Odunukwe v. Odunukwe

FISCHER, Judge. Aggrieved by the outcome of his divorce proceeding, Ebube E. Odunukwe appeals the decision of the Circuit Court for Anne Arundel County. Dr. Odunukwe presents the following questions for our review: ²⁷⁶ 1. Did the circuit court err in awarding Mrs. Odunukwe a monetary award of $60,000 and entering a judgment against Dr. Odunukwe in that amount when the parties stipulated that the marital equity in the family home was $18,400, which the lower court divided equally among the parties, and the evidence revealed that the remaining marital property was valued at a minimum of $6,302.76 but no more than $42,302.76? 2.

Did the circuit court err in ordering Dr. Odunukwe to spend approximately eighty-one percent of his net monthly income for alimony, child support, health insurance and mortgage payment and other costs of the family home during the three year possession and use period? 3. Did the circuit court err in ordering Dr. Odunukwe to pay rehabilitative alimony for a period of twelve years where the evidence established that Mrs. Odunukwe would need only three to five years to obtain her doctoral degree in her career field? 4. Did the circuit court err in ordering Dr. Odunukwe to contribute to Mrs. Odunukwe’s attorney’s fees, deposition expenses and court costs where there was insufficient evidence to establish that Mrs. Odunukwe had substantial justification for withholding visitation, retaining seven attorneys or that Mrs. Odunukwe lacked financial resources to pay her fees? 5. Did the circuit court err in ordering a visitation schedule that is contrary to the visitation schedule agreed upon by the parties and placed on the record before the lower court?

Ebube E. Odunukwe and Stella O. Odunukwe had been married for twelve years when their divorce proceeding commenced on July 31, 1992. For more than two years prior to the trial, the parties lived in separate residences. Mrs. Odunukwe remained in the family’s Glen Burnie home, while Dr. Odunukwe rented an apartment in Ellicott City. The parties’ three children, Chiwuze, born August 29, 1982, Ubachukwu, ²⁷⁷ born November 23, 1985, and Azubuike, born March 1, 1989, occupied the family home along with Mrs. Odunukwe.

Dr. and Mrs. Odunukwe were born in the same area of Nigeria but did not meet until 1978 while they were both studying at the University of Illinois in Chicago. The couple was married in a civil ceremony on March 10, 1979. Subsequently, they participated in a cultural ceremony in accordance with their traditions. In the fall of 1979, Dr. Odunukwe began medical school at Rush Medical College in Chicago, and the couple resided in the married students’ dormitory.

Mrs. Odunukwe was then a graduate student at the University of Illinois School of Public Health. Mrs. Odunukwe received her master’s degree in 1982, and Dr. Odunukwe graduated from medical school the following year. During these years, the couple’s income was minimal as they financed their education. In June, 1983, after Dr. Odunukwe graduated from medical school, he began an internship at Illinois Masonic Hospital.

His annual salary was $18,000. That same year, Mrs. Odunukwe worked full-time, and the couple’s joint income for 1983 totalled $20,792. Unfortunately, 1983 also signalled the start of marital problems for the parties. Mrs. Odunukwe accused her husband of infidelity and physical abuse — charges that Dr. Odunukwe denies.

Dr. Odunukwe attributes the parties’ estrangement partially to a pattern of what he labels “false accusations of infidelity.” In addition, Dr. Odunukwe points to self-esteem problems that he claims Mrs. Odunukwe began experiencing. The parties moved to New York City in June, 1984 when Dr. Odunukwe began a three-year residency at Harlem Hospital. During this time, the parties’ second child was born. Dr. Odunukwe supplemented his residency salary by working at another hospital on evenings and weekends.

Mrs. Odunukwe, meanwhile, obtained a position as a dietician at Jacobi Hospital. Despite these demanding schedules, Dr. Odunukwe felt that he and his wife made time to enjoy their children. To the ²⁷⁸ contrary, Mrs. Odunukwe felt that her husband had no time for the family. By the time that Dr. Odunukwe completed his residency in 1988, the parties, who were then expecting their third child, had decided not to raise their children in New York City.

The family then relocated to Glen Burnie, because Dr. Odunukwe knew a doctor there who was selling his medical practice. Both parties liked the location and thought that it would be a better place for their children. The parties purchased a two bedroom condominium in Glen Burnie, 1 but Dr. Odunukwe later learned that the medical practice he had intended to join was not “a good deal.” Thereafter, Dr. Odunukwe became associated with a three-office optical company in Baltimore. Following the March, 1989 birth of the parties’ third son, Mrs. Odunukwe worked in temporary and part-time positions.

She then obtained employment as a dietician at Deaton Hospital in South Baltimore, a position she currently holds. In March, 1990, Dr. Odunukwe opened his sole ophthalmology practice in Glen Burnie. He presently maintains this practice. With the opening of the new practice, the couple’s marital problems were exacerbated.

An argument erupted on April 12,1990 when Dr. Odunukwe sought to take the children to McDonald’s for lunch. Mrs. Odunukwe alleged that Dr. Odunukwe struck her. Dr. Odunukwe responded that the incident was only a verbal argument precipitated by Mrs. Odunukwe’s refusal to allow the children to leave the house without her. Ultimately, Dr. Odunukwe agreed to vacate the family home and to establish his residence elsewhere.

During the separation, Mrs. Odunukwe would not allow Dr. Odunukwe to have the children visit with him, because Mrs. Odunukwe feared that Dr. Odunukwe would take the children to Nigeria and would not return. After a pendente lite hearing, the Circuit Court for Anne Arundel County issued, on ²⁷⁹ September 80, 1992, a schedule of unsupervised visitation for Dr. Odunukwe. In November, 1991, Mrs. Odunukwe again denied Dr. Odunukwe visitation with the children. Despite Dr. Odunukwe’s December, 1991 motion to enforce visitation rights and his request for emergency relief, a hearing was not scheduled on the matter until March, 1992.

