Malin v. Mininberg

HOLLANDER, J. This case presents a host of issues arising from the dissolution of the marriage of Murray J. Malin, appellant, and Marcie Beth Mininberg, appellee. Their union was brief; the parties married in November 1996 and separated in November 1999. The couple’s only child, Samuel, was bom on July 25, 1998. 1 Appellee initiated divorce proceedings in June 2000, and the trial consumed five days in July 2001. At the end of trial, the court issued an oral opinion, which was followed by a written Opinion and Judgment of Absolute Divorce.

The court’s rulings spawned this appeal; Malin presents nine questions, which we have reordered slightly: I. Did the court commit reversible error in finding that [the] husband was voluntarily impoverished? ³⁶⁹ II. Did the court err in setting child support at $1,500 per month?

III

Was it an abuse of discretion for the court to order [monthly] alimony in the amount of $3,500?

IV

Was it an abuse of discretion for the court’s award of rehabilitative alimony to extend over five years? V. Did the court exceed its authority in designating the wife’s support payment as non-taxable alimony?

VI

Did the court exceed its authority in ordering the establishment of what amounts to be a trust account for future expenses of the parties’ child?

VII

Did the court erroneously apportion between the parties the amount of money to be placed in a trust account for the expenses of the parties’ child?

VIII

Was it an abuse of discretion for the court to decline to make a monetary award to husband?

IX

Was the award [to the wife] of $60,000 in attorney’s fees an abuse of discretion? For the reasons stated below, we shall affirm in part, reverse in part, and remand for further proceedings. FACTUAL BACKGROUND 2 Appellant was born in 1958. At the time of the marriage, he was a thirty-eight year old practicing anesthesiologist.

Appellee, born in 1969, was twenty-seven years of age when the parties married. Although appellee graduated from law school in 1994, she failed the Bar examination twice. Appellee decided not to take the exam for a third time because, after working for a general practice lawyer for about nine months, she realized that she “didn’t enjoy the practice of law ... at all”; it was “too stressful....” When the parties met in late 1995, appellee was working at a jewelry store. ³⁷⁰ In April 1996, the parties began to cohabitate at appellant’s home in Bethesda. In the summer of 1996, appellee began working for her father, a physician, on a part-time basis.

She was paid thirty dollars an hour to handle a variety of office and bookkeeping duties, earning about $1,800 biweekly. Prior to the marriage, appellant disclosed to appellee his history of alcohol and drug addiction. Appellant first began abusing Valium during his residency at Georgetown University in 1987. That year, appellant spent two months at a treatment facility in Atlanta.

Recognizing that he had a “real problem,” and that it was a “life and death matter,” appellant also sought treatment from an addictions doctor, became involved with Alcoholics Anonymous, and attended group therapy sessions. According to appellant, he remained sober from 1987 until 1999. Prior to the marriage, Dr. Malin had already purchased a house in Bethesda, although he had little equity in it. The parties lived in appellant’s home for approximately two years after they were married.

Appellant also had furniture and an automobile. The parties sold appellant’s furniture, netting approximately $23,000; the proceeds went into the “family coffers.” Dr. Malin accumulated $290,973.49 in retirement assets prior to the marriage. During the marriage, he made additional contributions of $54,358 to his retirement accounts. Dr. Malin also received $29,000 from the settlement of a boundary dispute relating to non-marital property, which the parties used for living expenses.

Then, in January 1999, the parties received $73,418 from Guardian Life Insurance in connection with appellant’s disability claim. According to appellee, these funds were also used for household expenses. Appellee came to the marriage with $31,000 in a mutual fund, as well as a car and some jewelry. Her funds were used for family expenses.

Moreover, for a period of approximately one year, while the parties’ new home in Potomac was under construction, they lived with appellee’s parents. According to appellee, by living with her parents for a year, they “saved a lot of money,” which they used for their new home. ³⁷¹ The parties settled on their new house in June 1999, just a few months before they separated. The purchase price was $782,581, plus settlement costs. In addition to a $60,000 deposit, the settlement sheet reflects that the parties borrowed $600,000 to fund the purchase, and paid another $145,000 at closing.

The parties sold the house less than a year after settlement, in April 2000, for $975,000. The sale price included a built-in “high-definition” television that cost the parties about $13,000. Apart from the mortgage, the funds used by the parties to acquire the marital home came largely from appellant’s retirement account, most of which contained non-marital funds. It is undisputed that appellant withdrew about $200,000 from his various retirement account for that purpose.

The parties used a portion of that money to pay fees and taxes generated by appellant’s early withdrawal of his retirement funds. Appellee testified that, during the marriage, she “was responsible for the house.” Moreover, while they lived in appellant’s home, the parties decided to renovate it, because it “needed a lot of repairs in order to be sold.” Appellee testified: ... I was responsible for hiring all the contractors, overseeing the work, making sure it got done, meeting the contractors at the house. I was responsible for all the grocery shopping, the dry cleaning, the upkeep of the house, making sure it was clean and everything was taken care of.

As noted, Samuel was born on July 25, 1998. According to appellee, he was a “very difficult” baby; he cried a lot, had colic, and “rarely slept.” It is undisputed that Sam has serious developmental disabilities. He was diagnosed with “pervasive developmental disorder, not otherwise specified,” an autism-related disorder characterized by lack of socialization and communication. 3 ³⁷² Although appellee “worked until the day before [she] delivered,” and went back to work “two weeks later,” she decided in July 2000 to reduce her work schedule from thirty hours a week to fifteen, in order to devote more time to Sam’s needs. Appellee explained that she did so because caring for Sam “became a full-time job just to explore programming, find programming, all the insurance and all the billing and the reading and the educating.” Appellee also drives Sam to therapy sessions at least four times a week.

Given her parental responsibilities and challenges, appellee added that it was “really hard” to “squeeze” in work. Further, appellee testified: It’s—it’s—well, you first go through a process of just being completely overwhelmed, not knowing what to do, and you feel entirely inadequate as a parent, because you need to relearn how to be a parent. You’re not a parent in terms of what you normally just do with a child through the course of the day and they learn from just doing it. You have to learn how to teach them, how to be a parent.

It’s a totally different experience. The parties hired a nanny in April 1999 to assist with Sam’s care and with the household; the nanny continues to work for appellee. Appellee'explained that she needs help with Sam because he cannot be left “unattended,” even while appellee engages in simple tasks like showering. She stated: “[0]ne of the characteristics of children with these issues is they’re unaware of danger----” In contrast to her friends, who “can leave their children ... sitting in a room while they do something else,” appellee said that she “can’t really do that with Sam.” Both parties attributed some of their marital difficulties to Sam’s health problems.

Appellee complained that she and the nanny “provided the primary care” for Sam, while appellant offered little help in caring for him during the time that they lived with her parents. She testified: [W]e now had an infant who never slept, and I would be up all night and need some relief. And in the morning he ³⁷³ would leave at 6:00-6:30 to go play golf, come home at 3 o’clock in the afternoon, and then want to sleep all afternoon because he was tired. I had been up all night and hadn’t gotten a break.

