Lee v. Lee

SALMON, Judge. The chancellor granted the appellant, Erie Lee (“Mrs.Lee”), an award of rehabilitative alimony in the amount of $1,500 per month for three years. He declined, however, to award Mrs. Lee permanent alimony. The main issue presented in this appeal is whether reversible error was committed by his failure to award permanent alimony.

I. BACKGROUND FACTS A hearing was held on July 20-22, 2001, in the Circuit Court for Washington County. The focus of the hearing was to determine whether Mrs. Lee was entitled to indefinite alimony, and if not, the amount and duration of temporary alimony. ⁴³⁴ The appellee, Richard Paul Lee (“Mr.Lee”), conceded that Mrs. Lee was entitled to receive some temporary alimony. Mrs. Lee was fifty at the time of the hearings. Mr. Lee is four years her senior.

The parties were married in 1972. Eight years later, they became parents of a son, Richard Paul Lee, Jr., who is now an adult college student. During the first fourteen years of marriage, Mr. Lee’s employment responsibilities caused the family to move frequently, sometimes to areas — such as rural Alabama — which Mrs. Lee felt were undesirable. Mr. Lee had four adulterous relationships during their marriage, the most recent of which was with a co-worker.

He was involved romantically with the co-worker continuously from 1996 up until the July 2001 hearing. In April 2000, Mr. Lee, unbeknownst to his wife, rented an apartment in Hagerstown, Maryland, where he met clandestinely with the co-worker. Despite paying rent for his “love nest,” he continued to live in the marital home (also located in Hagerstown) with Mrs. Lee. On August 7, 2000, Mr. Lee left a note on the front door of the marital residence in which he bluntly informed his spouse that he was leaving her.

The couple never cohabited thereafter. During most of the twenty-eight-year period prior to their separation, the litigants lived in nice homes and enjoyed a comfortable, middle class standard of living. Mrs. Lee filed, in the Circuit Court for Washington County, a complaint for absolute divorce or, in the alternative, for a limited divorce. She alleged that she was entitled to a divorce on the grounds of both adultery and desertion.

Mrs. Lee was granted a divorce on the ground of adultery. The chancellor found that Mr. Lee’s adultery was responsible for the breakup of the marriage. The court also found that, during the marriage, Mr. Lee had transmitted a sexual disease to his spouse. As a consequence, Mrs. Lee now suffers from a painful rash that recurs monthly.

While Mr. Lee also has the disease, he is asymptomatic. ⁴³⁵ Aside from suffering from the sexually transmitted disease, Mrs. Lee’s physical health is good, as is Mr. Lee’s. Mrs. Lee has suffered from anxiety and depression since the parties separated. She has sought, and received, professional help for these problems. Mr. Lee was the primary source of family income during the parties’ marriage.

He has an Associate Degree in industrial engineering. He has worked in Hagerstown since 1984. Currently, he has a secure job as a plant manager for C.M. Offray and Sons, Inc. His annual salary in 2000 was $73,000. He also received a $5,000 bonus.

In addition, his employer contributes to a 401K pension plan, and he enjoys company-sponsored health insurance and other fringe benefits. Mrs. Lee, a high-school graduate, has attended community college, where she has earned a few college credits. She worked sporadically during the marriage but always at low-paying jobs. In 1996, she commenced employment in Hagerstown, where she worked as a veterinarian technician.

Initially she worked part-time, but the position eventually evolved into a forty-hour-a-week job, paying $6.75 per hour. Mrs. Lee quit that job in 1999, due to “poor pay, poor management,” and opened a “pet sitting” service. That venture was insufficiently remunerative, and to augment her income, she commenced employment in 1999 with Howard’s Art and Frame store (“Howard’s”). At Howard’s she designs frames and matting for works of art.

She also sews the mountings for antique textiles. Mrs. Lee worked forty hours a week and was paid $8.00 per hour at the time of the July 2001 hearing. This computes to $16,640 annually, assuming that she takes no vacations and works fifty-two weeks per year. Her employer provides her with no health or other fringe benefits.

