Jensen v. Jensen

HOLLANDER, Judge. A Petition to Reinstate Alimony (the “Petition”), filed by appellant Patricia Jensen in the Circuit Court for Baltimore County, has spawned this appeal. Appellant’s Petition was based on a 1975 order reserving jurisdiction over alimony. Until 1993, Ms. Jensen never instituted any proceedings asking the court to revisit the 1975 Order.

Relying on the case of Turrisi v. Sanzaro, 308 Md. 515 , 520 A.2d 1080 (1987), the trial court rejected Ms. Jensen’s Petition; the court determined that, notwithstanding the reservation, Ms. Jensen is not entitled to reinstatement of alimony payments from her exhusband, appellee John Jensen, from whom Ms. Jensen was divorced in 1970. For the reasons discussed below, we shall reverse and remand for further proceedings. Factual Background The first round of proceedings in this case dates from 1969 through 1976. Unfortunately, the record, including all hearing ⁶⁸² transcripts, is missing.

But for the purposes of this appeal, the facts are essentially undisputed. A. The Original Proceedings Mr. and Ms. Jensen married on June 13, 1952. The couple had two children, born in 1961 and 1962. Mr. Jensen worked as an aircraft mechanic, a job he has held intermittently to the present time.

For the first nine years of the marriage, Ms. Jensen worked as a secretary for various law firms, but ceased working upon the birth of their first child. Ms. Jensen had long suffered from various medical and emotional maladies, including epilepsy and alcoholism. In 1968, she suffered a nervous breakdown, which required brief hospitalization. Ultimately, the couple was granted a divorce on December 7, 1970.

In the Decree of Divorce, the trial court ordered, inter alia, that Mr. Jensen pay Ms. Jensen permanent alimony of $30 per week, and expressly provided that the award of permanent alimony, among other things, was “subject to the further order of this Court.” In the following three years, the parties continued to litigate issues as to alimony arrearages, custody, and visitation. In 1972, Ms. Jensen began working as a secretary for the State of Maryland, earning an annual salary over $7,000. Mr. Jensen, meanwhile, had been earning about $11,000 annually. On August 27, 1973, Mr. Jensen filed a petition for a decrease in alimony and hearings were held on March 27, 1975 and October 1, 1975.

On October 2, 1975, after the final hearing but before the circuit court filed its written order, Ms. Jensen wrote a letter to the Chancellor, in which she said that she was “unable to understand nor accept without better explanation than [she had] been given by ... counsel the reported decision to eliminate alimony payments.... ” In response, the Chancellor wrote Ms. Jensen the following letter: By the Order which will be submitted to me for signature, and which was agreed upon in open Court several days ago, ⁶⁸³ the question of alimony, so far as you are concerned, will be reserved. However, there will be no provision for alimony at the present time because of the fact that, considering support for the children, you are making just as much if not more money than Mr. Jensen. (Emphasis added). 1 On October 14, 1975, the circuit court issued an order (the “1975 Order”) stating, in pertinent part, as follows: IT IS FURTHER ORDERED that the Decree of December 7,1970 relative to the payment of permanent alimony by the Plaintiff, John G. Jensen, unto the Defendant Patricia Donnelly Jensen, is hereby modified to the extent that said Plaintiff, John G. Jensen shall not be required to pay alimony unto the Defendant, Patricia Donnelly Jensen, said modification to be effective as of the 14th day of October, 1975, and IT IS FURTHER ORDERED that the right of the Defendant, Patricia Donnelly Jensen, to alimony is hereby reserved, and IT IS FURTHER ORDERED that this Court shall retain jurisdiction over the parties to and the subject matters of this cause and shall pass such Orders in the future as the circumstances may then warrant. (Emphasis added).

In an unpublished opinion filed May 26, 1976, this Court affirmed the 1975 Order. Jensen v. Jensen, No. 1074 (Ct.Sp.App. May 26, 1976). B. The Present Proceedings In February, 1987, Ms. Jensen fell at work and was injured. She received worker’s compensation benefits but those benefits terminated after two years.

