John O. v. Jane O.

ROSALYN B. BELL, Judge. John and Jane O. 1 were married on April 13, 1963. One child was born of the marriage and was emancipated at the time of these proceedings. They also adopted a son, who at the time of trial was 13 years of age.

The parties separated on November 29,1987. On April 15,1988, the Circuit Court for Harford County entered a pendente lite order awarding Ms. O. custody of the minor child and exclusive use and possession of the family home and family use personal property located therein. Trial was held in the Circuit Court for Harford County on July 11-13, 1990. On March 27, 1991, the court issued a judgment which granted the parties an absolute divorce and awarded Ms. O. use and possession of the family home for an additional three years, plus sole custody of the parties’ minor child.

As of that date, Ms. O. was in possession of the family home by virtue of the pendente lite order of April 15, 1988. In the same judgment, the court also limited Mr. O.’s visitation with the child to “reasonable periods of time during the child’s summer vacation and on holidays provided, however, that he shall not be permitted overnight visitation at this time.” Limitation on overnight visitation was imposed due to a report by the child that Mr. ⁴¹¹ O. had touched him in an inappropriate manner during one of the child’s previous overnight visits. Also taken into consideration by the court was a psychological evaluation in connection with a charge against Mr. O. in 1982 of perverted practice which was the result of an incident involving a 15 year-old boy. Although the conviction was reversed on appeal, the charge will be discussed later in this opinion.

In addition to the limited visitation, the court ordered Mr. O. to pay Ms. O. a monthly sum equal to the amount of the second mortgage on the family home; ordered that each party retain the personal property in their possession; ordered Mr. O. to pay Ms. O. the sum of $324 per month as child support; ordered Mr. O. to pay $582.50 in attorney’s fees to the child’s attorney; denied Mr. O. a monetary award; and denied both parties their request for counsel fees. Mr. O. has appealed, contending the trial court erred in —passing a second order which extended Ms. O.’s use and possession of the family home and family use personal property for three years, when two years and 11 months earlier, the court granted her the exact same relief, pendente lite; —failing to consider the factors enumerated in Md.Fam. Law Code Ann. § 8-208(b) (1984, 1990 Cum.Supp.), when it granted Ms. O. use and possession of the family home and family use personal property; —ordering Mr. O. to pay child support based on his “potential income,” when there was no evidence that he had voluntarily impoverished himself; —denying Mr. O. a monetary award, pursuant to Md. Fam.Law Code Ann. § 8-205 (1984, 1990 Cum.Supp.); —denying Mr. O. overnight visitation with the parties’ minor child based on the “totality of the allegations” against Mr. O. when it made no finding that any of these allegations had merit; and —finding the interests of the child on the issue of custody were properly represented by the child’s court-appoint ⁴¹² ed attorney who was not present at trial for the taking of evidence and who requested that the court disregard the child’s own stated wishes. We will affirm on all issues except those based on voluntary impoverishment.

We will remand for further proceedings to allow the trial court to find or decline to find whether Mr. O. was voluntarily impoverished. USE AND POSSESSION OF FAMILY HOME AND FAMILY USE PERSONAL PROPERTY Mr. O. claims that Ms. O. was awarded use of the family home and family use personal property, pendente lite, in an order dated April 25, 1988. He argues that, under the language of Md.Fam.Law Code Ann. Title 8 (1984, 1991 Repl.Vol.), the court cannot, as a part of its final judgment on March 27, 1991, grant Ms. O. use and possession of the family home and family use personal property for an additional three years. He states that the terms of the statute limit use and possession orders to a total of three years under any circumstances.

Mr. O. claims that Ms. O. is not entitled to remain in the family home for an additional three years because she had occupied the family home for two years and 11 months under the pendente lite order. Mr. O.’s concern with the family use personal property is unwarranted since the order of March 27, 1991 made no reference to a use and possession order of the family use personal property, which had already been divided by the parties. This does, however, leave the use and possession of the family home at issue. Mr. O. contends thát for two reasons the trial judge abused his discretion in granting a second use and possession order.

First, he argues that Md.Fam.Law Code Ann. § 8-210(c) prohibits the court from issuing a second use and possession order upon the termination of a prior order, regardless of that prior order’s duration. Second, Mr. O. claims that the court has no authority to award use and possession of a family home for more than a three-year period. ⁴¹³ —The Second Use and Possession Order Under § 8-210(c)— Mr. O. reads § 8-210(c) to mean that the court may never issue a second use and possession order for the family home. He interprets § 8-210(c) to mean that, once the first use and possession order terminates, the court must classify the home as marital property and consider it in making a monetary award. He claims the court has no other option and bolsters his position by pointing to § 8-209, which limits use and possession orders to the terms, conditions and time constraints set by the court.

