Omayaka v. Omayaka

MURPHY, J. The parties to this appeal from the Circuit Court for Prince George’s County, 1 Colonel A. Omayaka (Appellant) and Josephine 0. Omayaka (Appellee), were married on October 2, 1998, and were divorced by a judgment signed at the conclusion of a July 5, 2007 hearing. After that judgment was entered on July 10, 2007, Appellant noted an appeal to the Court of Special Appeals, and filed a brief in which he presented a single argument: Appellant made a prima facie case and carried his burden of showing dissipation of marital assets during the pendency of the divorce[.] In the words of the brief filed by Appellee: Appellant failed to carry his burden of proof showing a dissipation of marital assets during the pendency of the divorce proceeding, where Appellee did not expend or move marital funds while the marriage was undergoing an irreconcilable breakdown with the principal purpose of reducing the funds available for equitable distribution, but rather, Appellee saved funds to use for family and household expenses. Before these arguments were presented to a panel of the Court of Special Appeals, this Court issued a 'writ of certiorari on its own initiative. 406 Md. 443 , 959 A.2d 792 (2008).

For the reasons that follow, we shall affirm the judgment of the Circuit Court. ⁶⁴⁷ Background On January 24, 2007, Appellee filed an “AMENDED COMPLAINT FOR DIVORCE” that included the following assertions: 5. [Appellee] and [Appellant] did voluntarily agree to live separate and apart on or about May 31, 2005, and have voluntarily lived separate and apart without cohabitation and without interruption since said date. There is no reasonable hope or expectation of reconciliation. 6. All property issues between the parties have been resolved. On February 23, 2007, Appellant filed an “ANSWER TO AMENDED COMPLAINT FOR ABSOLUTE DIVORCE” and a “COUNTER-COMPLAINT FOR ABSOLUTE DIVORCE AND OTHER RELIEF.” Appellant’s Answer included the following assertions: [Appellant] denies that all property issues between the parties have been resolved.

Indeed, upon the refinance and conveyance of the parties’ marital home on or about April 28th 2006, the parties understood that any proceeds due the [Appellee] would be paid into a trust account set up by [Appellee]’s counsel because [Appellee] had, without [Appellant’s knowledge and approval, transferred about $80,000.00 in martial funds. In a subsequent communication, [Appellee]’s counsel noted that he had released all but $40,00000 to the [Appellee] and that the rest was to be kept in escrow according to the agreement of the parties. To date, no accounting has been made with respect to how much money [Appellee] took and/or how it was spent. Appellant’s Counter-Complaint included the following assertions and requests: COUNT II DISSIPATION OF MARITAL ASSETS ⁶⁴⁸ 11. [Appellant] did refinance the marital home.

Pursuant to an agreement between the parties, [Appellee]’s counsel was to place her share of the proceeds in an escrow account until she had accounted for the transfer of marital funds in the amount of $80,000.00. By a June 13th 2006 communication, the parties understood that [Appellee]’s counsel was to release all but $40,000.00 to her and would provide an accounting of what, if anything, was taken and how the marital money was spent. To date[,] no such accounting has been provided. 12. [Appellee] has clearly dissipated the marital funds, these funds were transferred during the pendency of litigation and not spent for any family use purposes. Indeed some of these funds were wired to an overseas bank account and/or persons that [Appellant] is not aware of or was privy to.

WHEREFORE, the [Appellant] requests that the Court: a. Grant him an absolute divorce from the [Appellee]; b. Have [Appellee] ... account for any dissipation of any marital assets, including funds in bank accounts; c. Determine the value of marital property of the parties, and make a monetary award to [Appellant] after adjusting the parties’ rights in the marital property[;] d.

