Roginsky v. Blake-Roginsky

EYLER, Judge. Jacob Roginsky, appellant, and Veronica Blake-Roginsky, appellee, were married on December 30, 1993, and separated on January 1, 1996. On July 26, 1994, one child, Joshua, was born. Appellee filed suit in the Circuit Court for Charles County seeking a divorce, alimony, child custody, child support, and a marital property award.

After trial, by order dated March 22, 1999, the court granted to appellee an absolute divorce, child custody, child support, indefinite alimony, a marital property award, and attorney’s fees. The court also entered an earnings withholding order with respect to the child support and alimony payments. Appellant appealed to this Court and presents five issues, as follows: 1. Was the Appellant denied due process as a result of counsel for Appellee having chambers, conferences with the trier of fact in the absence of Appellant? 2.

Did the failure of counsel for Appellee to abide by the Court’s oral ruling and submission of an order contrary to the Court’s findings amount to an abuse of process? 3. Was the decision to award custody to the mother gender-biased and contrary to the best interest of the child? ¹³⁷ 4. Did the Court evaluate the criteria outlined in the statute in awarding indefinite alimony to the Appellee or was the decision contrary to law? 5. Did the Appellee contribute to the accumulation of marital assets so as to justify a monetary award?

We shall vacate the child support order, the earnings withholding order, and the monetary award and remand for further proceedings with respect to those issues. We shall reverse with respect to the indefinite alimony award but remand for further proceedings with respect to rehabilitative alimony. We shall affirm the judgment in all other respects. As we discuss the issues, we shall discuss the relevant facts.

Discussion 1. Appellant contends that he was denied due process because counsel for appellee engaged in ex parte communications with the trial judge after the trial and before the entry of final judgment. The case was tried on November 24, 1998, and January 29, 1999. At the conclusion of the trial on January 29, the trial judge indicated that he would apply the child support guidelines and would award child support in favor of appellee in the amount of $664 per month.

The court found that appellant’s gross income was $5,791 per month, and appellee’s gross income was $828 per month. The order entered on March 22, 1999, however, awarded child support in the amount of $976 per month. Appellant contends that the increase was as a result of ex parte communications between appellee’s counsel and the court and that this constituted a denial of due process. Additionally, at the conclusion of the trial, the trial judge stated that he would not enter an earnings withholding order without appellant’s consent.

The fact that such an order was later entered, according to appellant, implies that it was as a result of ex parte communications with appellee’s counsel. Finally, according to appellant, regardless of whether such communications had anything to do with the terms of the ¹³⁸ judgment actually entered, the entire judgment should be vacated and the matter retried because such communications taint the judicial process. Appellee asserts that, following the trial and while the proposed order was being prepared, a problem arose because, in appellee’s view, the court had inadvertently failed to consider appellee’s monthly daycare expense and appellant’s monthly health care expense. According to appellee, her counsel called appellant, who was representing himself and who had represented himself at trial, and described the need to see the judge to clarify the situation.

Appellee further asserts that appellant was advised with respect to the date and time for a meeting with the judge but did not attend. A copy of the proposed judgment was sent to appellant at least a week before the judgment was actually entered, and appellant did not respond before or after it was entered. Finally, appellee points out that appellant, even now, does not take issue with the substance of the change or clarification; instead, he attacks the ex parte communication. Appellant asserts that he did not know of or acquiesce in the ex parte contact with the trial judge.

He states that, when contacted, he asked that the issue be handled by conference call with both parties present or, if that was not acceptable, that the meeting with the judge be scheduled at a time acceptable to appellant. While we understand the need to deal with matters expeditiously and recognize that appellant may have contributed to the error, we agree that appellant should have a further opportunity to be heard. Under circumstances such as those existing in this case, when a party believes the trial court has committed or is about to commit an error, all parties must be given an opportunity to be heard. We recognize that such matters may sometimes be handled informally, assuming proper notice.

The better practice — especially without the consent of all parties — is to deal with such matters formally, by pleading or on the record, with all parties present or having been given a reasonable opportunity to be present. In ¹³⁹ this case, appellant should have a reasonable opportunity to argue that the amount of child support awarded was in error and that the earnings withholding order was entered in error. We hasten to add that we have insufficient information to determine whether there was error in the amount of child support or the entry of an earnings withholding order. The court may arrive at the same result after remand; it cannot do so, however, without affording an opportunity to be heard.

We are limiting this holding to the terms of the child support order and the propriety of an earnings withholding order and, for the reasons stated, we are vacating those two orders. Appellant also argues that, at the December 24, 1998, hearing, the trial court admitted into evidence a report prepared by an individual who had performed a family evaluation with respect to the custody issue. Appellant contends that he had subpoenaed the individual to testify, but the individual did not appear, and the trial court failed to enforce the subpoena. It is not clear what specific argument the appellant is making with respect to the report, but we fail to perceive any deprivation of due process.

