Long v. Long

JAMES R. EYLER, Judge. This case requires us to review an award of alimony, child support, and attorney’s fees pendente lite. For reasons that follow, we shall vacate the award and remand for further proceedings. Appellant, Timothy Long, and appellee, Joan Long, were married on April 6, 1979, and separated in October 1998. 1 ³⁴⁴ The parties have three children, one of whom is a minor with attention deficit disorder.

On February 7, 2000, appellee filed a complaint in the Circuit Court for Montgomery County, seeking an absolute divorce and other relief. On March 14, 2000, appellant filed an answer and counterclaim, seeking an absolute divorce and other relief. On May 9, 2000, a hearing was held before the master on appellee’s claim for pendente lite alimony, child support, and attorney’s fees. On the same date, the master issued a recommendation that (1) appellee’s request for alimony pendente lite be denied, (2) appellee’s request for attorney’s fees be denied, and (3) appellee be awarded pendente lite child support in the amount of $900 per month.

Appellee filed exceptions to the recommendations. On August 10, 2000, the court held a hearing on the exceptions. The court found that appellant had voluntarily impoverished himself and/or failed to disclose the full amount of his income, attributed income to him in the amount of $93,000 per year, and by order dated August 17, 2000, held that appellant shall pay appellee (1) alimony pendente lite in the amount of $840 per month, (2) child support pendente lite in the amount of $1086 per month, and (3) attorney’s fees pendente lite in the amount of $1,500. On August 18, 2000, appellant filed a “motion to alter or amend and motion to revise” pursuant to Maryland Rules 2-534 and 2-535.

On September 28, 2000, the court denied the motions without a hearing. During the marriage, appellee worked primarily in the home and appellant worked primarily outside of the home. After the separation, the minor child of the parties resided with appellee. From 1979 until March, 1997, appellant worked for Sonco Worldwide, Inc., a fencing business owned by his father.

In March, 1997, because of marital and other difficulties, appellant resigned from his job, and the parties moved to Florida for a fresh start. Appellant testified that he sold his stock in the business for $133,000, payable over a three-year period. Appellant opened a business in Florida, Seagate Sales ³⁴⁵ and Marketing, but it failed. Appellant then sought another job and received two offers.

One offer was to work for a company in Tampa, Florida at an annual salary of approximately $50,000, and the other offer was to work for American Supply and Installation, located in Maryland, at an annual salary of $40,000, plus 5 to 10 percent commission on sales. Appellant accepted the job in Maryland and worked there until July, 1999, when the employer terminated his employment. In August, 1999, appellant was employed by Fencecen-ter.com, an entity affiliated with Sonco Worldwide. During the evidentiary proceeding, appellant, when asked if he had filed tax returns for the years 1998 and 1999, refused to answer and invoked the Fifth Amendment privilege against self-incrimination.

We shall refer to additional facts in our discussion of the issues. Questions Presented Appellant presents the following questions, as rephrased and reordered by us: 1. Did the circuit court draw an impermissible inference from appellant’s invocation of his Fifth Amendment privilege against self-incrimination? 2. Did the circuit court err in concluding that appellant had voluntarily impoverished himself and in determining the amount of income imputed to appellant? 3.

Did the circuit court abuse its discretion in awarding attorney’s fees to appellee? 4. Did the circuit court abuse its discretion in denying appellant’s motion to alter or amend or revise without a hearing? Discussion I. In rendering its decision, the circuit court stated: Certainly one of the proper inferences that the court can draw from the defendant’s invocation of the Fifth Amend ³⁴⁶ ment is that he did not file his tax returns for 1998 and 1999. The master made that inference.

However, in this court’s opinion, a broader inference is warranted because in this case the defendant not only-asserted his Fifth Amendment privilege but he also failed to produce any other probative evidence of what his income really is and as a result, the court finds that the defendant’s invocation of his Fifth Amendment privilege has opened the door for the court to also infer that the reason that he has not disclosed tax returns for the said years was to keep the full amount of his full income from being disclosed. Now in this case the issues of voluntary impoverishment and the negative inferences drawn from the Fifth Amendment privilege are clearly closely linked. The evidence supports the conclusion that the defendant voluntary (sic) impoverished himself with the help of his employer by deliberately reducing his income. Appellant contends that the circuit court could permissibly infer from the invocation of the Fifth Amendment that appellant had not filed his 1998 and 1999 tax returns, but that the court could draw no other inference.

