Whittington v. Whittington

EYLER, J. In the divorce action between Scott Whittington (“Scott”), the appellant, and Christina Whittington (“Christina”), the appellee, the Circuit Court for Anne Arundel County granted the parties a divorce and granted Christina indefinite alimony, counsel fees, a monetary award, and an interest in the marital portion of Scott’s two pensions. The court also ordered Scott to maintain a survivor benefit for Christina on one of his ³²³ pensions, granted her an interest in the survivor benefit, and ordered the division of certain jointly held marital property. Scott noted an appeal, presenting six questions, 1 with numerous sub-parts, for review. We have rephrased them as follows: I. Did the trial court err or abuse its discretion in granting Christina indefinite alimony of $1,500 a month?

II

Did the trial court err or abuse its discretion in valuing certain marital property and in equitably distributing the marital property?

III

Did the trial court err in awarding Christina a portion of the survivor benefit of Scott’s Toyota pension?

IV

Did the circuit court make inconsistent findings of material fact warranting a reversal? V. Did the circuit court err by failing to reconsider the alimony and counsel fee awards after amending the ³²⁴ judgment to grant Christina an award of a portion of the Toyota pension survivor benefit?

VI

Did the circuit court err in awarding counsel fees without making any factual findings as to the reasonableness of the fees? For the following reasons, we shall affirm the circuit court’s judgment of divorce but otherwise vacate the judgment and remand the case for further proceedings not inconsistent with this opinion. FACTS AND PROCEEDINGS The parties were married on July 17, 1982, when Scott was 21 years old and Christina was 23. By then, they had been living together for three years; Scott had graduated from high school and had earned his Associates Degree in information systems from Anne Arundel Community College; and Christina, who also was a high school graduate, had become certified in typing and stenography by Fleet Business School.

In 1985, the parties purchased a home in the Annapolis area. They lived there until they separated on December 26, 2003. By mutual agreement, the parties decided not to have any children, and none were born of the marriage. For the first five years of their marriage, Scott worked for the State of Maryland, in the information systems field.

In 1987, he was employed by Toyota, also in the area of information systems. He has worked for Toyota ever since. For most of the marriage, Christina worked full-time as a typesetter and production artist in the graphic arts industry. In 1999, she decided to cut her hours to about 30-35 per week, due to job stress, “excessive overtime,” and wrist and elbow problems.

She began to work “flex time,” meaning that, as long as she put in the requisite number of hours per week, she could work non-traditional hours, work from home, and work on weekends. In late 2003, after the parties separated, Christina’s employer, Pro Graphics, asked her to work tradi ³²⁵ tional hours. 2 She complained that she could not do so, because a traditional schedule interfered with caring for her dog. She was fired in June 2004 for not changing her work schedule. The parties accumulated significant retirement and non-retirement assets over the course of their marriage. 3 Their lifestyle was comfortable, but not extravagant.

By all accounts, the parties’ marriage was satisfactory for the first seven years. In 1989, Scott’s mother died, and he went into a depression. Christina had been in counseling for depression herself, and did not have the emotional reserve to deal with Seott’s state of mind. The parties agree that this marked the beginning of serious problems that plagued their marriage until their eventual separation, 14 years later.

According to Scott, the parties ceased having sexual relations in 1990. By the next year, there was a major “rift” in their relationship. According to Christina, she and Scott last engaged in marital relations in 1996. Christina acknowledged that, in her mind, the marriage was over in 1995.

By 2000, the couple did not sleep in the same bed. Even before then, they functioned on completely different schedules. Scott got up early and went to bed early, and Christina slept late and stayed up late. Even though their married life had deteriorated, the parties continued to live together as friends.

They went on two vacations a year with members of Christina’s family, traveled some, shared their finances, and made investments. They participated in different hobbies, however, and interacted very little at home. In April 2002, Christina went on a business trip to Florida, to make a presentation for a company that later became Taylor & Francis. At that meeting, she was introduced to ³²⁶ James Miller (“James”), a graphic designer for the company.