And being with Sam during the day at this point was not easy. All he did was cry, and we rocked and we walked and we rocked and we walked. And it was a very trying time. Appellant acknowledged that his “relationship” with his wife became “more difficult” after Sam was born.

He experienced “a constant struggle [with appellee] to be part of Sam’s life,” and complained that his wife frequently rejected his offers to help with Sam’s care. According to Dr. Malin, during the latter part of the marriage, there was “no communication between the two of us,” although he perceived himself as “very communicative.” Moreover, he claimed that whenever he tried to “say anything,” appellee “would yell or scream or get mad.... ” It reached a point where he “didn’t want to deal with it anymore.” In January 1998, appellant was terminated from his employment with Columbia Anesthesia Services, because he allegedly tampered with patient medical charts for financial gain. According to appellee, after appellant’s termination she used her father’s connections to help appellant find part-time work at various outpatient surgery centers. Appellant relapsed in the spring of 1999, when he resumed his use of alcohol and drugs.

Appellee described appellant’s “behavior” at that time as “unbelievably erratic,” and claimed that it “destroyed” their relationship. Characterizing appellant as “an absolute mess,” appellee elaborated: I never knew what would set him off. One day he would be nice. One day he would be very mean or nasty, and then the next morning I would get flowers.

And then a few days would go by, and I’d, you know, think that things were going to be okay, and then like a bomb would go off, and he would be nasty again, and then he’d call me nine times before 8 o’clock the next morning ³⁷⁴ from work to tell me how much he loved me and that I was the best wife. It made me sick to my stomach. We had just bought a new house. We had a new baby.

You know, we had the makings of a wonderful life together. And I didn’t understand what I was doing that was so upsetting to him. I mean, I wpuld even ask my father. I would tell him what happened, because I would cry at work.

And I would say, you know, “Dad, this is what happened last night. Please tell me what I did wrong so that I can understand it, because I don’t understand it.” Appellee added: I was walking on eggshells. I was—I never knew who was going to walk in the door. I didn’t know if he was going to walk in and, you know, say “Hello.

What do you want to do tonight,” or if he was going to walk in and, you know, take out on me whatever had happened that was causing him to be so upset. By October 1999, appellee “couldn’t tolerate it anymore.” She explained: “It was a miserable existence. We had no relationship. He was mean to me all of the time.

It was just horrible. I cried all the time. It was a very unhappy place to be.” Dr. Malin acknowledged that his relapse in 1999 put a tremendous strain on his relationship with his wife. When asked if his “drug abuse had an adverse effect on [his] relationship with [his] wife,” Dr. Malin replied: “Absolutely.” He accepted “responsibility” for the pain that he caused his wife.

Appellant’s relapse culminated in his arrest on November 3, 1999, “for writing a prescription using another doctor’s name for a person that didn’t exist.” Appellee’s father obtained counsel for appellant, and the charges were eventually placed on the stet docket, conditioned on appellant’s commitment to undergo treatment. The following testimony is of interest: ³⁷⁵ [APPELLEE’S COUNSEL]: Now, when you were arrested, you lied to the police officer as to what happened; didn’t you? * * * [APPELLANT]: I’m going to take the Fifth Amendment. I was advised by an attorney, because of the status of my stet, that I really cannot answer any questions that have to do with that incident or before or me writing prescriptions. So, I’ll take the Fifth.

Following appellant’s arrest, he wrote a letter to his son. Dr. Malin disputed appellee’s characterization of the letter as a suicide note. Appellant testified: At that point I had felt that I was helpless and hopeless and there was nothing that could be done to make my life any better, and at that time I believe that Marcie would be—and Sam would be better if I wasn’t in their life. Which I realize, now is—because that’s how I felt like I was such a burden on Marcie, and—and—and in the note was just “Yeah, I love my son and I hope that you’re happy.” There was no intent of suicide.

You know, you write your feelings. Soon after his arrest, appellant began a twenty-eight day inpatient drug treatment program at Hazelden in Florida. Upon release, appellant participated in an outpatient drug program for five weeks and submitted to weekly drug testing for over a year. Appellant testified that he had not used any chemical substances or alcohol since November 1999.

Moreover, he continues to attend Alcoholics Anonymous and participates in mental health counseling. Appellant recalled his disappointment because appellee did not become involved in his treatment in Florida. According to appellant, appellee only visited him once during his in-patient stay, even though she was at her parent’s Florida home, which was just an hour away. Indeed, while at Hazelden, appellant learned from his sister that appellee was leaving him. ³⁷⁶ Appellee left the marital home in November 1999, while appellant was at Hazelden.

She, her son, and the nanny all moved to her parents’ home, where they still resided as of trial. Appellee explained that she has remained in her parents’ home because of the “[m]oney,” stating: “I can’t afford to live elsewhere.” In addition, she believed any change in routine would have been detrimental to Sam. Although appellee hopes to move from her parents’ home, she noted that a two-bedroom rental in the area would cost over $2,000 per month, compared to the $1,000 per month in rent that she pays her parents. Moreover, because of Sam’s treatment, she wants to remain in the area.

Upon his return from Florida, appellant resided in the marital home, where he remained until it was sold in April 2000. He then moved to a town house that was purchased by his parents. Appellant paid the monthly mortgage payment of $2,250, and claimed total monthly expenses of $3,430 related to the town house. Additionally, appellant hired a live-in maid in June 2000, who was paid $1,300 a month through the time of trial.

The sale of the marital home yielded net proceeds of $297,451.06. The parties put $25,000 of that money into a “medical account” that they established at the bank for their son’s needs. In addition, the parties each received approximately $10,000. ■ The remainder of the money was deposited in a joint escrow account. It contained approximately $269,700 at the time of trial.

Appellant began to pay $1,000 per month in child support in January 2000. In February 2001, appellant began to pay appellee $2,000 a month in non-taxable alimony and $500 per month in child support. However, appellee complained that Dr. Malin was not always current on his payments. The parties recognize that Sam’s medical and other care is expensive, although they disagree about the costs.

Sam is currently in the “START” program, 4 where he receives speech ³⁷⁷ and occupational therapy at a cost of $3,500 a month. Heidi Graff, the Administrative Director of the START program, testified that START provides an individualized, early childhood program specializing in helping toddlers to improve their sensory systems. Appellant acknowledged that the program costs $40,000 a year, but appellee maintained that Sam’s total medical care and other services amounts to more than $60,000 annually. Appellee stated: “[Dr. Malin] and I will share the responsibility of that cost____There’s nothing more important right now than Sam getting the help that he needs----” Appellee added: “Nobody can tell me how long Sam is going to need the START services.” But, she claimed that Sam has made “amazing” progress, and the extent of his developmental delay has diminished somewhat.