Mrs. Lee has only minimal computer skills. She is a “two finger” typist and knows how to send and receive e-mail. She currently intends to work at Howard’s because she enjoys the work and because her co-employees have provided emotional support since her husband’s desertion. ⁴³⁶ In support of his position that Mrs. Lee was not entitled to indefinite alimony, Mr. Lee introduced, without objection, a report prepared by Kathleen Sampeck, a vocational consultant. Ms. Sampeck’s assessment noted that Mrs. Lee had the following transferable employment skills: 1. speak[s] clearly and listen[s] carefully 2. use[s] personal judgment and specialized knowledge to give information to people orally 3. communicate[s] well with many different kinds of people 4. use[s] arithmetic to total costs and make change 5. use[s] office equipment such as a telephone, calculator, copy machine, fax machine, and computer keyboard.

Based upon these quotidian skills, the assessment listed several occupations for which Mrs. Lee would be qualified, namely: retail sales attendant, animal hospital clerk, reservation clerk, dispatcher, office helper, telephone operator, appointment clerk, receptionist, telephone quotation clerk, router, order filler, shipping clerk, and customer service representative. Using various sources, Ms. Sampeck opined that Mrs. Lee could earn “between $20,800.00 and $25,376.00 annually” if employed in one of the above-mentioned occupations. In the Hagerstown area where Mrs. Lee planned to live, Ms. Sampeck believed that Mrs. Lee was qualified, at the below listed annual salaries, to work as: customer service representative ($16,400-$20,800); telephone survey worker ($16,952); order processor ($19,240); receptionist ($17,680-$23,800); dispatcher ($23,670); and companion ($18,720-$24,960). Her opinions as to possible job opportunities were “consistent -with the average earnings of all persons with a high school diploma ($22,895) and those with some college but no degree 1 ($24,804).” The report also stated that estimate was “significantly lower than the average earnings of high ⁴³⁷ school graduates between the age of 45 to 54 ($26,925) and those with some college but no degree, between the age of 45 and 54 ($35,090).” Ms. Sampeck’s report noted, however, that “the median wage for an individual with Mrs. Lee’s worker trait profile is $19,206.” The assessment concluded with these words: “Should Mrs. Lee elect to enhance her skills by taking some basic classes in using a computer, available through Hagerstown Community College, she would significantly enhance her job opportunities and earning potential.” Ms. Sampeck did not venture an opinion as to what Mrs. Lee might earn if she “enhance[dj” her computer skills.

Shortly before the July 20, 2001, hearing, the parties amicably resolved all issues concerning marital property. Their agreement provided that the marital home was to be sold with the net proceeds divided equally. The parties anticipated that each would receive approximately $50,000 from the sale of the home. Investments, worth approximately $77,000, were to be equally divided.

The value of some IRA’s owned by the parties, coupled with Mr. Lee’s 401K plan (with a combined value of $120,000), was also to be divided equally. As a result of their agreement, both parties would have about $86,500 in either ready cash or stock once the house was sold, plus approximately $60,000 to be kept in reserve for their respective retirements. Mrs. Lee planned to use most of her share of the proceeds from the sale of the house to make a down payment on the purchase of another home. The court found that Mrs. Lee’s current monthly expenses were $2,600.

According to Mr. Lee’s financial statement, his monthly expenses were approximately the same as Mrs. Lee’s.

II

OTHER FINDINGS OF FACTS BY THE CHANCELLOR The chancellor’s findings of facts did not mention Ms. Sampeck’s report. Aside from our summary of Ms. Sam-peck’s report and a few inconsequential details, the trial court’s findings of fact were similar to those set forth in Part I ⁴³⁸ above. The chancellor found that Mr. Lee’s annual salary was $75,000, plus a $5,000 bonus. The record reveals that his annual salary was $73,000, plus the bonus.

Mr. Lee submitted a financial statement showing that his monthly expenses were $2,607.03. The trial judge did not, specifically, adopt that figure. Instead, when commenting upon the financial statements of the parties, he said: I mean we’ve got financial statements, there’s errors in both of them, nothing intentional. We’ve got the blackboard with all these numbers, you know, and liars figure.