Reduce to a judgment in favor of [Appellant] against the [Appellee][;] e. Order [Appellee] to pay attorney’s fees, court costs and suit money[.] During a contentious July 5, 2007 hearing, which was punctuated with several sharp exchanges, Appellant’s counsel called Appellee as Appellant’s first witness on his Counter-Complaint. 2 Appellee’s testimony included the concessions that (1) ⁶⁴⁹ while married to Appellant, she opened two bank accounts in her name only, and (2) from March of 2005 through December of that year, she made “over the counter” withdrawals of approximately $80,000.00 from those accounts. Appellee, however, denied the allegation that she “dissipated” marital funds. The following transpired during Appellee’s testimony: [Appellant’s Counsel]: Q ...

Did you discuss with [Appellant] how you [spent] the money from these withdrawals? A When we lived together, each one of us had our own account. So the way I spend my money, I spend my own money, and he just spent his own money. The only joint account that we had is where we used to pay our bills.

That’s the only account I could take the money out—you know, we could discuss it before anyone takes the money out. [Appellant’s Counsel]: Q Did you spend any of this money, ma’am, for the family? A Yes. [Appellant’s Counsel]: Q What did you spend any of these monies for? A I spend on clothing, I spend on food, I spend on health insurance that I bought for my baby, you know, from Kaiser. I spend on the rent.

I spent paying all the credit card debt I had. I spend on the car note. I spend on food[, on] grocery. I spent some money—you know, I have two kids back home.

I sent the money to them as I used to do when we used to live together. I spend on the babysitter, too. At the conclusion of all of the evidence, the Circuit Court announced its decision to (1) grant Appellee an absolute divorce from Appellant, and (2) deny Appellant’s counter-claim for dissipation. The following transpired during the Circuit Court’s on-the-record analysis of Appellant’s dissipation claim: THE COURT: So then the question becomes what, if anything, is to be done about an allegation and countercomplaint about dissipation of marital assets?

I can suggest to you the burden is on Mr. Omayaka in that regard. And ⁶⁵⁰ while there has been evidence presented that Ms. Omayaka spent substantial sums of money during the marriage, the only testimony as to where the money went is for household goods, mortgages, clothes, to pay off credit card debt, and to send money to her minor children, somewhere. The issue is, was the money spent for his or her own benefit or purpose unrelated to the marriage at the time when the marriage is undergoing an irreconcilable breakdown. I don’t find that that burden has been met.

Accordingly, the first step is not met. If it had been met then the testimony, once again, is that the money is spent for purposes (unintelligible) purposes would be appropriate under the circumstances. The Court cannot find that there has been a dissipation of assets. There’s also a question of contributions—or source of the funds for those assets.

There was one sentence of possible testimony in that regard, and that was that she was—two sentences, we’ll say—putting money aside for the future, and she was working at the time. And her testimony with regard to her income is such that it would have been—a reasonable inference would suggest that the money could not have come solely from her work, because [of] the amounts involved. So I’m going to deny the counterplaintiffs action with regard to dissipation of assets. That leaves no other issue with regard to marital property before the Court.

Accordingly, no monetary award will be made. [APPELLANT’S COUNSEL]: ... Your Honor, ... for dissipation—you’re putting all the burden on us. THE COURT: I think I just explained that I did not believe that you had made a case. That’s not a “prima facie” case.

We are at the conclusion of all of the evidence. So it’s not a question of a “prima facie” case. The question is, did he meet the burden? And I suggested that he didn’t meet the threshold question.

And then I went on to say ⁶⁵¹ that even accepting that he did meet it, then the next question is, does she explain adequately where the funds went? And I found that she had. [APPELLANT’S COUNSEL]: But she didn’t put on any evidence, Your Honor, about how the money was spent. THE COURT: She did. She said that she spent it on her credit cards, her $5,000 loan, her clothing, food, mortgage, sent to the other two children; she went through a whole litany of that. [APPELLANT’S COUNSEL]: ...

There’s no evidence in the record that she spent the money for what she said. THE COURT: There is evidence. I heard her say so under oath from the stand. [APPELLANT’S COUNSEL]: There’s no corroborating evidence, Your Honor. THE COURT: I don’t recall in the [C]ode where that testimony needs to be corroborated.