They struck up a friendship that immediately became romantic and sexual. From then on, Christina traveled to Florida regularly to spend time with James. About a year and a half later, in late 2003, Scott became romantically involved with Lisa Riseau (“Lisa”), who he had met through his hobby of dog agility training. Scott and Lisa became sexually involved in late November 2003.

Sometime in early December 2003, Scott and Christina had a frank conversation in which they revealed their romantic relationships with other people. They each expressed the desire to live with the person they were romantically involved with, and to end their marriage. Neither one was upset about the other’s extramarital affair, because each recognized that their marriage had long before become one of convenience. They wished each other well in their new relationships.

On December 26, 2003, Scott moved out of the marital home and into Lisa’s house. Christina remained living in the marital home for one year. She continued to travel to Florida frequently to see James. In December 2004, she moved to Florida, and she and James rented an apartment together.

From the time she was fired, in mid-2004, until the fall of 2005, Christina continued to do freelance work for Pro Graphics. Upon relocating to Florida in December of 2004, Christina began freelancing for Taylor & Francis as well. By the time of the divorce, she was working exclusively for Taylor & Francis on a freelance basis. During the parties’ separation, until the marital home was sold in April 2005, Christina and Scott each paid half of the mortgage and utility bills.

Scott paid for maintenance on the home, lawn care, and the monthly home equity loan payments. Scott also continued to maintain Christina’s health insurance and car lease through his employer. After moving to Florida, Christina continued to pay her share of the mortgage and utilities. She split costs associated with her new residence with James. ³²⁷ The sale of the marital home netted a profit of $203,385, which was deposited in an escrow account.

On January 28, 2005, in the Circuit Court for Anne Arundel County, Christina filed a complaint for absolute divorce on the ground of a voluntary separation of more than one year. She requested alimony, both pendente lite and indefinite, continued health insurance coverage through Scott’s employer, a monetary award, and attorney’s fees and litigation expenses, including expenses for pendente lite proceedings. Scott filed an answer admitting the ground for divorce, but denying that Christina was unable to support herself and needed alimony. Scott requested that the court deny all relief requested by Christina.

The court denied Christina’s pendente lite alimony and counsel fees request. In June of 2005, Scott and Lisa purchased a house. Scott took a $40,000 loan from his Toyota 401(k) account to pay his share of the down payment. (By the time of trial, he had repaid all but $25,218 of that sum.) The case went to trial on February 8, 2006.

The parties introduced their Joint Statement of Marital Property pursuant to Rule 9-207, as a joint exhibit. Each party introduced numerous financial records. 4 Scott and Christina testified and Christina’s mother, Isabel Matiz, testified to corroborate the ground for divorce. The parties stipulated that, if called to testify, the vocational expert witness retained by Scott would opine that Christina ³²⁸ had the present ability to earn $35,000 annually, in full-time employment. At the conclusion of testimony, counsel for the parties delivered closing arguments, and the court held the matter sub curia.

On February 22, 2006, the court issued a memorandum opinion and order granting Christina an absolute divorce and a monetary award of $30,531.60, and awarding her indefinite alimony of $1,500 per month and $7,500 in attorney’s fees. Within ten days, Christina filed a motion to alter or amend asking the court, among other things, to award her an interest in the survivor benefit of Scott’s Toyota pension. Scott opposed the motion. After a hearing, the court granted Christina’s motion and entered an amended judgment awarding her 40% of the survivor benefit of the Toyota pension, payable on an “if, as, and when” basis, pursuant to the Bangs formula. 5 The amended judgment was entered on June 1, 2006.

On June 14, 2004, Scott noted a timely appeal. We shall recount additional facts as necessary to our discussion of the issues. DISCUSSION I. Alimony Scott contends the circuit court erred in awarding Christina indefinite alimony and that, assuming arguendo that indefinite alimony was appropriate to award, it erred in awarding the sum of $1,500 a month. ³²⁹ A. Evidence about the Parties’ Incomes and Finances. The evidence at trial showed that, in his last year as a State employee, Scott earned an annual salary of $35,000.