Ms. Jensen claims that she ⁶⁸⁴ has been unable to continue working for the State. She avers that, since the injury, she has subsisted on disability assistance, food stamps, and less than 20 hours per week in part-time work. She applied for other Social Security benefits but did not receive a response for several years. Unable to pay her continuing medical expenses, Ms. Jensen filed for bankruptcy protection in 1992.

On February 8, 1993, seventeen years after the circuit court’s 1975 Order terminating alimony, Ms. Jensen filed her Petition. She alleged a drastic change in circumstances and claimed that “she [was] no longer able to support herself.” On September 27, 1993, a hearing was held before a domestic relations master concerning the Petition. The Master declined to resolve Mr. Jensen’s legal argument that Ms. Jensen was precluded, as a matter of law, from seeking alimony. Instead, the Master proceeded to the merits of the Petition and heard testimony from the parties as to their present circumstances.

Mr. Jensen testified that he was then earning $35,000 annually. In stark contrast, Ms. Jensen said she received $7,560 annually, including public assistance funds. Both parties testified extensively as to their respective health problems. On September 27, 1993, the Master filed her Findings of Fact and Recommendation.

She recommended that Mr. Jensen pay $250 per month of indefinite alimony, retroactive to July, 1993, reduced by whatever amount Ms. Jensen ultimately receives from Social Security. Mr. Jensen filed exceptions, which were heard by the circuit court on November 23, 1993. As a preliminary matter, the court limited the parties’ arguments to the question of whether, notwithstanding the reservation, Ms. Jensen was precluded as a matter of law from seeking alimony seventeen years after alimony had been terminated. Both parties agreed that the Alimony Act of 1980 (the “Alimony Act”), 1980 Md.Laws 2057, does not govern the 1975 Order.

Further, both parties cited Turrisi v. Sanzaro, 308 Md. 515 , 520 A.2d 1080 (1987), as support for their respective positions. Mr. Jensen argued that Turrisi recog ⁶⁸⁵ nized the fact that it has never been appropriate to reserve alimony based on some vague, future expectation of a change in circumstances; rather, chancellors could only reserve based on contingencies that were reasonably foreseeable and could only reinstate alimony for reasons that were foreseeable. Ms. Jensen noted that the holding of Turrisi specifically addressed only the issue of whether the Alimony Act had abrogated the circuit court’s ability to reserve. She cited the history of the Alimony Act, as recounted in Turrisi , to contrast the present law of alimony with the law prior to 1980.

After the conclusion of legal argument, the Chancellor declined to allow the parties to reach the issues actually considered by the Master. The court said: I want to address solely, from the beginning, the issue of whether or not a reservation of seventeen years is appropriate. If I find that it was, then I’ll hear you on the other issues. But right now I want to address that issue.

I’ll take it sub curia on the narrow issue of whether or not you can come back after seventeen years and revive a reservation of alimony. (Emphasis added). On December 20, 1993, the Chancellor issued an order granting Mr. Jensen’s exceptions. The court was concerned that an award of alimony seventeen years after the 1975 Order, premised on changes in circumstances that apparently were unforeseeable in 1975, would effectively convert alimony “into a form of disability insurance.” The Chancellor stated, in pertinent part: There is nothing to indicate the trial judge’s reasons for making the reservation [in 1975].

Perhaps the Petitioner’s recitation of her medical and mental problems prior to the 1975 modification and reservation contained in her current testimony before the Master persuaded the court in 1975 that, should these conditions recur, the reinstatement might be appropriate. Assuming that is so, in the absence of any other indications for reserving alimony, that is not why Petitioner seeks reinstatement. Her compensable accident ⁶⁸⁶ in 1987, and her resulting disability were not “foreseeable” in 1975. As alluded to in Turrisi, [ 308 Md. at 528-29 , 520 A.2d 1080 ], to hold otherwise would turn reserved alimony into a form of disability insurance.