If you can give me a case that requires that, I’ll be happy to look at it. [APPELLANT’S COUNSEL]: All right, Your Honor. Appellant now requests (in the words of his brief), “that this Court vacate the judgment of no dissipation and remand the case with instructions to the Circuit Court to enter a Judgment in favor of the Appellant.” Discussion Only four cases are included in the TABLE OF CITATIONS found in Appellant’s brief: Sharp v. Sharp, 58 Md.App. 386, [ 473 A.2d 499 ] (1984); Choate v. Choate, 97 Md.App. 347 , 629 A.2d 1304 (1993); Jeffcoat v. Jeffcoat, 102 Md.App. 301 , 649 A.2d 1137 (1994); and Beck v. Beck, 112 Md.App. 197 , [ 684 A.2d 878 ] (1996). Only Sharp, Choate, and Jeffcoat are cited in Appellee’s brief. The parties agree that “[dissipation [occurs] where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Sharp, supra, 58 Md.App. at 401, 473 A.2d at 506 .

While we must determine whether this kind ⁶⁵² of dissipation has been proven in the ease at bar, we note that dissipation may occur on occasions in which (1) the marriage is not undergoing an irreconcilable breakdown, 3 and/or (2) the dissipating spouse’s principal purpose was a purpose other than the purpose “of reducing the amount of funds that would be available for equitable distribution at the time of the divorce.” Welsh v. Welsh, 135 Md.App. 29, 51 , 761 A.2d 949, 961 (2000). Dissipation occurs when “marital assets were taken by one spouse without agreement by the other spouse.” John F. Fader, II & Richard J. Gilbert, Maryland Family Law, § 15-10 (4th ed.2006). In Solomon v. Solomon, 383 Md. 176 , 857 A.2d 1109 (2004), this Court stated: Maryland common law first addressed a husband’s dissipation of marital property quite a long time ago. Feigley v. Feigley, 7 Md. 537, 561 (1855) (observing that a husband’s right to freely alienate property at the expense of supporting his wife is valid, “provided he does so bona fide, and with no design of defrauding her of her just claims upon him and his estate.”).

Dissipation of marital assets, as with many issues in the field of family law, has not been considered much of late by this Court. The majority of modern reported cases developing the doctrine of intentional dissipation of marital assets has been reported by the Court of Special Appeals. A trial court’s judgment regarding dissipation is a factual one and, therefore, is reviewed under a clearly erroneous standard. “If there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.” Fuge v. Fuge, 146 Md.App. 142,180 , ⁶⁵³ 806 A.2d 716, 738 (2002); see also McCleary v. McCleary, 150 Md.App. 448, 462 , 822 A.2d 460, 469 (2003). In determining a marital award, the trial court first must determine the amount and value of the marital property.

Generally, “property disposed of before trial cannot be marital property.” Turner [v. Turner ], 147 Md.App. [350] at 409, 809 A.2d [18] at 52 [ (2002) ]. An exception to the general rule has been recognized when a court “finds that property was intentionally dissipated in order to avoid inclusion of the property towards consideration of a monetary award.... ” Sharp v. Sharp, 58 Md.App. 386, 399 , 473 A.2d 499, 505 (1984). Even so, “a conveyance made by a husband before and in anticipation of his wife’s suit for alimony, or pending such suit, or after decree has been entered therein in the wife’s favor, to prevent her from obtaining alimony, is fraudulent and may be set aside, unless the grantee took in good faith, without notice and for value.” Oles Envelope Corp. v. Oles, 193 Md. 79, 89 , 65 A.2d 899, 903 (1949) (holding spouse’s sale of marital property stock for $42,000 over book value adequate consideration to defeat fraudulent dissipation claim). To include property that was disposed of during the marriage, the trial court must be