His starting salary with Toyota, in 1987, was $42,000. Scott received many raises over his years with Toyota, and at the time of trial was earning an annual salary of $149,000. Before and during the marriage, until 1989, Christina was employed by Whitmore Printing. When she left employment there, she was earning an annual salary of about $25,000.

She went to work for Pro Graphics as a salaried employee. She continued to work at Pro Graphics full-time until 1999. During this period, her annual income increased from a starting salary of around $25,000 to a high of $38,000 in 1997. Her salary decreased slightly, to $37,000, for the years 1998 and 1999.

After reducing her hours in 1999, Christina earned approximately $34,000 annually from 2000 through 2003. In 2005, when she was freelancing exclusively for Taylor & Francis, Christina was earning an average of $2,400 per month ($28,800 a year). 6 She still was limiting her work to about 30 to 35 hours per week, and was working from home. She testified that that was a lifestyle choice on her part. As discussed, supra, the parties stipulated that, if called to testify, Martin Kranitz, a vocational expert hired by Scott, would opine that Christina’s potential income, if she were working full-time, was $35,000 a year.

Christina’s lawyer explained: [T]hat that figure, 35,000, is consistent with full-time work in [Christina’s] profession, with her skill level, and the geographic region that she is in. She is not presently making 35, and we are not stipulating to her voluntary impoverishment or under-unemployment [sic]. But to avoid [the expense of the expert witness], we ³³⁰ agree that that number is at least consistent with the prior work history as well, Your Honor. Christina testified that James owns Sebastian Design Works (“SDW”), a freelance graphic design company.

She is the company’s only employee. The money she is paid for her freelance work is deposited into SDW’s bank account, over which she has no control. She is not authorized to write checks from that account. James makes the payments for Christina’s bills and expenses from the SDW account.

Also, entertainment and other such expenses incurred by Christina are run through that account. James is an employee of Taylor & Francis, and receives health insurance coverage through his job. He deposits his pay into the SDW bank account as well. According to Christina, James earns approximately $6,000 more a year than she does.

Christina testified that she and James have been sharing all of their expenses from the time they began living together, in December 2004. Pendente lite, Christina had submitted a financial statement that reflected the total expenses she and James were sharing. She later submitted an amended financial statement that reflected only her 50% share of these expenses. According to Christina, in the last years of their marriage, she and Scott lacked the “deep emotional connection” that is necessary in a “marriage type relationship.” She acknowledged, on cross-examination, that she is in a sexual relationship with James, that she has a “deep emotional connection” to him, and that they share their finances and bills.

She stated that her relationship with James is so close that she trusts him completely with her finances. Christina made clear that she and James have no plans to get married, and she does not foresee herself ever remarrying. When asked to describe the standard of living the parties established during their marriage, Christina testified: ³³¹ It was very comfortable. We had a really nice life.

We had a nice home. We had nice cars. We took really nice vacations. We were able to travel frequently.

We went to a lot of sporting events. We had season tickets to almost every sport. We went to shows. We had a lot of disposable income.

She contrasted her standard of living during the marriage to her standard of living after the parties’ separation: During our marriage, in the years that we worked to try to achieve the freedom to do the things that we wanted to do, we worked hard to try to build ou[r] careers, and earn the money that would let us have the freedom to travel and to do things without worrying about paying bills. I can’t do that now. I have to worry about, can I make this payment? I have to worry about, can I afford to have this expense?

And I never had, you know, I haven’t had that since probably I started out after leaving my parents’ home. Scott testified that, while married, the parties lived comfortably. Early on, when he began working for Toyota, he started planning for retirement by investing heavily. Christina was not very involved in this planning.

He and Christina were satisfied with their modest home and never sought to purchase a larger home as their income increased. Twice a year they vacationed with members of Christina’s family. They owned two time-shares, one in Ocean City and one in St. Maarten’s, which they would use or trade so they could stay at other time-shares. Before trial, they had agreed that Scott would keep the Ocean City time-share and Christina would keep the St. Maarten’s time-share.