Our review of the record indicates that appellant never requested the court to take any action with respect to the subpoena. With respect to admission of the report, the only objection was appellant’s assertion that the notes which he made of his sessions with the individual contradicted some of the contents of the report. That fact might affect the weight of the report but in and of itself does not make it inadmissible and does not constitute grounds for reversal. The report was admitted as a “court exhibit,” and both parties were permitted to testify, or to present other evidence, consistent or inconsistent with its contents.

Perhaps more could have been done to meet appellant’s present objection, but a trial judge has wide discretion with respect to the admission of evidence. The information was before the court, the parties were permitted to comment on it, and there was no specific request for relief not granted. We perceive no abuse of discretion in this instance. ¹⁴⁰ 2. Appellant contends that ex parte contacts by appellee’s counsel with the trial court must have been initiated with the intent to obtain a result contrary to law, and that this constituted an abuse of process. “[Ajbuse of process is concerned with the improper use of criminal or civil process in a manner not contemplated by law after it has been issued____” Walker v. American Security & Trust Co., 237 Md. 80, 87 , 205 A.2d 302 (1964) (citations omitted).

Based on our disposition of the first issue, this issue is moot. Moreover, there is no evidence of abuse of process. 3. Appellant states that there “appears” to be no basis for the award of custody to appellee other than her gender, which is an impermissible basis. Appellant states that the evidence showed that appellee was unfamiliar with the health problems of their child and presented a less desirable child-rearing environment than that of appellant.

Additionally, appellant notes that the court expressly recognized that appellant loved his child and was a valuable resource for his child. Consequently, appellant asserts that the court must have “sub silentio accepted the tender years presumption for a four-year old child.” We do not read the record in that manner. There was evidence indicating that, while neither parent was perfect, either parent was a fit parent to care for the child. Both parties claimed verbal and physical abuse by the other, and each claimed that the other had not cared for the child properly on certain occasions.

On the other hand, the evidence indicated that the child was normal and functioning well, and that appellee had been the primary custodian and caretaker for a significant period of time prior to trial. The court explained that because the parties could not cooperate, joint custody was not realistic. It then awarded custody to appellee because the child was functioning well, citing consistency of environment as a primary reason. Contrary to the ¹⁴¹ implication argued by appellant, the trial judge did not find that appellant was an unfit parent, but merely that, in weighing the evidence and balancing the considerations, the child’s interests were better served with custody awarded to appellee and liberal visitation rights awarded to appellant.

We find no indication of gender bias in the record; such bias is simply an assumption made by appellant. The trial court’s findings were not clearly erroneous and its conclusion was not an abuse of discretion. 4. Appellant contends that the trial court erred in awarding indefinite alimony. Before discussing the issue in this case, we shall review the historical background to the present state of the law.

Prior to 1980, the principal function of alimony was to maintain the recipient spouse’s standard of living that existed during the marriage. Thus, courts frequently awarded alimony for the joint lives of the parties or until the recipient spouse remarried, subject to modification upon a material change in circumstances. See Blaine v. Blaine, 336 Md. 49, 69 , 646 A.2d 413 (1994). In 1980, the alimony statute was changed by the Legislature to make the principal purpose of alimony rehabilitative, i.e., to support the recipient spouse until he or she became self-supporting.

See Holston v. Holston, 58 MdApp. 308, 321, 473 A.2d 459 (1984). In cases where it is either impractical for the dependent spouse to become self-supporting, or in cases where the dependent spouse will become self-supporting but still a gross inequity will exist, a court may award alimony for an indefinite period. See Blaine, 336 Md. at 70 , 646 A.2d 413 . In the words of the statute, a party may receive indefinite alimony if the court finds “due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting,” Md.Code, Fam.

Law § ll-106(c)(l) (1999), or “even after the party seeking alimony will have made as much ¹⁴² progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.” Id. at (c)(2). The law, however, favors rehabilitative alimony over indefinite alimony. Tracey v. Tracey, 328 Md. 380, 391 , 614 A.2d 590 (1992). An alimony award should reflect the desirability of each spouse becoming self-supporting and the undesirability of alimony as a lifetime pension.

Thus, indefinite alimony should be awarded only in exceptional circumstances. Turrisi v. Sanzaro, 308 Md. 515, 527 , 520 A.2d 1080 (1987). Before ascertaining whether indefinite alimony should be awarded under subsection (c), a court must consider the factors necessary for a fair and equitable award, pursuant to subsection (b), including: (1) the ability of the party seeking alimony to be wholly or partly self-supporting; (2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment; (3) the standard of living that the parties established during their marriage; (4) the duration of the marriage; (5) the contributions, monetary and nonmonetary, of each party to the well-being of the family; (6) the circumstances that contributed to the estrangement of the parties; (7) the age of each party; (8) the physical and mental condition of each party; (9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony; (10) any agreement between the parties; (11) the financial needs and financial resources of each party, including: (i) all income and assets, including property that does not produce income; ¹⁴³ (11) any award made under §§ 8-205 and 8-208 of this article; (iii) the nature and amount of the financial obligations of each party; and (iv) the right of each party to receive retirement benefits; and (12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur. Md.Code, Fam.

Law § ll-106(b) (1999). As the prefatory language in subsection (b)