(Emphasis added). Issues Presented Ms. Jensen presents two questions for our review: 1. “Did the Circuit Court err in finding as a matter of law that Appellant Patricia Donnelly Jensen could not seek alimony in a petition filed in 1993 and based on a reservation of jurisdiction regarding alimony in a 1975 Order?” 2. “If Appellant may seek alimony at this time, did she demonstrate her entitlement to alimony, at the hearing before the Master, sufficient to require a remand to the Circuit Court for consideration by the Court of that issue?” Mr. Jensen contends that this case presents but a single issue: “Whether the Chancellor’s judgment to deny alimony after more than 17 years under the facts of this case, after giving consideration to the Recommendations of the Master and exercising his independent judgment, was an arbitrary abuse of discretion or clearly wrong.” We hold that the circuit court erred in concluding that, as a matter of law, Ms. Jensen was not entitled to pursue her claim for alimony. The trial court erroneously found that appellant could not base her Petition on events that had occurred long after the reservation of jurisdiction and that were unforeseeable at the time of reservation. The Standard of Review As a threshold matter, we note that the standard of review of the Chancellor’s decision turns on the nature of his decision.

If the Chancellor exercised discretion to deny alimony based on the facts of the case, then the decision ordinarily would not be disturbed unless the exercise of discretion was “arbitrarily used” or the decision was “clearly wrong.” Tra ⁶⁸⁷ cey v. Tracey, 328 Md. 380, 388 , 614 A.2d 590 (1992); Brodak v. Brodak, 294 Md. 10, 28-29 , 447 A.2d 847 (1982). If, on the other hand, the Chancellor limited his decision to a narrow issue of law, such as whether Ms. Jensen could revive alimony based on changes in circumstances that were unforeseeable in 1975, then the decision is not entitled to any deference. Rohrbaugh v. Estate of Stern, 305 Md. 443 , 446 n. 2, 505 A.2d 113 (1986). The court clearly expressed a desire to limit the decision to the “narrow issue of whether or not you can come back after seventeen years and revive a reservation of alimony.” Moreover, the court refused to permit the parties to discuss the facts at the hearing and told the parties they would return to address the facts should the court find that Ms. Jensen was legally entitled to petition for alimony.

From this, it is clear to us that the trial court never considered the facts found by the Master and, instead, limited his decision to the legal issue presented. We shall review his decision accordingly. Discussion In the 1975 Order, the court unequivocally reserved jurisdiction as to alimony. The parties agree here, as they did below, that the 1975 Order is governed by the substantive law that was in effect prior to the enactment of the Alimony Act.

Similarly, Ms. Jensen’s Petition, which is based on the 1975 Order, must be analyzed and considered based on the law in effect at the time of the 1975 Order; the Alimony Act expressly affects only those cases filed after the effective date. Young v. Young, 61 Md.App. 103, 107-09 , 484 A.2d 1054 (1984) (petition, filed in 1982, requesting modification of alimony order that had been issued prior to effective date of Alimony Act, is not governed by Alimony Act) (citing Athanason v. Athanason, 48 Md.App. 231 , 426 A.2d 16 (1981)). Under pre-1980 law, the authority to grant alimony was ⁶⁸⁸ codified at Md.Code of 1957, Art. 16, §§ 2-3 (1973). 2 Alimony was defined as “a money allowance payable under a judicial decree by a husband at stated intervals to his wife, or former wife, during their joint lives or until the remarriage of the wife, so long as they live separately, for her support and maintenance.” Simpson v. Simpson, 18 Md.App. 626, 628 , 308 A.2d 410 (1973) (citing Knabe v. Knabe, 176 Md. 606 , 6 A.2d 366 (1939)). 3 See generally, Thomas v. Thomas, 294 Md. 605, 609-15 , 451 A.2d 1215 (1982) (expanding on history of alimony recounted in Thomas v. Thomas, 48 Md.App. 255, 261-67 , 426 A.2d 976 (1981)). While the power to grant alimony was based on statute, the statute did not provide guidance as to the criteria to be used. 4 The standards by which a chancellor was to exercise discretion in awarding alimony were established judicially, rather than statutorily. 5 Turrisi, 308 Md. at 524 , 520 A.2d 1080 .

In Lopez v. Lopez, 206 Md. 509, 520 , 112 A.2d 466 (1955), the Court said: In determining an award of alimony in a suit for divorce, the court has no precise rule or standard