Appellee contends that a broader inference is permissible and also argues that there was other evidence to support the court’s determination of voluntary impoverishment and imputed income in the amount of $93,000 per year. The Fifth Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, permits parties to avoid compelled self-incrimination. See Malloy v. Hogan, 378 U.S. 1, 6 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964); Richardson v. State, 285 Md. 261, 265 , 401 A.2d 1021 (1979). When a party chooses to invoke his or her Fifth Amendment rights in a criminal trial, the silence cannot be used against that party.

See Malloy, 378 U.S. at 8 , 84 S.Ct. 1489 . As the U.S. Supreme Court explained in Baxter v. Palmigiano, 425 U.S. 308 , 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976), however, “the prevailing rule [is] that the Fifth Amendment does not forbid adverse inferences against parties to civil ³⁴⁷ actions when they refuse to testify in response to probative evidence offered against them.” Id. at 318 , 96 S.Ct. 1551 (citing John Henry Wigmore, Wigmore on Evidence vol. 8, § 2272, 439 (McNaughton rev.1961)). In Baxter , prison inmates claimed their Fifth Amendment rights were violated at disciplinary hearings. One of the questions before the Supreme Court was whether the State was permitted to draw an adverse inference from the inmates’ refusal to testify.

See Baxter, 425 U.S. at 316 , 96 S.Ct. 1551 . In ruling that an adverse inference was permitted in civil cases, the Supreme Court clarified the extent to which an inference could be drawn by stating that the inmate was “advised that his silence could be used against him, but a prison inmate ... electing to remain silent during his disciplinary hearing, as respondent Palmigiano did here, is not in consequence of his silence automatically found guilty of the infraction with which he has been charged.” Id. at 317 , 96 S.Ct. 1551 . Because the State relied on additional evidence in its case against the inmate, as opposed to merely the inmate’s silence, the Court found the inmate’s Fifth Amendment rights had not been violated: “as far as this record reveals, his silence was given no more evidentiary value than was warranted by the facts surrounding his case. This does not smack of an invalid attempt by the State to compel testimony without granting immunity or to penalize the exercise of the privilege.” Id. at 318 , 96 S.Ct. 1551 .

In Whitaker v. Prince George’s County, 307 Md. 368 , 514 A.2d 4 (1986), the Court of Appeals expressly adopted the rule in Baxter . The factual question in Whitaker was whether certain buildings were being used as houses of prostitution, and when one of the alleged prostitutes was questioned on the matter, she refused to answer, citing the Fifth Amendment privilege against self-incrimination. Regarding what the fact-finder could infer from her silence, the court opined, “the [Fifth Amendment] privilege does not forbid the drawing of adverse inferences against parties to civil actions when they refuse to testify.” Id. at 386 , 514 A.2d 4 . The court further explained that while the alleged prostitute’s silence alone could ³⁴⁸ not support a finding that the building in question was being run as a house of prostitution, the adverse inference drawn from her silence “may be coupled and considered with proper and relevant evidence tending to prove such fact.” Id. at 386 , 514 A.2d 4 .

In Robinson v. Robinson, 328 Md. 507 , 615 A.2d 1190 (1992), the Court of Appeals permitted an adverse inference to be drawn from Ms. Robinson’s invocation of her Fifth Amendment rights regarding her allegedly adulterous behavior. In that case, Mr. Robinson claimed that the negative inference which could be drawn from Ms. Robinson’s refusal to answer questions regarding her adultery established not only her commission of adultery, but also her unfitness as a parent. Id. at 516 , 615 A.2d 1190 . The Court of Appeals held that the proper inference produced by Ms. Robinson’s silence was that Ms. Robinson had committed adultery.

In a footnote, the Court said, “the adverse party’s refusal, taken alone, does not relieve a party of his or her burden of proof on the issue which was the subject of the question.” Id. at n. 2 (citing Whitaker v. Prince George’s County, 307 Md. 368, 386 , 514 A.2d 4 (1986)). Utilizing similar reasoning, this Court, in Kramer v. Levitt, 79 Md.App. 575 , 558 A.2d 760 (1989), held that it was not permissible for a trial court to deem admitted those requests for admission neither admitted nor denied by a party. See Kramer, 79 Md.App. at 584 , 558 A.2d 760 . We explained that because Kramer, the appellant in the case, invoked his Fifth Amendment rights, the trial court should have allowed the requests for admission to be read to the jury and “should then have instructed the jury that appellant [Kramer] objected to answering these requests relying on his constitutional privilege against self-incrimination and that