We find Mr. O.’s interpretation of the statute unduly restrictive and not in keeping with its purpose. Section 8-210(c) provides in pertinent part: “(c) Treatment of Property. — When a provision that concerns the family home or family use personal property terminates, the court shall treat the property as marital property if the property qualifies as marital property, and adjust the equities and rights of the parties concerning the property as set out in § 8-205 of this subtitle.” Mr. O. points us to no legislative history or case law to support his position. He would have us read § 8-210(c) in a vacuum and without regard to § 8-208, which specifies: “(a) Award of possession and use. — (1) When the court grants an annulment or a limited or absolute divorce, regardless of how the family home or family use personal property is titled, owned, or leased, the court may: (i) decide that 1 of the parties shall have the sole possession and use of that property; or (ii) divide the possession and use of the property between the parties. “(2) The court may exercise these powers pendente lite.” (Emphasis added.) Section 8-208 is part of subtitle 2 entitled “Property Disposition in Annulment and Divorce.” The purpose of ⁴¹⁴ subtitle 2 is set forth in § 8-206, “Family home; family use personal property — Legislative policy” which provides: “The court shall exercise its powers under §§ 8-207 through 8-213 of this subtitle: (1) to enable any child of the family to continue to live in the environment and community that are familiar to the child; and (2) to provide for the continued occupancy of the family home and possession and use of family use personal property by a party with custody of a child who has a need to live in that home.” Mr. O. would have us read § 8-208 to limit the power of the court to a shorter period than the three years permitted, if a pendente lite order has been issued prior to the granting of a final divorce decree. This would arbitrarily frustrate the avowed purpose of the statute and the three-year period permitted under § 8-210(a).

Section 8-208 cannot, under any possible construction, be read to mean that, if the court makes a use and possession award pendente lite, a final decree terminates that award and no further use and possession order is possible. Under Mr.' O.’s interpretation, if the parties separate and a pendente lite order for use and possession is granted and the divorce follows, it would not matter how long the custodial spouse and child had been in the home following separation. The result under Mr. O.’s construction of the statute would be that, even if the custodial spouse and child had been in the home for only a day under a pendente lite use and possession order, the court would have no authority to continue their right to remain in the home. Such an interpretation of § 8-210(c) is utterly inconsistent with the legislative policy set forth in § 8-206. —Three-Year Limit— Section 8-210 was originally codified in Md.Cts & Jud.Proc.Code Ann. §§ 3-603 to 3-6A-07 (1974, 1979 Cum.

Supp.). Section 3-6A-06 covered the disposition of the family home in a divorce case. The three-year limitation ⁴¹⁵ imposed after granting of a limited or absolute divorce or an annulment was added by amendment prior to the passage of the Act governing Property Disposition in Annulment and Divorce, but did not appear in the original draft. The Preamble to the Act, S.B. 604, ch. 794 at 2304, 1978 Md.Laws states: “The General Assembly declares further that it is the policy of this State that when a marriage is dissolved the property interests of the spouses should be adjusted fairly and equitably, with careful considerations being given to both monetary and nonmonetary contributions made by the respective spouses to the well-being of the family, and further, that if there are minor children in the family their interests must be given particular and favorable attention.” Thus, the primary purpose of the Legislature was to provide for the well-being of the minor child, not to set strict time limits on use and possession.

When the court’s final order is tacked on to the court’s pendente lite order, there is little doubt that Ms. O. and the minor child may occupy the marital home for more than three years. Mr. O. contends that this is error. He argues that the court’s power to award use and possession of the family home is limited to a total of three years, even if the award is made under two separate orders. Mr. O. cites no statutory authority for his proposition; instead, he relies on case law in his brief, stating: “See e.g., Hughes v. Hughes, 80 Md.App. 216, 227 [ 560 A.2d 1145 ] (1989) (‘[A] use and possession order is limited in duration to three years ...’); Barr v. Barr, 58 Md. App. 569, 584-85, 586 [ 473 A.2d 1300 ] (1984) (citing the ‘three year maximum period of use and occupance of the family home permitted by Cts.

Art., § 3-6A-06(e), [now Fam.Law Code Ann., § 8-210(a)],’ and the ‘full three years’ for which a court may award use and possession).” (Brackets in original.) Mr. O.’s reference to Hughes is inapposite. The quote attributed to Hughes appears in a context which clearly ⁴¹⁶ refers to a three-year limitation following a divorce. Hughes did not even involve a pendente lite order predating a divorce. Hughes involved a noncustodial parent who had provided premarital funds toward the purchase of the family home and wished to protect his interest.

