See Md. Rule 8-131(a). We therefore turn our attention to the merits of Gary’s contentions. (2) The Circuit Court Applied the Wrong Legal Standard To The Issue of Disability Thereby Abusing Its Discretion In Awarding Indefinite Alimony. Title 42, Section 423 of the United States Code provides for the payment of insurance benefits to persons who have contributed to the Social Security Act’s program and who suffer from a physical or mental disability. 42 U.S.C. § 423 (a)(1)(E) (2004).

Section 423(d)(1) of the Code defines a disability as the “inability to engage in any substantial gainful activity by reason of any medical determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months .... ” 42 U.S.C. § 423 (d)(1)(A) (2004). See also 20 C.F.R. 404.1505 (2012) (providing the basic definition of disability). In addition, Section 423(d) further provides that an individual ... shall be determined to be under a disability only if his [or her] physical or mental impairment[ 10 ] or impairments are of such severity that he [or she] is not only unable to do his [or her] previous work but cannot, considering his [or her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the ³⁴⁰ national economy/ 11 -1 regardless of whether such work exists in the immediate area in which he [or she] lives, or whether a specific job vacancy exists for him [or her], or whether he [or she] would be hired if he [or she] applied for work .... 42 U.S.C. § 423 (d)(2)(A) (2004). 12 In furtherance of this statutory language, the Social Security Administration (“SSA”) outlined a “five-step sequential evaluation process,” to determine an individual’s disability status. 20 C.F.R. § 404.1520 (2012). The first step of the evaluation requires an applicant to demonstrate that he or she is not engaged in substantial gainful activity. 20 C.F.R. § 404.1520 (a)(4)® (2012).

In order to determine whether an employee is performing substantial gainful activity, the SSA ordinarily considers whether the applicant or claimant’s wages generated from work activity exceeds a financial threshold. See 20 C.F.R. § 404.1574 (b)(2) (2012). 13 The monthly threshold amount for non-blind individuals for 2013 is $1,040. See Substantial Gainful Activity, Social Security (Oct. 16, 2012), http://www.ssa.gov/oact/cola/sga.html (last visited on June 14, 2013). 14 Therefore, wages under the monthly maximum are generally not considered substantial gainful activity for purposes of the disability analysis. See 20 C.F.R. § 404.1574 (b)(3)® (2012).

Thus, an applicant or claimant is ³⁴¹ able to work so long as he or she does not surpass the monthly maximum amount of additional work-related earnings. See 20 C.F.R. § 404.1520 (b) (2010). That the SSA does not preclude disability insurance claimants from engaging in any work-related activity is an extremely relevant financial point in the present case. While an extra $1,040 per month may not be considered “substantial gainful activity” pursuant to the SSA’s regulations, “such additional income can potentially be a vital financial resource” that must be factored into the circuit court’s determination of the amount and duration of alimony, pursuant to Md.Code (1984, 2012 RepLVol.), § 11-106 et seq. of the Family Law Article. 15 ³⁴² Cf.

Gilligan v. Gilligan, 428 N.J.Super. 69 , 50 A.3d 110, 117 (Ch.2012). Consequently, we are called in this instance of first impression to determine whether an SSA disability award letter, by itself, and the proponent’s own testimony regarding his or her impairment, are prima facie evidence that the proponent is, in fact, unable to earn any income through work-related activity because he or she maintains a permanent and total disability. We hold that they are not. 16 We acknowledge that the severity of a disability may preclude an individual from working and earning an income, even below the SSA’s “substantial gainful activity” threshold of $1,040 per month. Nonetheless, there are other social security disability recipients who maintain the ability to work part-time and earn at least some additional funds, however marginal, up to the substantial gainful activity threshold without losing their disability status.

Accordingly, no rational basis ³⁴³ exists to support an automatic finding that every social security disability recipient completely lacks the capacity to work or earn any income in the absence of the opposing party’s ability to produce clear and convincing evidence to the contrary. Therefore, the burden of proving such a disability logically remains with the party alleging the disability. To be sure, an evaluation of our sister jurisdictions encountering the issue raised in the case sub judice demonstrates that a majority have concluded similarly. Knope v. Knope, 103 A.D.3d 1256 , 959 N.Y.S.2d 784, 786 (2013) (concluding that “ ‘[a] decision of the Social Security Administration [may serve] as some evidence’ of a disability, but it is not prima facie evidence thereof’) (citation omitted); Gilligan v. Gilligan, 428 N.J.Super. 69 , 50 A.3d 110, 112 (Ch.2012) (holding that a Social Security Administration disability award is not “automatically sufficient for the family court to conclude that the party cannot work in any capacity or earn any income” and that a “party must provide more evidence to the court than simply the [disability] award letter itself to prove his or her case.”); In re Marriage of Smith, 2012 IL App (2d) 110522 , 367 Ill.Dec. 435 , 981 N.E.2d 1163, 1165, 1172-73 (2012) (determining that even if the parties stipulate that one is “disabled and receiving Social Security benefits” it does not preclude the court from finding that the party claiming the disability is not permanently disabled and incapable of being employed in some capacity); Lucas v. Lucas, 88 Conn.App. 246 , 869 A.2d 239, 250 (2005) (“A finding by the Social Security Administration that the [party] is disabled for purposes of social security disability benefits does not preempt a court from making its own independent determination concerning the defendant’s ability to work[,]” when no “credible evidence” of disability or the lack of ability to earn income was offered); Tevolini v. Tevolini, 66 Conn.App. 16 , 783 A.2d 1157, 1164, 1166 (2001) (noting that the claimant offered no evidence of her disability other than receipt of her social security disability benefits and her testimony, and ultimately concluding that “it was incumbent on her to offer pertinent evidence to support her position.”); Wilde v. Wilde, 35 P.3d 341, 348 (Utah ³⁴⁴ Ct.App.2001) (observing that an SSA determination alone does not establish that the allegedly disabled party was unable to contribute to her own support).

But see Barnes v. Ivy, 353 S.W.3d 324, 333 (Ky.2011) (holding that a court is not free to disregard the Social Security Administration’s determination that a party is disabled and that if child support is to be demanded from the disability beneficiary “there must be evidence clearly establishing the recipient’s ability to work or the recipient’s ability to afford the support payment.”); Kronforst v. Kronforst, 21 Wis.2d 54 , 123 N.W.2d 528, 534 (1963) (noting briefly that a “presumption exists that the [SSA] would not have certified a fifty-two year old [man] for disability benefits unless he had met the conditions specified in the foregoing definition[,]” therefore making his present disability indefinite in duration). We do not foreclose the possibility, however, of instances where the party alleging the disability and inability to work is readily apparent, without the need for expert testimony and extensive medical reports. But such apparent impairment is not present in the instant case. Indeed, the circuit court expressed doubts regarding the extent of Melissa’s impairment: ... [T]here is evidence in the record that, such as the credit card statements that show that [she] does not stay in bed all day as she claims, that she can shop and there is evidence she can exercise, evidence that she can hike, evidence that she picks up a three year old and changes his diaper, and changes him and the [c]ourt’s observation that she was able to communicate effectively with counsel during these proceedings, take notes, receive note from her sister who was sitting in the back, in the courtroom, and communicate effectively with counsel without any seeming difficulty ....

Further, the SSA letters Melissa submitted to the circuit court provided no insight regarding the nature, extent, severity, or permanence of her