Appellant has not worked as an anesthesiologist since he completed his last drug treatment program in 1999. He applied for a position as an anesthesiologist at Sibley Hospital, but “that job was lost as a result of [appellant’s] drug use.” He also applied to Georgetown for a pain management residency, but when the hospital learned of appellant’s arrest, his application was terminated. According to appellant, that job “was not an option at that point.” Appellant eventually decided that it was not in his best interest to “practice anesthesia in the operating room” or to pursue any employment in the medical field. Consequently, he enrolled in business school at George Washington University, in an effort to secure an MBA degree.

He said he planned to become a consultant in the field of “Data Mining,” involving statistical informational modeling. The following testimony is relevant: [ATTORNEY FOR APPELLANT]: Okay. And now since the time you went into [Hazelden] have you gone back to doing anesthesiology? [APPELLANT]: No. I have not. [ATTORNEY FOR APPELLANT]: Tell the Court about that. Is that a decision of yours? [APPELLANT]: It was a decision of mine. ³⁷⁸ [ATTORNEY FOR APPELLANT]: Tell the Court. [APPELLANT]: I had—when I was in [Hazelden].

There was [sic] many people, professionals, psychiatrists, psychologists, counselors. My counselor advised me—he thought that it would be a big mistake to go back to anesthesia at all, and a couple of years prior to that I’d been advised by some psychiatrists that I’d been working with that they didn’t feel that that would be the best thing for me to do, being, a drug addict. So when I returned back to D.C. I spoke with, Dr. Kolodner. I spoke with Dr. Allman who is my psychiatrist and people at [Hazelden] and Tony Banano, and I felt that that would not really be the interest of me to go back to anesthesia considering this relapse that I had recently undertaken.

So I decided not to pursue that. [ATTORNEY FOR APPELLANT]: And what have you— what did you do—was it your intention to be employed? [APPELLANT]: Oh, yes. [ATTORNEY FOR APPELLANT]: Tell the Court what it is you are doing now and what do you intend to do. [APPELLANT]: Well I spoke with a lot of these same people and friends and felt that—considered law school, business school and for some reason I felt like I—I would pursue a business school career and—because I don’t like sitting. I like doing things and working and so I applied and—some business schools and was excepted [sic] to some schools in town and—and enrolled at George Washington University full time last August, and I finished the first year and am taking a couple summer courses now too. Appellant receives $10,000 a month in non-taxable disability benefits from three insurance policies. Although appellant owned these policies prior to the marriage, some of the premiums were paid during the marriage.

Two of the policies permit appellant “to enjoy the benefits” so long as he is unable to “practice anesthesiology.” The third policy pays no benefits if appellant does any kind of work. And, one policy has a five year limit. ³⁷⁹ As to the parties’ employment opportunities, neither side presented expert testimony. With regard to appellant, appellee’s lawyer observed during cross-examination that there was no “mention” in the Hazelden records suggesting that “it was not advisable” for appellant “to go back into medicine” or “practice medicine.” The following testimony is also noteworthy: [APPELLEE’S COUNSEL]: And despite the fact that you are only going to class for 11 credits from September of 2000 up until I guess May of this year [i.e., 2001], you didn’t look for any work during that time, did you? [APPELLANT]: Eleven is a full time load. [APPELLEE’S COUNSEL]: Okay. Did you look for any part time work, Doctor, during that nine month period? [APPELLANT]: No. No, I did not. [APPELLEE’S COUNSEL]: You weren’t going to school at all between December 1st, 1999, and September 1st, 2000, wTere you? [APPELLANT]: No, I was not. [APPELLEE’S COUNSEL]: And did you look for any part time work or any work at all during that time to help try to support your son? [APPELLANT]: No, I didn’t. [APPELLEE’S COUNSEL]: You just relied on this $10,000 a month you were getting on the disability insurance, correct? [APPELLANT]: I felt it was more important to get healthy and spend time with my son. [APPELLEE’S COUNSEL]: Okay.

There are a lot of things you could do with a medical degree other than practice anesthesiology in the operating room, isn’t there? [APPELLANT]: I’m sure there are. [APPELLEE’S COUNSEL]: And you haven’t looked into any of those, have you? [APPELLANT]: I considered pain [management] and I considered doing psychiatry. ³⁸⁰ [APPELLEE’S COUNSEL]: And you considered those in December and January of 1999, 2000, but nothing since. [APPELLANT]: That’s correct. [APPELLEE’S COUNSEL]: You could do insurance physicals and get paid piecemeal at the present time, couldn’t you, Doctor? [APPELLANT]: I guess I could do a lot of things. During the separation, appellant “liquidated” his retirement accounts and “spent” over $200,000 of that money. In addition, appellant asserted that he borrowed $34,700 from his father after the separation to pay counsel fees, mortgage payments, alimony, and child support. He also acknowledged that he had received $180,000 in disability income during the separation.

He conceded that “none of that money [was] left.” Yet, appellant denied that he lived lavishly. When asked where his “money [has] gone,” appellant noted that he also used some of the money to pay for business school. Further, he testified: From the time of marriage half—a significant and part of the money went into our home [new marital home], about half our—my retirement plan. The rest of it was spent this past year on medical expenses.

Whether it was Hazleton [sic] or follow up other care. It’s been a—legal bills. Significant legal bills, school, rent. I did buy a computer, a lap top computer and that was my lavish expense.

Copies of the parties’ federal income tax returns were introduced in evidence. For 1996, the parties’ joint return reflected $437,201 in total income, with an adjusted gross income of $396,765. Based on the statement of “Profit or Loss From Business,” Dr. Malin received $421,841 in business income. According to the parties’ joint 1997 federal tax return, they had $400,609 in total income and $361,563 in adjusted gross income.

Dr. Malin reported net income of $372,688. ³⁸¹ The parties filed separate returns in 1998. Appellee had wage income of $44,417 and an adjusted gross income of $44,428. Dr. Malin reported $73,234 in income and $62,200 in adjusted gross income. On her 1999 tax return, Ms. Malin reported wage income of $39,654 and an adjusted gross income of $40,709.

Appellant’s 1999 adjusted gross income increased to $311,029. In particular, Dr. Malin reported $105,434 in income and an IRA distribution of $224,000. For 2000, appellee’s adjusted gross income increased to $51,919, because of a gain from the sale of the marital home. But, her wages decreased to $31,960.

Dr. Malin’s 2000 tax return was not introduced in evidence. Appellee’s 401(K), acquired during the marriage, was valued at $21,154. She also had $6,800 in jewelry; $2,000 in furniture; a 1999 Lincoln Navigator, valued at $27,900; a membership in Woodmont Country Club, valued at $22,000; and $7500 worth of china, silver, and crystal. Appellant purchased a membership at the Robert Trent Jones Golf Club for $60,000 “in the year or so prior to the marriage.” Despite only claiming to have played golf twice in the past two years, appellant incurred membership costs for the Club during the separation, paying $6,800 in 1999; $7,440 in 2000; and $8,800 in 2001.