Figures lie and liars figure. I think that’s what they say. Not that anybody’s a liar. And then, of course, we ... [must deal with that fact that] alimony is tax deductible to [Mr. Lee] and taxable to [Mrs. Lee], so that is something that has to be added into the mix.

The chancellor discussed, at least in some fashion, the first eleven factors mentioned in section 11 — 106(b) of the Family Law Article (“FL”) of the Maryland Code (1999 RepLVol.). 2 ⁴³⁹ Of particular importance to the outcome of this appeal are the court’s comments in regard to the factors set forth in FL section 11 — 106(b)(1) and (2). Regarding FL section 11 — 106(b)(1), the chancellor found that at the present time Mrs. Lee did not have the ability to be wholly self-supporting, although she was partially self-supporting. In the court’s words, “She’s not wholly self-supporting, because based on her needs, even if we racheted down her needs list ... [s]he still needs additional funds from her husband to maintain somewhat [sic] a standard of living. I’ll get into that in a minute.” Concerning the factors set forth in FL section 11-106(b)(2), the court said: It would certainly not behoove me, if I were trying to say this is a rehabilitative alimony case to suggest to Mrs. Lee that, let’s go out to the Junior College, I know there’s money out there for “middle-aged, single women” to reestablish themselves in the job market.

Because then you ⁴⁴⁰ can get yourself a two-year degree, and I think, quite frankly, I think when you were on the stand, you indicated it really didn’t make sense at your age to get a two-year degree because, really, how much marketability will that be at the end of two years if I get that degree and I think you have a few [college] credits, but basically you’re going to have to do this on your own time because you have to work so it would probably take you three or four years to get a degree, but I agree, I don’t think that it’s necessary for you to go back and get a degree in order to satisfy this criteria. The other argument is, no, but you’re an intelligent woman, you’ve worked in the job market before, that it may be sufficient for you just to go out there and take a few courses for computers or whatever, in other words to hone up your skills to give you an added edge, if, in fact, you decided to leave the art gallery. And, who knows, jobs come up and nobody is here saying that, hey, you’ve got to go become a vet tech. I mean, you did apply for a job, they offered you minimum wage, I mean, nice try but, you know, you were smart enough not to take it so this isn’t to say, look, you want alimony you’re gonna have to get rehabilitative alimony, you have to go out there in the next couple of years and get some vet tech job.

That’s not what it’s all about. So, yeah, I think, probably based on your age and education, there are some courses you can take, but I don’t think it’s reasonable to say that, look you ought to go out and get a degree. It will be noted that, despite the chancellor’s extensive comments regarding FL section 11 — 106(b)(2), he never gave his view as to the “time necessary for ... [Mrs. Lee] to gain sufficient education or training to enable ... [her] to find suitable employment.” The chancellor explained why he gave Mrs. Lee an award of rehabilitative alimony but no indefinite alimony in these words: Now as far as the alimony is concerned, Mr. Marks [Mrs. Lee’s counsel] nice try but I feel at this point we’re at strictly in the rehabilitative alimony stage. This isn’t to say ⁴⁴¹ that later down the road she could [not] come in and request indefinite alimony, but I don’t think we’re there yet.

I give her credit, you know, she ... decided, from the Master’s hearing until now, instead of working 30 hours a week she’s working 40 hours a week. I’m not telling her to change jobs. I want to give her a suitable period of time to feel comfortable with what she’s doing, to get this behind her, to instead of looking backward to look forward, and whether it’s going to be at Howard’s Arts or somewhere else, but I’ll give her the ability to go out and, and try to take some additional courses, give her the ability in a time to maintain a decent lifestyle based on the settlement plus the alimony award and her income and, hopefully, this period of rehabilitative alimony will spring the bird from the nest, but we’ll have to see. But I do not think that indefinite alimony is appropriate at this time.