Just prior to the hearing, a consent order “reinstating” visitation was filed, and Dr. Odunukwe’s visitation with the children resumed. Immediately after the parties separated, Dr. Odunukwe continued to pay the mortgage on the parties’ home, the condominium fees and other costs associated with the condominium, real estate taxes, and the children’s day care costs. Dr. Odunukwe stopped making the day care payment, however, when he learned that Mrs. Odunukwe was no longer taking the children to the babysitter and that Mrs. Odunukwe’s mother was, instead, watching the children. At one point, Dr. Odunukwe learned that, although he had been sending money to Mrs. Odunukwe for the mortgage payments, Mrs. Odunukwe had not been making the mortgage payments.

Dr. Odunukwe then began paying the mortgage company directly and deducting this amount from his payment to Mrs. Odunukwe. After conducting a hearing on the parties’ claim and counterclaim for absolute divorce, the court issued a written order dated September 1, 1992. In its order, the court granted an absolute divorce to Mrs. Odunukwe on the grounds of adultery and abandonment. The court awarded joint legal custody of the children to the parties.

Physical custody of the children was, however, granted to Mrs. Odunukwe with a liberal visitation schedule provided for Dr. Odunukwe. With regard to the issue of child support, the court ordered Dr. Odunukwe to pay $1,400 per month. The court also ordered Dr. Odunukwe to provide medical insurance for the children. 2 ²⁸⁰ Concerning alimony, the court awarded Mrs. Odunukwe monthly payments of $400 for a period of twelve years. Mrs. Odunukwe was also awarded use and possession of the family home for three years.

During those three years, Dr. Odunukwe was to pay the mortgage expenses and other costs associated with the condominium. After the expiration of the three years, the home shall be sold, and the parties shall receive equal shares of the proceeds. Mrs. Odunukwe also received a three year period of use and possession with regard to the parties’ 1986 Nissan Sentra. The court further noted that the parties had previously divided all personal property as well as personal debts and obligations.

In calculating a monetary award, the court listed the following items of marital property along with the noted values and liens: [Family residence] Value: $79,400 Mortgage: $62,471.97 1986 Nissan Sentra Value: $1,775 Lien: $1,189.54 1990 Mitsubishi Montero Value: $11,000 Lien: $14,433 [awarded to the husband] [Dr. Odunukwe’s medical practice] Value: $36,000 Debt: Not available Household Furnishing (Resolved by the parties — each to keep what is in their possession.) Life Insurance ²⁸¹ Cash Value: $2,900 Debt: $2,864.50 Cash Deposits in Bank (Wife) $880.48 — 6/29/92 (To remain with Wife) Bank Deposit (Husband) $1,489.13 — 5/25/93 (To remain with Husband) Retirement Plan/IRA Value: $1,057.19 (To remain with wife) Retirement Plan/IRA Value: $2,255 (To remain with husband) Personal Property Stereo, etc. Value: $2,500 (Resolved by parties) The court also ruled that realty located in Nigeria was marital property, but the court stated that the value of the property was unknown. The court concluded this portion of its order by granting a monetary award of $60,000 to Mrs. Odunukwe. The monetary award was reduced to a judgment to be paid by Dr. Odunukwe at the rate of $5,000 per year for twelve years. Last, the court ordered Dr. Odunukwe to pay $5,000 toward the cost of Mrs. Odunukwe’s attorneys’ fees.

This amount was also reduced to a judgment against Dr. Odunukwe. I. Monetary Award Dr. Odunukwe’s first assignment of error concerns the $60,000 monetary award granted to Mrs. Odunukwe. Dr. Odunukwe contends that this amount exceeds the total value of the marital property. Our calculations indicate that the $60,000 monetary award is greater than the value of the marital property.

As we stated in Ward v. Ward, 52 Md.App. ²⁸² 336, 343, 449 A.2d 443 (1982), “Since the function of a monetary award is to adjust the parties’ equities in the marital property, it is elemental that a court cannot make an award whose amount exceeds the total value of the marital property.” And of necessity, if the spouse to whom the court intends to grant a monetary award already owns (and thus will retain) any marital property, the award cannot exceed the value of the marital property owned by the other spouse. We must, therefore, vacate the monetary award and remand this issue to the circuit court for reconsideration. To assist the court on remand, we offer the following guidance. While it may be that, in order to adjust the equities, Mrs. Odunukwe is deserving of a monetary award, we caution the court to examine whether an equitable result is reached, if the entire value of the marital property is granted to Mrs. Odunukwe.

Also with regard to the marital property, we remind the court that a party asserting a marital interest bears the burden of proving that the property is in fact marital property, i.e., property acquired by either or both spouses during marriage. The same party also bears the burden of proving the value of the alleged marital property. Melrod v. Melrod, 83 Md.App. 180, 194 , 574 A.2d 1 , cert. denied, 321 Md. 67 , 580 A.2d 1077 (1990). As Mrs. Odunukwe failed to meet her burden with respect to either the ownership or the value of the realty located in Nigeria, the court should not in any way consider this property when resolving the financial issues in the case, unless upon rehearing appellee is able to offer satisfactory evidence of the status and value of the subject property.

Dr. Odunukwe also challenges the monetary award by claiming that the award is based upon an erroneous valuation of his medical practice. Dr. Odunukwe takes issue with the $36,000 valuation assigned by Mrs. Odunukwe’s expert. The court received, as a joint exhibit, evidence from accountants retained by each of the parties. Therefore, there was no question as to admissibility.

After considering the evidence, the court, acting within the bounds of its discretion, accepted ²⁸³ the evidence offered by appellee as the