Thomasian v. Thomasian

¹⁹⁰ ROBERT M. BELL, Judge. Neither Tom V. Thomasian, appellant/cross-appellee, nor Silva K. Thomasian, appellee/cross-appellant, is happy with the judgment of the Circuit Court for Montgomery County and, so, they have both appealed. In his appeal, Mr. Thomasian asks: 1. Did the trial court abuse its discretion in awarding combined alimony and child support totaling in excess of $46,000.00 per year? 2.

Did the trial court err in. awarding rehabilitative alimony for five years without first making a determination of Mrs. Thomasian’s present earning capacity? 3. Did the trial court exceed its authority and impermissibly transfer personal property incident to the divorce by requiring that Dr. Thomasian’s name be removed from two bank accounts titled in the names of the parties and each of their children? Mrs. Thomasian’s cross-appeal presents four additional questions, namely: 1. Was it error to award only rehabilitative alimony where there was no evidence that the wife could make substantial progress toward being self-supporting and the husband earns over $200,000.00 per year? 2.

Did the court err when it failed to consider the effect of the reduced counsel fee, child support and monetary award when awarding the plaintiff rehabilitative alimony? 3. Is the husband’s $12,442.00 of accrued holiday and vacation leave marital property, as it was earned during the marriage and the husband could contractually elect to use or be paid for it upon his leaving employment? 4. Is real estate acquired during marriage in the husband’s sole name marital property? Alimony and Child Support Award — Excessive?

This matter was before the circuit court on exceptions, filed by both parties, to the Report and Recommendation of the ¹⁹¹ Domestic Relations Master. The evidence before the Master established that appellant was employed as a Senior Health Officer, the equivalent of a hospital resident, at Providence Hospital. In that capacity he earned $34.00 per hour and, when on call, an additional $5.00 per hour. The record also reflected that appellant worked extremely hard in that position, earning since 1983, in excess of $140,000.00 per year. 1 It was projected that, at the rate at which appellant was working at the time of the hearing, he would earn more than $220,000.00 in 1988.

Appellant argued before the Master and the lower court, as he does here, that the alimony and child support award should not have been based upon earnings generated by the number of hours he actually worked. 2 His position was that he could not continue to work at that pace; indeed, he contends that he was required to work at that pace simply to meet his pendente lite obligations. The Master determined that appellant’s income was in the neighborhood of $220,000.00 a year and, therefore, awarded child support and alimony to appellee in an amount in excess of $53,000.00 a year. The court, on exceptions, appears to have agreed, in part, with appellant. It found that it was “unconscionable” to base appellant’s alimony and child support obligations upon “an annual salary which would indefinitely necessitate a 110 hour work week.” Nevertheless, it reduced the recommended amount by only about $7,000.00, an amount which appellant maintains “failed to achieve a reduction to a level that would permit Dr. Thomasian to resume working hours that are somewhat closer to human.” On this appeal, therefore, appellant argues that alimony and child support awards totaling more than $46,000.00 per ¹⁹² year are excessive.

Once again, he relies upon the fact that the awards are based upon an annual salary generated by the long hours and being on call. He does not dispute that he actually works those hours or that he actually makes the amount of money attributed to him. Appellant invites us to disregard the facts as they actually exist and to base the award of alimony and child support upon facts which may or may not ever exist, i.e., to project what might be a “more normal work week” for him. We decline the invitation.

Indeed, we think appellant cries hurt too soon. He does not dispute that he makes the amount of money attributed to him, albeit he does so only by working the number of hours attributed to him as well. Nor does he dispute that, given his actual earnings, the amount set by the court is not unreasonable. Under these circumstances, we fail to see how an award of alimony and child support in the amount set by the court is an abuse of discretion.

Rather than anticipate an inability on the part of appellant to continue to maintain the pace that he has set for himself, and the consequent generation of the earnings he has enjoyed for the last several years, the court is required to consider the facts as they are, not as they may be projected to be at some time in the future. Appellant has the opportunity, and the option, should the circumstances and his situation change, to seek a reduction in alimony and child support based upon those changes. At that time, the court would be in a better position to make a determination based upon the facts as they actually exist at that time, as to appellant’s actual ability to pay. We think that the court would have abused its discretion had it based the child support and alimony award upon its perception of what would be a more “normal” work week for appellant, in total disregard of the facts as they actually exist.

Alimony — Rehabilitative or Indefinite Mrs. Thomasian testified that she suffered an hereditary ¹⁹³ disease, retinitis pigmentosa, 3 and, therefore, is unable to work in her field of expertise. 4 She also testified that she was not trained in any other field. Mrs. Thomasian also testified to suffering from depression and to having to severe anemia and varicose veins, the latter of which required surgery in 1985. 5 The Master determined that Mrs. Thomasian’s eye condition rendered her unemployable in her field and, further, that there was no evidence of her employability in any other field. She, therefore, recommended that Mrs. Thomasian receive alimony for an indefinite period in the amount of $2350.00 per month. The court granted appellant’s exceptions in part.

Characterizing the testimony concerning Mrs. Thomasian’s vision problems as “inconclusive”, the court ordered alimony payable “... for the next five only as rehabilitative alimony. The question of whether or not the plaintiff can make progress toward being self-supporting can be answered during that time period. Upon competent medical testimony from a specialist in the field which establishes the plaintiff’s inability to secure employment, the plaintiff may request a further hearing on the issue____” (Emphasis in original) Appellant’s appeal of that order challenges its propriety. He argues: ¹⁹⁴ The wife, in effect, is being rewarded for not meeting her burden of proof; for not being able to substantiate her alleged medical disability with competent medical testimony at the time of the original hearing.