However, how long should the alimony be? And I agonized over this and looking at, again, the totality of the case, the statutory factors, and this isn’t a penalty, but I don’t think for a woman who’s 54[sic] years old, based on her skills, based on a marriage of 27[sic] years, based on the fact that she does have ability to work, she’s worked in the past but I mean to possibly enlarge her horizon for employment capabilities, I don’t think it is inappropriate for me to order 36 months of rehabilitative alimony. That’s three years, beginning August 1st. (Emphasis added.) The chancellor established the amount of rehabilitative alimony to be paid to Mrs. Lee by considering her living expenses — which were $31,200 per year — and her gross income of $16,640 ($320 per week x 52), less taxes.

He concluded that if she were to receive $18,000 per year ($1,500 per month) in alimony, that amount, coupled with her wages, less taxes, would suffice to cover her needs. Accordingly, Mr. Lee was ordered to pay alimony in the amount of $1,500 per month.

III

Mrs. Lee asserts that the chancellor made four errors, viz: ⁴⁴² 1. Making no factual finding that would justify a period of rehabilitative alimony of three years, as opposed to any other time period. 2. Failing to make a determination pursuant to FL section 11 — 106(c)(2) of whether, after Mrs. Lee makes as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living will be unconscionably disparate. 3. Failing to recognize the heavy burden that Mrs. Lee would have to shoulder if she were to return to court after three years and ask for an award of indefinite alimony. 4.

Failing to grant Mrs. Lee an award of indefinite alimony. We shall address these allegations seriatum. A. No Factual Findings to Justify Rehabilitative Alimony for Three years Mrs. Lee argues: The court made no findings of fact that would justify a period of three (3) years, as opposed to one year or ten years, or some other figure. Nor did the court make an evidence-based prediction of what it expected would occur to the [ajppellant during that three (3) year period, i.e., a specific education plan, training, etc. Nor did the [cjourt estimate what the [ajppellant’s income would be at the end of the three (3) years.

Indeed, there was no evidence to support a conclusion that the [ajppellant would be earning more money in 2004 than in 2001. Citing Benkin v. Benkin, 71 Md.App. 191 , 524 A.2d 789 (1987), Mrs. Lee.asserts that the chancellor is required to make a prediction “regarding the dependent spouse’s efforts to become self-supporting.” Mr. Lee acknowledges that, when a chancellor sets the duration of rehabilitative alimony, he or she “must” have “some factual basis for the choice of length of time for rehabilitative alimony, and some educational plan.” He as ⁴⁴³ serts, however, that Ms. Sampeck’s report provides “ample” basis for the chancellor’s choice. He contends that in choosing three years, the chancellor was evidently relying upon “Ms. Sampeck’s statement that [a]ppellant would greatly increase her marketability by taking some computer courses.” Appellee goes on to argue: There is nothing in [Ms. Sampeck’s] report to indicate that [a]ppellant would benefit by pursuing a four year degree, and hence there is a foundation for the [c]ourt to award less than four years rehabilitative alimony. Certainly Ms. Sam-peck’s report establishes that taking computer courses should be [a]ppellant’s educational goal.

In Benkin , the parties were married for twenty-eight years. Id. at 203 , 524 A.2d 789 . The husband earned $70,000 annually. Id. at 199 , 524 A.2d 789 .

The wife, age 51, suffered from a severe arthritic condition, and at the time of the divorce earned $11,000 annually. Id. at 197-99 , 524 A.2d 789 . The wife, who was well-educated, had worked as a lobbyist for the first few years of the marriage but, aside from some occasional part-time work, had not been gainfully employed for nearly twenty-five years prior to the divorce. Id. at 203 , 524 A.2d 789 .

In Benkin , we said: Appellant, a fifty-one year old woman, virtually inactive in the job market for almost twenty-five years, suffers from arthritis, a progressive condition. She will be fifty-six years old when the alimony award terminates. Reentry into the job market for a woman of fifty-six years, even in excellent health, is problematic. The military pension will begin in about five years and will provide Mrs. Benkin with approximately $400.00 per month.