According to appellant, if he resigned from the club he might be entitled to a refund of about $36,000. Appellant also had a 1999 Ford Expedition worth $25,700; jewelry valued at $2,000; furniture valued at $10,000; and a Robert Trent Jones golf club bond, valued at $6,300, refundable without interest upon resignation from the club. The parties incurred substantial debt for legal services and costs associated with this case; each party spent well over $100,000 in attorneys’ fees. Appellant also incurred a tax obligation of more than $100,000 because of the liquidation of his retirement funds.

Appellee sold her engagement ring for $31,000, and used the proceeds to hire a private investigator. Her father paid an additional $50,000 for the private investigator. ³⁸² At the conclusion of the trial, the court rendered a comprehensive oral opinion, almost thirty pages in length, which was later embodied in a thorough written opinion. Among other things, the court granted appellee an absolute divorce on the ground of a one-year voluntary separation. Noting, inter alia, that the marriage “was short in duration,” that “Dr. Malin was essentially the sole supporter of the family with his large salary,” that ■ appellee’s non-monetary contributions were “priceless,” and that appellant’s conduct was the primary cause of the couple’s “estrangement,” the court awarded appellee rehabilitative monthly alimony of $3,500 for a period of five' years, but denied her request for indefinite alimony.

Among other things, the court said: Although Dr. Malin has depleted his retirement funds and other assets, he is still capable of producing a generous amount of income. He is currently receiving a large amount of disability payments, and I have already commented about the fact that he already has his credentials, and such credentials may be viewed as money in the bank for a person who can go out and practice his profession. With regard to child support, the court found that Dr. Malin had voluntarily impoverished himself. It reviewed the “factors to be considered in determining whether a parent has become voluntarily impoverished ...,” and concluded that Dr. Malin “is a very capable man, as he has indicated by his past performance what he is capable of doing earning—wise.” Although the court :did not discredit appellant’s testimony as to the advice he received about continuing his medical career, the court noted that he had not attempted to secure employment.

It said: [I]t is not the role of this court to displace the advice [appellant] may have been given by any doctor that he may be seeing in this case. Now, I understand that he has earned and is receiving a substantial—what most would find substantial—disability payment, $10,000.00 per month, but I also understand from the testimony that he really hasn’t ³⁸³ sought employment because he has chosen to enter graduate school and to prepare himself for other endeavors. The court attributed $1,950 in monthly income to appellee based on her schedule of fifteen hours of work per week, and found that the parties had a combined monthly income in excess of $10,000. With regard to the matter of appellant’s potential income, the court stated, in part: Although Dr. Malin is suffering from an addiction, he has been able to attend school and is performing well in an MBA program.

These courses are not easy. These studies are not easy, and even with the addiction treatment that he is going through, he has been able to do that. He would be equally able to seek employment. He has made no efforts to continue the practice of medicine and even stated at one point that he wouldn’t practice anesthesia anymore.

Now, don’t be misled in suggesting that the Court is drawing any negative inference from the fact that Dr. Malin chose to remove himself from a situation in which probably every morning at the crack of dawn he would have in his hands some controlled substances that have been the cause of him having a problem, I understand that. It is probably a very intelligence [sic] decision, but as I have said earlier, that is not the only thing he is capable of doing, and he has chosen not to work, to go back to school, and I recognize that that has played a large role in his decision not to practice anesthesia. Nevertheless, the Court understands that there are many other options available to Dr. Malin in the field of medicine. His decision to change career paths was a voluntary decision.

It wasn’t forced upon him. He chose to do that, and if you—if you make that decision, then the ramifications of that decisions [sic] when it comes to such things as your child support obligations, you must accept. ³⁸⁴ After careful consideration of the relevant case law and the statute, the Court finds that Dr. Malin, as I said, has voluntarily impoverished himself. Accordingly, the court ordered appellant to pay $1,500 per month in child support. In reaching that decision, the court said: I might also note parenthetically [appellant’s] decision not to seek more gainful employment, on cross-examination it was not lost on the Court that questions were asked concerning whether or not you have even considered some part-time work, maybe not getting back—fully involved with the medical practice in some fashion on a full-time basis but maybe ... step-by-step or other things that you might be able to do perhaps administratively which don’t even involve the actual touching of ... medication—of being present where medication is, and that decision hasn’t been made.

Nevertheless, the Court finds as a matter of fact—and factored into the decision of child support and alimony, as well, that the decision was made to maintain membership at an exclusive Robert Trent Jones Golf Club. It is not a criticism. It is an observation. It is a matter of fact.

If you have child support and others [sic] which we will get to, those decisions certainly were factored into the Court’s decision in this case. In the context of it discussion of alimony, the court said: The court finds that Dr. Malin has taken purposeful steps at decreasing his income and therefore finds [in regard to] the child support analysis ... that [Dr. Malin] has voluntarily impoverished himself. Quite candidly, I was pleased to learn toward the end of the case—and it came out during cross-examination that Dr. Malin has not lost his license to practice medicine. This is very, very fortunate, and it is good.

He is still a-physician, and I might add, a bright and able physician. The incidence of physicians who have problems with controlled dangerous substances [happen] because of a lot of reasons, perhaps the stress of a hard and difficult ³⁸⁵ occupation, perhaps the easy availability of substances to medical personnel, including doctors. All of those factors probably weigh heavily into the fact that many people in the medical field end up with these kinds of problems, but it is not necessary nor do most of them just quit the business. Dr. Malin being a bright young doctor could teach anesthesia.

He could practice in other areas of medicine. There are a number of things with a person so credentialed that he could do. Now, he has made the choice that he is not going to do those things. It is not a question of whether that choice is good or bad, right or wrong, but that choice as rendered— has put him in a position where, at first blush, it may seem that he is not able to satisfy the responsibilities that he will continue to have even after this divorce decree is signed.

There is no requirement that he not go to work. Now, ironically, I listened to this testimony in this case, and I did not hear the testimony that you typically hear. I know sitting on the criminal side of the court, you see a lot of these cases where persons have this problem, and typically what you hear is that the patient had a ... surgical procedure, and while they were recovering the doctor prescribed certain medication to the person, which they became addicted to, and then they were unable to get off of the drug and it leads them down the road that Dr. Malin unfortunately took. I didn’t hear that in this case.

I suspect if that testimony and evidence were available, I would have heard it. I am going to attempt to analyze why he has the problem. I only make those comments so that Dr. Malin and Ms. Malin know that the Court has considered this—this issue and wrestled with this fact ad nauseam, and I find no reason why Dr. Malin can’t be more ... gainfully [employed] because at the moment, other than a part-time job which yields no income, he is not employed and he may find that he will need to be. ³⁸⁶ Concerning Samuel’s medical expenses, the court noted the “grave disparity” in estimates presented by appellant and appellee with regard to Samuel’s care and expenses. Therefore, the court ordered the parties to place $60,000 from their marital home escrow account into a medical fund for the child, and ordered payment of “the therapeutic expenses for the child ... in proportion to the parties’ income.” With regard to property distribution, the court noted that “the decision to award alimony and the decision to award a monetary award are inextricably connected.” The court ordered the parties to divide equally “the proceeds from the sale of the house that was titled as tenants by the entirety and currently held in an escrow account,” but declined to grant appellant a monetary award.