In Hughes , however, we reiterated that “if there are minor children in the family their interests must be given particular and favorable attention.” Hughes, 80 Md.App. at 225 , 560 A.2d 1145 . Mr. O.’s reference to Barr is even less pertinent. Maryland Cts. & Jud.Proc.Code Ann. § 3-6A-06(e) (1974, 1984 RepLVol.), which Barr referred to and which is the predecessor to Md.Fam.Law Code Ann. § 8-210(a), provided: “(e) Any provision in any temporary or final order or decree concerning the family home or family use personal property is subject to the terms and conditions and limited to the period of time specified by the court, and is subject to modification or dissolution by the court, as the circumstances and justice may require. However, any such order or decree or any modification thereof concerning the family home or family use personal property shall be made for a time period not to exceed 3 years from the date of the granting of the limited or absolute divorce, or annulment.

Nevertheless, if the provision concerning the family home or family use personal property is a part of an order or decree incident to a divorce a mensa et thoro, the provision may not subsequently be extended for an additional period of time as part of an order or decree incident to a divorce a vinculo matrimonii.” Thus, the three-year period begins to run from the “granting of the limited or absolute divorce or annulment.” The sole limitation on the court in granting use and possession for three years is whether a prior use and possession order had been entered as part of a limited divorce. Under those circumstances, the prior order could not be extended for an additional three years as a part of a later decree for an absolute divorce. If the Legislature had intended to limit the use and possession order to three years in all cases — as ⁴¹⁷ it effectively did in an absolute divorce following a limited divorce — it would have specifically set that limitation in § 8-210(a). 2 Section 8-210(a) does not contain such a limitation and we will not interpret the statute in this fashion. FACTORS ENUMERATED IN § 8-208(b) Mr. O. next complains that the trial court failed to consider the factors set forth in § 8-208(b) in making its award for use and possession of the family home and family use personal property. 3 Subsection (b) of § 8-208 provides the court with instructions for making a use and possession determination: “(b) Required considerations. — In awarding the possession and use of the family home and family use personal property, the court shall consider each of the following factors: (1) the best interests of any child; (2) the interest of each party in continuing: (i) to use the family use personal property or any part of it, or to occupy or use the family home or any part of it as a dwelling place; or (ii) to use the family use personal property or any part of it, or to occupy or use the family home or any part of it for the production of income; and (3) any hardship imposed on the party whose interest in the family home or family use personal property is infringed on by an order issued under §§ 8-207 through 8-213 of this subtitle.” In the instant case, the judge specifically found that awarding a use and possession order to Ms. O. would be in ⁴¹⁸ the child’s best interests, thus addressing § 8-208(b)(l).

The court also found that Mr. O.’s immediate plans were to move to California and that Ms. O. was seeking permission to continue to reside in the home. These factual findings indicate that the trial judge considered the interests of each party in continuing to use the family home, thus satisfying § 8-208(b)(2)(i). No evidence was presented by either side concerning § 8 — 208(b)(2)(ii) as neither party utilized or sought to utilize the property for production of income. The final element of the § 8-208(b) analysis — namely, hardship — was also addressed by the court.

Mr. O. simply does not like the court’s conclusion. The court noted that Mr. O.’s only significant complaint with respect to the use and possession issue concerned “his ability to continue to make payments toward the home or for child support because of his financial situation.” 4 The court considered Mr. O.’s financial situation and concluded that he was well educated and was freely choosing to move to California, where he had no firm promise of employment. Depriving Mr. O. of his equity in the house for a few years was not as detrimental as it would have been to force the minor child out of the family home. We addressed this last point in Hughes, 80 Md.App. at 236 , 560 A.2d 1145 , where the noncustodial spouse made an argument similar to the one Mr. O. makes.

We said: ⁴¹⁹ “Although the immediate burden imposed on [the husband] by the court’s order may be significant, it is clear that, given [the wife’s] limited income, her negligible assets, and the fact that she was denied all alimony, the court was faced with a situation where either the children would suffer the loss of both their home and necessary financial support or [the husband] would have to suffer a three year period of strict financial responsibility. We agree with the circuit court that [the husband] rather than the children should bear the strain of the divorce.” In the instant case, the court was not persuaded and granted Ms. O. the use and possession award, a decision which cannot be termed an abuse of discretion. See Hughes, 80 Md.App. at 228-231 , 560 A.2d 1145 . “POTENTIAL INCOME” Mr. O. next contends that the trial court erred in ordering him to pay child support based on his “potential income,” when there was no evidence that he had voluntarily impoverished himself. This contention stems from the fact that the trial court projected Mr. O.’s potential earning capacity in computing his child support obligations.