The government pension probably will not begin for ten to twelve years. Although the trial court may not have erred in refusing to award alimony for an indefinite period of time under (c)(1), we find no basis in the record for the five year limitation on alimony under the (c)(2) standard. On remand, the chancellor should consider and explain explicitly the reasons that favor or ⁴⁴⁴ militate against an award of indefinite alimony under (c)(2). In reaching this outcome, we are not requiring the trial court to order an award of indefinite alimony, although that may be the ultimate conclusion of the trial court, after taking into consideration all the factors that we have set out above.

Rather, we hold that there must be some relation between the length of the award and the conclusion of fact as to the income disparity made by the court. Id. at 203-04 , 524 A.2d 789 (emphasis added). Although the disparity in income in Benkin was somewhat more severe than here, that case and this one do have as a common denominator the fact that the chancellor failed to explain adequately his reasons for the duration of the rehabilitative alimony award in relation to the disparity of income he found to currently exist, and he failed to explain the factor or factors that militated for or against an award of indefinite alimony. The chancellor did make it clear that he thought Mrs. Lee would benefit economically if she took some college courses.

But he gave no clue as to why he believed Mrs. Lee could be self-supporting in three years (assuming he did have that belief) or what line of work he thought she could engage in to allow her to become self-supporting. A somewhat similar problem arose in Long v. Long, 129 Md.App. 554 , 743 A.2d 281 (2000), where the chancellor granted rehabilitative alimony without providing a rationale for its duration. In Long , the disparity in income between a couple (who were both fifty-two and who had been married for ten years at the time of the divorce) was much greater than in the case at hand. The husband earned $150,000 annually, but the wife had no job because she suffered from agoraphobia.

Id. at 565 , 743 A.2d 281 . The chancellor nevertheless found that the wife had the ability to earn “at least” $25,000 yearly, based on skills she had developed years earlier — but had not used recently. Id. at 580 , 743 A.2d 281 . The court granted the ⁴⁴⁵ wife rehabilitative alimony for four years in the amount of $3,000 per month.

Id. at 581 , 748 A.2d 281 . In Long , we said: We take issue with two aspects of the chancellor’s findings as they stand. First, his opinion does not tell us why he reached specific findings. For example, we cannot ascertain from whence his determination on duration of alimony came, because he does not specifically treat the mandatory factor in section 11 — 106(b)(2), the time required for Wife to become wholly or partially self-supporting.

While our cases hold that the chancellor need not treat section 11-106(b) as a formal checklist and list every factor in his opinion, this element goes to the heart of Maryland’s alimony scheme, which is based on rehabilitation. Its absence is especially noticeable because he treated the other factors in some detail. Likewise, the chancellor does not state from what evidence he determined that Wife can retain a job earning $2,083.33 per month, i.e., $25,000 per year, given her current and projected mental condition. Most of the facts he cited seem to point in the opposite direction of his judgment.

A four-year alimony award might make sense, for example, if Wife was mid-degree program and needed time to finish a course of studies, and experts had testified that her anxiety and depression were temporary conditions. The outcome here might make sense if Wife, in sound mental health, had presented the chancellor with a business plan for establishing an auto detailing service or beauty salon with a profit of $25,000 per year projected for the four-year mark. Instead, the findings of fact show that the litigant before us is 52 years of age, has few assets, suffers from a mental health condition with an unknowable prognosis for full recovery, and has been out of the workforce, because of illness and perhaps at Husband’s behest, for several years. The record shows, moreover, that she did not end her marriage by choice, but instead is divorced because Husband philandered.

The facts of the story as determined by the court below thus do not match the parsimonious award it ultimately granted. See Benkin v. Benkin, 71 Md.App. 191, 204 , 524 A.2d 789 (1987) (“we ⁴⁴⁶ hold that there must be come relation between the length of the award and the conclusion of fact as to the income disparity made by the court”). Because the chancellor failed to draw a solid line between the facts and the remedy, explaining fully how the former justified the latter, he abused his discretion in our view. Id. at 581-83, 743 A.2d 281 (some citations omitted) (emphasis added).

In Long , we ultimately concluded that indefinite alimony should be granted because the difference between the “husband’s and wife’s mid-to-long term [economic] prospects ... [were] ... unconscionably disparate.” Id. at 583