She is being awarded rehabilitative alimony and afforded additional time to produce evidence regarding her earning capacity that should have been produced at the original hearing. Dr. Thomasian is put in the position of having to foot the bill for Mrs. Thomasian’s failure of proof. Mrs. Thomasian has appealed as well. For her part, she argues that, where, as here, appellant earns more than $200,000.00 a year and there is no evidence that Mrs. Thomasian could make substantial progress towards being self-supporting, it is reversible error for the court to award only rehabilitative alimony.

She agrees with appellant, apparently, that “[t]he statute clearly does not contemplate that a spouse be awarded rehabilitative alimony for a period simply to test their ability to become self-supporting.” Maryland Family Law Code Ann. § ll-106(c) provides: (c) Award for indefinite period. — The court may award alimony for an indefinite period, if the court finds that: (1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate. Although, under our statutory scheme, the principal function of alimony is rehabilitation, requiring that the economically dependent spouse be required to become self-supporting, see Holston v. Holston, 58 Md.App. 308, 321 , 473 A.2d 459 (1984), cert. denied, 300 Md. 484 , 479 A.2d 372 (1984); Rosenberg v. Rosenberg, 64 Md.App. 487, 531 , 497 A.2d 485 (1985); Campolattaro v. Campolattaro, 66 Md.App. 68, 75 , ¹⁹⁵ 502 A.2d 1068 (1986), this section provides a mechanism whereby the court may, under appropriate circumstances, award indefinite alimony. The burden of proof as to the existence of the prerequisites to entitlement is upon the economically dependent spouse who seeks alimony for an indefinite period. Both the Master and the trial court focused on subsection (c)(1).

The Master determined that Mrs. Thomasian’s vision problem rendered her unemployable in her chosen field; the trial judge, on the other hand, determined, and, consequently, held, that the evidence concerning Mrs. Thomasian’s vision problem and her employability was inconclusive. Having reached that conclusion, the trial judge nevertheless decided to award rehabilitative alimony, thereby leaving the questions of appellant’s employability 6 and ability to become self-supporting for resolution during the term of the rehabilitative alimony. There is merit in appellant’s position. Although § ll-107(a), provides a mechanism whereby the period of rehabilitative alimony may be extended, 7 it contemplates an extension based upon some changed circumstances occurring during the period when rehabilitative alimony is being paid.

It does not contemplate the situation presented here wherein the court awards the rehabilitative alimony intending that the decision whether it will continue to be rehabilitative or will be changed to indefinite alimony would be finally determined during that period. The trial judge did not cite any authority permitting him to structure the award as he did, and we know of none. Indeed, as we have ¹⁹⁶ already pointed out, neither does Mrs. Thomasian; she agrees with appellant insofar as appellant maintains that rehabilitative alimony may not be awarded in lieu of proof of entitlement to indefinite alimony. The matter must be remanded for further proceedings, specifically, for a determination of whether, at this time, Mrs. Thomasian is entitled to indefinite alimony.

The issue raised by Mrs. Thomasian on her cross-appeal does not change the result. She appears to contend that there is evidence in the record supporting the conclusion that, given the respective earnings of the parties, it is necessarily true that Mrs. Thomasian qualifies for indefinite alimony pursuant to subsection (c)(2). Suffice it to say that that issue was neither presented to nor decided by the court and, therefore, we will not address it. See Maryland Rule 8-131(a).

If necessary, this matter may be considered by the court on remand. Accrued Holiday and Vacation Leave: Marital Property? During his employment, appellant accrued more than 180 hours of vacation time and more than 180 hours of holiday time. 8 At his rate of pay, $34.00 plus an hour, the accrued holiday and vacation leave had a total value of more than $12,000.00. 9 Mrs. Thomasian unsuccessfully sought to have ¹⁹⁷ this accrued leave considered by the court when it determined whether to make a monetary award. She renews that effort on appeal.

Marital property is defined as “the property, however titled, acquired by 1 or both parties during the marriage.” 10 Maryland Family Law Code Ann. § 8-201(e)(l). This definition is, as Mrs. Thomasian recognizes, rather expansive. It, “when considered in a broad sense, is a term of wide and rather comprehensive signification____ It has been stated that the term embraces everything which has exchangeable value or goes to make up a man’s wealth— every interest or estate which the law regards of sufficient value for judicial recognition.” Deering v. Deering, 292 Md. 115, 125 , 437 A.2d 883 (1981), quoting Diffendall v. Diffendall, 239 Md. 32, 36 , 209 A.2d 914 (1965). Thus, in Maryland, a non-vested, non-contributory pension interest has been held to be a variety of marital property rather than a mere expectancy of gain.

Deering, 292 Md. at 127 , 437 A.2d 883 . Similarly, a stock option plan has been held to be marital property. Green v. Green, 64 Md.App. 122, 136 , 494 A.2d 721 (1985). So, too, has that portion of a workers’ compensation award compensating the husband for loss of any earning capacity during the marriage.

Queen v. Queen, 308 Md. 574, 586-87 , 521 A.2d 320 (1987). The rationale for reaching the conclusions reviewed above is instructive. In Deering, the Court of Appeals adopted the reasoning of the Supreme Court of California in In Re Marriage of Brown, 15 Cal.3d 838 , 126 Cal.Rptr. 633 , 544 P.2d 561 (1976): ¹⁹⁸ In holding that in a non-vested, non-contributory pension interest is a variety of marital property rather than a mere expectancy of gain, the Brown Court reasoned that “[s]ince pension benefits represent a form of deferred compensation for services rendered, the employee’s right to such benefits is a contractual right derived from the terms of the employment contract. Since a contractual right is not an expectancy but a chose in action, a form of property, ... an employee acquires a [judicially recognized] property right to pension benefits which he enters