The court found that Mr. O. was capable of employment, but failed to make a specific finding that he was voluntarily impoverished. We will remand for the court to review the facts and make or decline to make that finding. We will discuss the issue for the judge’s assistance on remand. Maryland Fam.Law Code Ann. Title 12 (1984, 1991 Repl.

Vol.), sets forth a comprehensive scheme for the awarding of child support to a custodial parent. Subtitle 2 of Title 12 provides guidelines for the determination of the amount of child support. There is a “rebuttable presumption that the amount of child support which would result from the application of the child support guidelines set forth in this subtitle is the correct amount of child support to be awarded.” § 12-202(a)(2)(i). Crucial to the determination of the child support award is the “actual adjusted income” of each ⁴²⁰ party.

A determination of the actual adjusted income is based in large measure on each of the parties’ actual income. “Actual income” is defined as “income from any source.” § 12-201(c)(l). Income is defined in § 12-201(b): “(b) Income. — ‘Income’ means: (1) actual income of a parent, if the parent is employed to full capacity; or (2) potential income of a parent, if the parent is voluntarily impoverished.” Thus, § 12-201(b)(2) instructs that a parent’s potential income is to be considered “if the parent is voluntarily impoverished.” In the instant case, the trial judge made a finding of what Mr. O.’s potential income would be, but failed to make the necessary predicate finding that Mr. O. was voluntarily impoverished. Neither the Legislature in the statute, nor the courts in the existing case law, have clearly defined what “employed to full capacity” or “voluntarily impoverished” mean. There is no clear definition in any of the Maryland resource materials we consulted. 5 Thus, in order to understand what the term “voluntarily impoverished” means, we must extrapolate from the definitions of the words “voluntarily” and “impoverished.” According to Black’s Law Dictionary 1413 (5th ed. 1979), “voluntarily” or “voluntary” means “[d]one by design or intention; [proceeding from the free and unrestrained will of the person; [produced in or by an act of choice____” “Impoverished” or “impoverish” is defined as “to make poor; reduce to poverty or to deprive of strength, resources, etc.” Webster’s New World Dictionary of the American Language 706 (2d ⁴²¹ College ed. 1979).

Therefore, in the context of a divorce proceeding, the term “voluntarily impoverished” means: freely, or by an act of choice, to reduce oneself to poverty or deprive oneself of resources with the intention of avoiding child support or spousal obligations. 6 The Maryland courts have taken a variety of facts into consideration to determine whether parents have voluntarily impoverished themselves to avoid their support obligations. For example, in Colburn v. Colburn, 15 Md.App. 503, 510-11 , 292 A.2d 121 (1972), which was decided prior to the passage of § 12-201, this Court examined an award of alimony to be paid by a husband who resigned as president of his company, claiming ill health; relinquished an annual salary of just under $50,000 for a $10,400 salary as an advisor, while actually continuing to run the company; divested himself of assets by transferring his company stock worth $200,000 to his nephew for one dollar; and by allowing all the corporation’s profits to accumulate with no dividend distribution. We upheld the findings of the chancellor that the husband had voluntarily impoverished himself to deprive his wife of her claim for alimony, and the chancellor’s subsequent award to the wife based on the husband’s earning capacity, or potential income, as opposed to his actual income. Colburn, 15 Md.App. at 516 , 292 A.2d 121 .

See also Chalkley v. Chalkley, 240 Md. 743, 744 , 215 ⁴²² A.2d 807 (1965); Kapneck v. Kapneck, 235 Md. 366, 368 , 201 A.2d 798 (1964). Some of the factors to be considered in determining whether a party is voluntarily impoverished include: (1) his or her current physical condition; (2) his or her respective level of education; (3) the timing of any change in employment or other financial circumstances relative to the divorce proceedings; (4) the relationship between the parties prior to the initiation of divorce proceedings; (5) his or her efforts to find and retain employment; (6) his or her efforts to secure retraining if that is needed; (7) whether he or she has ever withheld support; (8) his or her past work history; (9) the area in which the parties live and the status of the job market there; and (10) any other considerations presented by either party. In the instant case, the court found: “[Ms. 0.] has also requested child support in the present case. As has been outlined above, [Mr. O.’s] financial situation is at the very least uncertain.