Thereafter, the court issued a Judgment of Absolute Divorce, dated July 24, 2001, which was docketed on August 2, 2001. The court also issued an eighteen-page written “Opinion,” docketed on August 2, 2001, which was generally consistent with its oral ruling. In its Opinion, the court carefully reviewed the statutory factors regarding alimony, set forth in Md.Code (1999 Repl.Vol., 2000 Supp.), Family Law Article (“F.L.”) § 11 106(b). The court said, in part: 1) The ability of the party seeking alimony to be wholly or partly self-supporting: Mrs. Malin is a law school graduate not yet admitted to practice.

Clearly, she is capable and has the great potential of being wholly self-supporting. Currently, however, the Court finds that she is not ready for that. She has been out of the job market deferring her career goals in order to be available for her husband and child. The decision to have her be a stay-at-home mom was a joint one. . 2) The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable, employment: Mrs. Malin will need a reasonable period of time to re-enter the job market.

If she chooses a legal career, it will not be a re-entry but an entry ³⁸⁷ as she has never practiced law before. She must sit for the bar exam and seek gainful employment. 3) The standard of living that the parties established during their marriage: The parties established a high standard of living. They have always lived under exclusive zip codes in Bethesda and Potomac. The taste in the finer things of life has not gone unsatisfied.

The high life style was affordable for Dr. Malin whose salary approached $420,000/ year during the marriage. Mrs. Malin, on the other hand, has never made more than $30,000 a year. 4) The duration of the marriage: The parties may have only been married three years, but a full three years it has been. During those three years Dr. Malin was arrested and charged with obtaining a controlled dangerous substance by fraud. He went through drug rehabilitation and terminated his $420,000/year medical practice.

The parties have also become parents of a lovely child who, unfortunately, has some therapeutic needs. 5) The contributions, monetary and non-monetary, of each party to the ivell-being of the family: Dr. Malin was essentially the sole supporter of the family with his large salary of approximately $420,000 per year. Mrs. Malin’s non-monetary contributions have been priceless. She has been the primary caretaker of both the parties’ son and Dr. Malin. It was Mrs. Malin who, with the help of her father Dr. Harvey Mininberg, orchestrated the retention of Barry Helfand, Esq., to get Dr. Malin out of jail.

It was not lost on the Court that Dr. Malin was not charged for these services. Mrs. Malin cared for their son while Dr. Malin was in drug treatment. She arranged for their family, including Dr. Malin, to live with her parents while the parties’ marital home was under construction. 6) The circumstances that contributed to the estrangement of the parties: It is abundantly clear that Dr. Malin’s drug addiction, arrest, and treatment debilitated the parties’ marriage like a “carcinogenic cell.” The pain, mistrust, and disappointment became so acute as to have a terminal effect on this marriage. Mrs. Malin’s contribution to the es ³⁸⁸ trangement of the parties was benign, comparatively speaking. ... 7) The age of each party: The relative age of the parties is of no real moment. 8) The physical and mental condition of each party: Dr. Malin has a substance abuse problem, has been involved in drug therapy, and continues to require AA meetings.

Based upon Dr. Malm’s conduct after his arrest and completion of therapy, an immediate and full recovery from his addiction is guarded. There is no issue with the physical and mental condition of Mrs. Malin. Her response to Dr. Malm’s conduct is considered by the Court to be an appropriate one. 9) The ability of the party from'whom is sought to meet that party’s needs while meeting the needs of the party seeking alimony: Dr. Malin is clearly capable of making much more money than the $10,000/month that he now réceives from his “disability” insurance. He has chosen to cease the practice of medicine and pursue his MBA.

There was testimony that Dr. Malin said during an altercation between the parties, “I am not practicing anesthesia anymore [sic], you can divorce me if you want to.” The Court finds that Dr* Malin has taken purposeful steps at decreasing his income, and therefore finds in the child support analysis that he has voluntarily impoverished himself. (Discussion follows) 10) Any agreement between the parties: In this case there was no agreement between the parties concerning alimony. 11) The financial needs and financial resources of each party: (i) all income and assets, including property that does not produce income; (ii) any award made under §§ 8-205 and 8-208 of this article; (Hi) the nature and amount of the financial obligations of each party: Although Dr. Malin has depleted his retirement funds and other assets, he is still capable of producing a generous amount of income. He is currently receiving a large amount of disability payments each month. In addition, Dr. Malin still has his credentials. ³⁸⁹ 12) The twelfth factor is not applicable in this case.

After careful consideration of the relevant case law and the statute, the Court awards rehabilitative alimony to the Plaintiff, Mrs. Malin, in the amount of $8,500 per month for a period of five years from the date of this order. In reaching its decision to deny indefinite alimony, the court reasoned: “[T]he evidence is clear that [appellee] is capable of becoming self-supporting,” but “it will take some time to reach this goal.” The court added: Mrs. Malin may never make enough income to enjoy the lifestyle that the parties enjoyed when married, but she will undoubtedly be able to make a decent living if she is given the time and tools to do so. Because of these reasons, the Court finds that an award of indefinite alimony would not be appropriate in this case. In addition, the court’s Judgment provided that the alimony payments will be “non-taxable” to appellee.

Further, the court found that, “for purposes of the child support analysis,” Dr. Malin had “voluntarily impoverished himself.” In reaching its decision as to voluntary impoverishment, the court wrote: Factors to be considered in determining whether a parent has become voluntarily impoverished are as follows: 1. his or her physical condition; 2. his or her respective level of education; 3. the timing of any change in employment or financial circumstances relative to the divorce proceedings; 4. the relationship of the parties prior to the 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 ³⁹⁰ 10. any other consideration presented by either party. The court continued: Dr. Malin appears to be physically fit. He is clearly capable of being employed based on his credentials and education. He has chosen to enter graduate school and pursue other endeavors.

Although Dr. Malin is suffering from an addiction, he has been able to attend school and is performing quite well in his MBA studies. He has made no efforts to continue the practice of medicine and even stated that he would not practice anesthesia anymore [sic]. The Court recognizes that Dr. Malm’s addiction has played a large role in his decision not to practice anesthesia. The court recognized that, because it found appellant voluntarily impoverished, it was required to ascertain his potential income.

It said: Section 12—201(f) states further that, “potential income” means income attributed to a parent determined by the parent’s employment potential and probable earnings level based on, but not limited to, recent' work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. . However, the court never imputed a particular income to appellant. It found that appellant receives $10,000 each month in disability payments; that appellee has a monthly income of about $1,950; and the parties’ combined monthly income exceeds $10,000 per month. Because the parties’ combined monthly income exceeded $10,000, the court recognized that it has “discretion ... to determine ... the level of child support.” The court also said: After careful consideration of the relevant case law and statute, the Court finds that Dr. Malin has voluntarily impoverished himself.