At the time of the hearing of this case he was unemployed with no immediate prospects of gainful employment. [Mr. O.] apparently enjoys good physical health and in addition to his college education has developed a number of other skills that should ma[k]e him employable on the open job market. He is undoubtedly somewhat hampered by the rather strange circumstances which apparently resulted in the termination of his last employment prior to the hearing but there appears to be no reason that he eventually should not become employed. He testified that he has sent out between forty and fifty job applications with no results. It was clear that [Mr. 0.] is capable of obtaining employment and has a potential income of at ⁴²³ least $20,000 per year.

Based on that figure, child support guidelines would require a contribution from [Mr. 0.] in the amount of $324.00 a month. In addition, this Court believes that [Mr. 0.] should pay an amount equal to the amount of the second mortgage on the house. Testimony showed that this mortgage, in the amount of approximately $10,000.00, was taken out to pay off [Mr. Q.’s] attorney’s fees and various joint marital debts. Although the testimony was somewhat unclear, the amount of this monthly payment appears to be $243.00 per month.

Considering [Mr. Q.’s] overall ability to work, the combined figures of the child support and the second mortgage appear to be well within his capabilities of paying.” (Emphasis added.) As a general rule, “the amount of a child support award is governed by the circumstances of the case and is entrusted to the sound discretion of the trial judge, whose determination should not be disturbed unless he has acted arbitrarily in administering his discretion or was clearly wrong.” Gates v. Gates, 83 Md.App. 661, 663 , 577 A.2d 382 (1990), quoting Kramer v. Kramer, 26 Md.App. 620, 636 , 339 A.2d 328 (1975). In this case, after substantial evidence was presented by both sides, the trial court found that Mr. O. was physically capable, educated, and possessed other skills which would make him employable. The evidence also shows that, although he had tried, for one reason or another Mr. O. had not found or maintained a job on a par with the teaching job he held prior to the criminal charge that was brought against him. 7 The failure of the court, however, to find specifically that Mr. O. voluntarily impoverished himself necessitates a remand. ⁴²⁴ A MONETARY AWARD At the close of the trial, the court denied Mr. O. a monetary award. Mr. O. contends that, in so doing, the court (a) improperly valued Ms. O.’s pension; (b) applied the wrong test in deciding whether to grant him a monetary award; and (c) supported its denial of a monetary award with facts not in the record.

In considering the monetary award, the court reasoned: “As stated above, [Ms. 0.] was employed by the Board of Education of Harford County from 1959 until 1986, with one or two periods of non-service. At the time of the hearing she .was receiving $803.24 a month and a stipulated current value of the pension was $21,483.10. [Mr. 0.] wishes a marital award for a portion of this pension. As stated above, a significant portion of the testimony in this case was devoted to an attempt by each party to show that he/she was the innocent/aggrieved party in the marriage and that the breakdown of the marital relationship was attributable to the other side. This Court has already stated that it believes that the ultimate breakup of the marriage was attributable to a number of factors to which both parties contributed.

It cannot be overlooked, however, that for at least four and one-half years during the course of this marriage [Ms. O.J was the sole source of income between the parties while [Mr. 0.] attended college. In addition, from 1983 until 1986, [Ms. O.J was the primary source of income for the parties. “Weighing the factors set forth in Section 8-205 of the Family Law Article, this Court believes, as stated above, that considering the contribution, both monetary and non-monetary of each party to the well-being of the marriage, the fact that the mental and physical condition of each party is such that they can be self-supporting, the fact that the conduct of each party contributed in some degree to the breakup of the marriage and the fact that the pension was earned exclusively by [Ms. 0.] during a period of time that began before the marriage, no marital ⁴²⁵ award to [Mr. 0.] for any portion of [Ms. O.’s] pension is appropriate.” In Quinn v. Quinn, 83 Md.App. 460, 464-65 , 575 A.2d 764 (1990), this Court said: “In determining an equitable distribution of marital property, Maryland courts are required to engage in a three-step process. First, all property owned by the parties must be categorized as either marital or nonmarital. Second, the marital property must be valued.

Finally, the court may make a monetary award. Failure to comply with the three-step process requires that any monetary award be vacated. “In determining the amount and method of payment of the monetary award, the court must consider the statutory factors enumerated in Md.Fam.Law Code Ann. § 8-205(b). The failure to consider the statutory factors also requires that any monetary award be vacated.” (Citations omitted.) (Footnote omitted.) —Value of Ms. O.’s Pension— The parties stipulated to the accuracy and authenticity of a letter from the Maryland State Retirement Agency regarding Ms. O.’s pension. The letter indicated the amount that Ms. O. was receiving monthly from her pension ($803.24), the portion of that amount that was paid into the pension by her ($195.34), Ms. O.’s life expectancy (24 years), and the annual cost of living allowance that the pension is subject to (four percent).

Mr. O. contends the trial court erroneously stated that the