This determination is made in order that a record will be made of the Court’s finding and analysis. The parties’ income (even with Dr. Malin on disability) surpasses the guideline amount of $10,000 per month, therefore the finding of voluntary impoverishment ³⁹¹ will play a de minimus role in the calculation of child support. Noting that appellant continued to maintain his membership in a prestigious golf club, the court concluded that appellant had the means to support his child, and awarded monthly child support of $1,500. The court said: The Court finds that the Defendant shall pay to the Plaintiff the amount of $1,500 in child support per month.

(It was not lost on the Court that Dr. Malin has continued his association with the Robert Trent Jones Golf Club during this litigation. If Dr. Malin has sufficient funds to belong to an extremely prestigious golf club, he certainly has the funds to support his child at the standard that the child would have maintained had the parties remained married.) Pointing out that its “comments are not meant to be critical of Dr. Malin,” the court said: “Nevertheless, the Court understands that there are many other options available to Dr. Malin in the field of medicine. His decision to change career paths was a voluntary decision.” As to Samuel’s medical expenses, the court ruled: It was well established that the parties’ child has considerable therapeutic needs. The plaintiff estimated on her financial statement that the child’s expenses per year equal $62,363.49.

On the other hand, the Defendant states in his financial statement that the child’s therapeutic and school expenses total $40,000 per year. There is great disparity between these two figures. It was stated that the parties are hopeful that the child’s therapeutic expenses will decrease as he gets older or that some of the costs will be defrayed by lesser expensive County options or insurance reimbursements. The Court finds that the most appropriate way to provides [sic] for the child’s expenses is to have $60,000 from the ...

Escrow Account [from the proceeds of the sale of the marital home] placed in the medical fund that was established for the child. [Appellee] will have control over ³⁹² the account and disburse the funds accordingly. The Court finds that the therapeutic expenses for the child shall be paid in proportion to the parties’ income. Currently, [appellant’s] income is $10,000 per month and [appellee’s] income is roughly $2,000 per month, for a total of $12,000 per month. [Appellee’s] income is roughly 16% of the total income and [appellant’s] income is roughly 84% of the parties’ total income. [Appellee] therefore is responsible for depositing $9,600 in the medical fund and [appellant] is responsible for depositing $50,400 in the medical fund. The Court is unable to predict the therapeutic expenses of the minor child in the years to come.

In this case, the Court finds that the parties shall continue to share these expenses on a percentage basis. With respect to property distribution, the court observed that such awards are discretionary, and reviewed the three-step process that governs such awards. It valued the parties’ escrow account, containing proceeds from the sale of the marital home, at $269,700. Further, it found that the account was “partially marital property and partially non-marital property.” Although it recognized that appellant contributed over $230,000 of non-marital funds to acquire the marital home, the court said: “The parties are to split (50/50) the proceeds from the sale of the house that was titled as tenants by the entireties and is currently held in the escrow account.” The court also valued appellant’s Oppenheimer SEP IRA at $4,920, and found that it was marital property; it found that appellant’s 401K account was marital property, but accepted his claim that it had a value of zero; it found appellee’s wedding ring was non-marital property; and determined that the $10,000 in monthly disability payments to Dr. Malin are non-marital property.

In addition, the parties agreed that appellee’s 401(K) was valued at $21,154. After addressing the applicable statutory factors, the court declined to grant a monetary award to either party, finding that, “aside from the [marital home] Escrow account, there ³⁹³ are not sufficient assets remaining between the parties to provide a monetary award.” Further, the court reasoned: The Court considered the totality of the trial, the evidence submitted, and the testimony of the witnesses. In addition, the Court considered the fact that Dr. Malin has had $206,000 available to him since January 2000, in addition to the disability that he received monthly. Dr. Malin was unable to account for the majority of these funds.

The Court considered that either all or a substantial amount of these funds have been dissipated. After careful consideration of the statutory factors, the Court declines to grant a monetary award. The clear intent of the provisions governing disposition of property is to counterbalance unfairness that may result from the actual distribution of property acquired during the marriage strictly in accordance with its title. Finally, the court noted the “contentious” nature of these kinds of cases and commended the attorneys for the quality of their work and their professionalism.

It then ordered appellant to contribute $60,000 towards appellee’s attorney’s fees, which was promptly reduced to judgment. We shall include additional facts in our discussion. DISCUSSION I. Appellant contends that the court erred in finding that he was voluntarily impoverished. Moreover, appellant asserts that, even if the court correctly determined that he is voluntarily impoverished, the court erred by failing to impute potential income to him.

Further, he complains that the court erred because it failed to impute additional income to appellee. A. In essence, the court determined that appellant voluntarily impoverished himself because he chose to abandon his medical career and train, instead, for a career in business. The court ³⁹⁴ apparently considered it unreasonable for appellant to attempt to extricate himself from the field of medicine and its ready access to drugs, despite appellant’s prolonged history of substance abuse, the court’s recognition that appellant’s chances for a complete recovery are “guarded,” and appellant’s receipt of $10,000 per month in tax-free disability insurance benefits. Rather, the court was of the view that appellant could find work in the medical field, more lucrative than the $120,000 he receives annually in non-taxable disability benefits. 5 , According to appellant, the evidence did not show that he • deliberately intended to lose his job or to become dependent on drugs as a way to voluntarily impoverish himself.

Rather, he asserts that, because he suffers from a substance abuse problem, it is not in his best interest to continue to practice medicine. Further, appellant complains that the court merely “surmised that there must be jobs available ... in the medical field.” Dr. Malin also complains that the court used “inconsistent standards when judging the voluntary impoverishment of the parties.” In his view, it is appellee who is voluntarily impoverished. He explains: The court found that the Husband had voluntarily impoverished himself but failed to find that Wife had voluntarily impoverished herself. Wife was under no medical disability, Husband was.

Wife was not fired from her job, but voluntarily cut her employment back from 30 hours a week to 15 hours a week. Husband was fired from his employment. Wife curtailed her employment, drastically reducing the hours she worked during this litigation. Husband lost his job before the parties separated.

Wife did nothing to seek other employment. Husband sought other employment and was rejected as a result of his medical problems. Wife was not seeking retraining; she was fully trained as a lawyer, under no disability, but was refusing to work more than 15 hours a week. Husband was actively pursuing retraining ³⁹⁵ for a career in another area, away from medicine and away from the temptations of mind-altering substances.

What evidence there is in this case of voluntary impoverishment strongly suggests that it was Wife, rather than Husband, who was voluntarily impoverished. Appellee counters that the court clearly considered the factors set out in Goldberger v. Goldberger, 96 Md.App. 313 , 624 A.2d 1328 , cert. denied, 332 Md. 453 , 632 A.2d 150 (1993), to determine that appellant is, indeed, voluntarily impoverished for purposes of child support. Noting that appellant’s decision was an exercise of “his own free will,” she asserts: “The intent question is whether the parent or spouse intentionally became impoverished, for any reason, as opposed to whether the parent or spouse became impoverished with the intent of avoiding support payments.” “It is well established that parents have an obligation to support their children.” Durkee v. Durkee, 144 Md.App. 161, 182 , 797 A.2d 94 , cert. denied, 370 Md. 269 , 805 A.2d 266 (2002); see Middleton v. Middleton, 329 Md. 627, 633 , 620 A.2d 1363 (1993); Sczudlo v. Berry, 129 Md.App. 529, 542 , 743 A.2d 268 (1999). Thus, Title 12 of the Family Law Article (“F.L.”) of the Maryland Code (1999 Repl.Vol.) provides a comprehensive scheme with regard to child support.

With regard to calculating child support, “ ‘a parent shall be considered “voluntarily impoverished” whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources.’ ” Wills v. Jones, 340 Md. 480, 494 , 667 A.2d 331 (1995) (citation omitted); see Petitto v. Petitto, 147 Md.App. 280, 314 , 808 A.2d 809 (2002); Durkee, 144 Md.App. at 182 , 797 A.2d 94 ; Digges v. Digges, 126 Md.App. 361, 381 , 730 A.2d 202 , cert. denied, 356 Md. 17 , 736 A.2d 1065 (1999). A parent is not excused from support because of a tolerance of or a desire for a frugal lifestyle. See Moore v. Tseronis, 106 Md.App. 275, 282 , 664 A.2d 427 (1995). Indeed, the law requires a “parent to alter his or her ... lifestyle if necessary to enable the parent to meet his or her ³⁹⁶ support obligation.” Goldberger, 96 Md.App. at 327 , 624 A.2d 1328 ; see Sczudlo, 129 Md.App. at 542 , 743 A.2d 268 .

In analyzing the issue of voluntary impoverishment, the trial court must consider all of the “enumerated factors” in F.L. § 12-201®. Wills, 340 Md. at 490 , 667 A.2d 331 . These include recent work history, occupational qualifications, and “prevailing job opportunities.” Id. In addition, the court may consider other factors, including: 1. his or her current physical condition; 2. his or her respective level of education; 3. the timing of any change in employment or financial circumstances relative to the divorce proceedings; 4. the relationship of the parties prior to the 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.

Goldberger, 96 Md.App. at 327 , 624 A.2d 1328 (citing John O. v. Jane O., 90 Md.App. 406, 422 , 601 A.2d 149 (1992)); see Durkee, 144 Md.App. at 183-84 , 797 A.2d 94 ; Wagner v. Wagner, 109 Md.App. 1, 42-45 , 674 A.2d 1 , cert. denied, 343 Md. 334 , 681 A.2d 69 (1996). The seminal case of Wills v. Jones, supra, 340 Md. 480 , 667 A.2d 331 , is instructive. There, the Court of Appeals considered “whether penal incarceration constitutes a material change of circumstances sufficient to justify the modification of a child support award ... and whether an incarcerated parent should be considered voluntarily impoverished” under F.L. § 12-204(b). Id. at 483, 667 A.2d 331 .

The Court explained that “voluntary” means that “the action [must] be both an exercise of unconstrained free will and ³⁹⁷ that the act be intentional.” Id. at 495 , 667 A.2d 331 . The Court reasoned: “In determining whether a parent is voluntarily impoverished, the question is whether a parent’s impoverishment is voluntary, not whether the parent has voluntarily avoided paying child support. The parent’s intention regarding support payments, therefore, is irrelevant.” Id. at 494 , 667 A.2d 331 . Therefore, the Court determined that “a prisoner’s incarceration may constitute a material change of circumstance if the effect on the prisoner’s ability to pay child support is sufficiently reduced due to incarceration.” Id. at 483 , 667 A.2d 331 .

Of significance here, the Court in Wills indicated that, “[t]o determine whether a parent is voluntarily impoverished ... a court must inquire as to the parent’s motivations and intentions.” Id. at 489 , 667 A.2d 331 . It concluded that an incarcerated parent cannot be deemed “ ‘voluntarily impoverished’ unless he or she committed a crime with the intent of going to prison or otherwise becoming impoverished.” Id. The Court said: “Our review of the language and legislative history of the child support guidelines leads us to conclude that the legislature intended that a parent’s support obligation can only be based on potential income when the parent’s impoverishment is intentional.” Id. at 494 , 667 A.2d 331 . The Court explained that a parent “is only ‘voluntarily impoverished’ as a result of incarceration if the crime leading to incarceration was committed with the intention of becoming incarcerated or otherwise impoverished.” Id. at 497 , 667 A.2d 331 .

It reasoned: For an action to be “voluntary,” we have consistently required that the action be both an exercise of unconstrained free will and that the act be intentional.... We have addressed the question of “voluntariness” at length in the context of whether an employee left her past employment voluntarily, and therefore should be barred from collecting unemployment benefits. Allen v. Core Target Y. Prog., 275 Md. 69 , 338 A.2d 237 (1975). There, as here, the term “voluntarily” was not defined by the statute. ³⁹⁸ Id. at 77 , 338 A.2d 237 .

After reviewing the common usage of “voluntary” as defined in a dictionary, we found that the phrase “due to leaving work voluntarily” has a plain, definite and sensible meaning, free of ambiguity; it expresses a clear legislative intent that to disqualify a claimant from benefits the evidence must establish that the claimant, by his or her own choice, intentionally, of his or her own free will, terminated the employment. Id. at 79 , 338 A.2d 237 . Following this definition, we found that an employee who had been discharged from her job because she was unable or unwilling to perform it properly could not be said to have left “voluntarily.” Id. at 80 , 338 A.2d 237 .... Our inquiry here is similar to that made in the unemployment context.

In Allen , we noted that “if an employee is discharged for any reason, other than perhaps for the commission of an act which the employee knowingly intended to result in his discharge, it cannot be said that his or her unemployment was due to ‘leaving work voluntarily.’ ” Allen, supra, 275 Md. at 79 , 338 A.2d 237 (emphasis added). Thus, misconduct on the part of an employee is not sufficient to deem a subsequent termination of employment “voluntary” even if the employee’s termination was a foreseeable result of the misconduct. See id. at 80 , 338 A.2d 237 . To determine whether [the father’s] impoverishment is “voluntary,” a court must similarly ask whether his current impoverishment is “by his ... own choice, intentionally, of his ... own free will.” Allen, supra 275 Md. at 79 , 338 A.2d 237 .

The contention that [the father’s] incarceration and subsequent impoverishment should be considered “voluntary” because he made the free and conscious choice to commit a crime stretches the meaning of the word beyond its acceptable boundaries. [The father’s] incarceration can only be said to be “voluntary ” if it was an intended result. Id. at 495-96, 667 A.2d 331 (emphasis added). Stull v. Stull, 144 Md.App. 237 , 797 A.2d 809 (2002), is also noteworthy. There, the father had worked full-time as a general manager for a Pizza Hut and part-time for Blockbuster, earning a combined annual salary of approximately ³⁹⁹ $47,000.

Id. at 245 , 797 A.2d 809 . However, he was terminated by Pizza Hut for falsifying documents and then lost his job with Blockbuster. Id. The father, who was denied unemployment insurance, submitted only one employment application in the four month period between the time he was fired and the trial.

Id. The trial court concluded that he was voluntarily impoverished because his conduct had “caused [his] own discharge from work.” Id. at 248 , 797 A.2d 809 . Therefore, it imputed income to him of $47,000, equal to his earnings when he was working both jobs, and ordered him to pay $712 in monthly child support. Relying on Wills v. Jones, 340 Md. 480 , 667 A.2d 331 , the Stull Court reversed.

We concluded that there was no evidence that the father’s conduct, which culminated in his discharge, “was committed with the intention of becoming unemployed or otherwise impoverished.” Stull, 144 Md.App. at 249 , 797 A.2d 809 . Holding that the father was not voluntarily impoverished, the Court said, id.: The contention that the appellant’s unemployment should be considered “voluntary” because he made the free and conscious choice to falsify records stretches the meaning of the word intentional beyond its acceptable boundaries. The appellant’s unemployment can only be said to be “voluntary” if it was an intended result of his conduct. This Court’s decision in Moore v. Tseronis, supra, 106 Md.App. 275 , 664 A.2d 427 , also provides guidance.

There, the appellant, a divorced father who worked as an auto mechanic, relocated from Baltimore City to Garrett County when he remarried, because his new wife wanted to return to the area where she grew up. Due to the difference in the economy, the appellant’s earnings dropped substantially. Although appellant earned up to $37,491 while working in Baltimore City, his annual earnings plummeted to approximately $16,000 a year in Garrett County. Id. at 279-80 , 664 A.2d 427 .

Therefore, he asked the court to reduce the amount of his child support obligation, which had been set at $600 per month. Id. ⁴⁰⁰ The master found that appellant had voluntarily impoverished himself, reasoning that the appellant had “knowingly and voluntarily elected a life-style that would make it difficult, if not impossible, to meet his support obligation.” Id. at 280 , 664 A.2d 427 . The master then imputed $37,488 in income to appellant. Id.

The circuit court affirmed. Concluding that the circuit court erred in finding that appellant was voluntarily impoverished, we reversed. Id. at 283 , 664 A.2d 427 . The Court explained: We have no doubt that appellant’s income would have been greater than it now is if he had not moved from Baltimore to a less affluent area.

We do not believe, however, that a court can restrict a parent’s choice of residence in order to insure that he or she remains in or moves to the highest wage earning area. While a parent must take into consideration his or her child support obligation when making job and location choices, such considerations should not be immobilizing. In the case sub judice, appellant’s second wife always intended to return to her original home in Garrett County when she completed her education. It certainly does not appear that appellant was attempting to shirk his child support obligations, only that he was attempting to move to a more rural environment and to abide by his second wife’s wishes.

Indeed, the fact that when appellant first moved to Garrett County he took a job eighty miles form his home, commuting 160 miles each day to work as many hours as possible at the kind of job he was trained to do, hardly indicates an intention to impoverish himself or choose a life-style of ease or indolence. Id. at 283-84 , 664 A.2d 427 (emphasis added). Digges v. Digges, 126 Md.App. 361 , 730 A.2d 202 , is also of interest. The father had enjoyed a successful and lucrative law career until he was convicted of mail fraud, incarcerated for a period of approximately two years, and disbarred.

Id. at 365 , 730 A.2d 202 . Ms. Digges offered a vocational expert at trial, who testified as to the appellant’s potential earnings. Id. Mr. Digges claimed that he was unable to obtain full-time ⁴⁰¹ employment until he completed his master’s degree in Business Administration.

Id. at 366, 730 A.2d 202 . Initially, the trial court found that Mr. Digges was voluntarily impoverished and attributed potential income to him of at least $100,000. Id. at 368-69, 730 A.2d 202 . In Mr. Digges’s first appeal, we affirmed the trial court’s ruling that appellant had voluntarily impoverished himself, but reversed the trial court’s finding that the father had a potential income of $100,000.

In reaching our conclusion as to voluntary impoverishment, we noted that appellant waited for more than a year after his release from prison to start a part-time graduate program and made little effort to secure employment. Id. at 370, 730 A.2d 202 . We said, id. at 369-70, 730 A.2d 202 : [T]he evidence was sufficient to show that the primary cause of appellant’s impoverishment was not his incarceration nor the loss of his law license but his total lack of interest or effort in attempting to find and secure regular, gainful employment. In contrast, we noted a lack of evidence in the record as to what appellant could expect to earn on a regular basis.

Id. Therefore, we remanded as to the matter of potential income and noted that, on remand, the trial court could receive additional evidence regarding the appellant’s potential income. Id. On remand, an expert in the field of vocational assessment and potential income testified on behalf of the wife.

Id. at 372, 730 A.2d 202 . The witness stated that appellant was best suited for a career in telecommunications consulting, and opined that appellant was capable of earning between $120,000 and $194,000. Id. at 372, 730 A.2d 202 . In addition, the expert noted that appellant was capable of overcoming much of the stigma associated with his disbarment and conviction.

The trial court found that appellant still continued to resist finding full-time employment. Indeed, appellant had failed to prepare a curriculum vitae, fill out a single job application, or meet even the minimum course requirements towards his MBA degree. Id. at 375, 730 A.2d 202 . The court then used ⁴⁰² a progressive scale to attribute potential income to appellant, which was partly based on appellant’s own admission that he expected to earn at least $50,000 in the upcoming year.

Id. at 375-77, 730 A.2d 202 . The court determined that appellant had the potential to earn $85,000 annually from October 1994 to October 1996, and as much as $150,000 from October 1998 to October 1999. Id. at 375-76, 730 A.2d 202 . Again, appellant appealed, and complained about the potential income attributed to him for purposes of child support and alimony.

This time, however, we affirmed. We did so because the court’s finding was based on the evidence in the record. Guided by the above cases, we turn to consider the case sub judice. In our view, the court erred in concluding, on this record, that appellant was voluntarily impoverished.

Appellant’s history with substance abuse is, unfortunately, a long one, dating to 1987, when he was a medical resident. Appellant testified that, after his relapse in 1999, he decided it was not in his interest to remain in medicine. Therefore, he decided to pursue a new career in business and enrolled as a full time student in graduaté school. While doing so, he receives $10,000 of non-taxable income each month from his disability insurance policies.

In effect, the court regarded appellant as underemployed. Nevertheless, the court acknowledged that appellant is “suffering from an addiction,” which “has played a large role in his decision not to practice anesthesiology].” Further, the court recognized that appellant’s chances for an “immediate and full recovery from his addiction” are “guarded.” Nevertheless, the court’s finding of voluntary impoverishment was predicated on Dr. Malm’s decision to abandon his career as a physician. In the court’s view, Dr. Malin has many lucrative “options” available to him in medicine. Significantly, there was not a shred of evidence that appellant gave up his medical career to avoid his duty of parental support.

Appellant’s relapse led to his conduct in falsifying a prescription, which then resulted in his arrest. While we do ⁴⁰³ not condone appellant’s conduct, we agree with appellant that