When Scott was asked on cross-examination whether he thought it was fair for Christina to live a “$30,000-a-year lifestyle while [he] enjoy[ed] $150,000 of income,” he replied: “Those were career choices we made.” Counsel had submitted memoranda of law prior to closing arguments. In his closing argument, Christina’s lawyer referred to a chart attached to his memorandum (also attached to Christina’s brief on appeal), listing reported cases of this ³³² Court from 1983 to 2000, in which awards of indefinite alimony had been affirmed, and for each case, giving the income of each spouse upon divorce, the percentage of the lower income to the higher, and the length in years of the marriage. (For some of the cases, the age of the “economically dependent spouse” was listed also.) The income percentages ranged from 10% to 70%, and the years of marriage ranged from 4 years to 36 years. Christina’s lawyer argued, based on the chart, that the two most important factors with respect to whether there will be an “unconscionable disparity” in post-divorce standards of living are the length of the marriage and the income percentages, and, given that alimony was awarded in the list of cases provided, it would be an abuse of discretion or an error of law for the court in this case not to award indefinite alimony.

Specifically, he argued that the marriage here was 23 years (from the mid-1982 until the trial date in February 2006) and that the parties’ incomes were $150,000 and $35,000 (23.3%), making this an indefinite alimony case. Scott’s lawyer argued in closing that alimony should not be decided solely based upon income percentages and years of marriage. He pointed out, also, that the parties’ stipulation, that an expert witness would have testified that if Christina was working full-time she would be earning $35,000 a year, was refuted by Christina herself, who testified that she was earning $30 per hour doing freelance work, and that, if she worked 30 hours per week at that rate, her earnings would be $46,000 per year. In addition, Scott’s counsel emphasized that Christina is now in a “marriage type relationship” with James, and argued that that should preclude an award of alimony: [TJhere is the emotional tie; there is the economic tie; there is the joint — the checking account where he has her money; there is the joint homeowners — auto insurance policy; there is the joint lease of the parties, of [James] and [Christina]----There is an investment of faith that marriages tend to have that is exhibited in this relationship. ³³³ In response, Christina’s lawyer disputed that there was any basis in the law for denying alimony to an ex-spouse because, post-separation, he or she became involved in a “marriage type relationship.” He maintained that, absent a separation agreement providing for termination of alimony based upon cohabitation, alimony would terminate only upon remarriage.

He further stated: It is absurd to think that a party post-separation that pursues a relationship with another person-as [Christina] has done, combining assets and income — forgo[e]s all of their legal rights, including the right to alimony based upon the marriage. B. The Trial Court’s Ruling In his memorandum opinion, the trial judge explained as follows his decision to grant Christina indefinite alimony of $1,500 a month: [Christina] has requested an award of alimony and she believes it should be indefinite alimony. The Court looks to Family Law Article 11-106(b) for guidance: 1) The Court believes that [Christina] has the ability to become self-supporting. It was stipulated that she can earn $35,000.00 per year and this is consistent with Plaintiffs Exhibit 6 (earnings record).

In 1996, 1997, 1998, and 1999, [Christina] earned over $35,000 per year and slightly under $35,000 from 2000 through 2003. 2) The time necessary for [Christina] to gain sufficient education or training to enable that party to find suitable employment does not appear to apply to this case. [Christina’s] education is complete and she is 46 years of age. [...]. 3) The parties had a very comfortable standard of living while together, enjoying vacations, sporting events, etc. Currently [Scott] is still enjoying that standard while [Christina] is not. 4) This was a lengthy marriage. ³³⁴ 5) Both parties contributed to the economic and non-economic well being of the family. 6) There appears to be no fault in the breakdown of the marital relationship. The parties lived together out of convenience for at least the last 12 years of their marriage. 7) [Scott] is 46 and [Christina] is 44. The parties are still young enough to advance themselves beyond their current situation and continue on with their lives. 9) [Scott’s] income is more than adequate to allow him to meet his needs if he is ordered to pay alimony. 11) The financial needs and resources of the parties has [sic] been considered. [Christina’s] annual income is, or should be, $35,000.00 and [Scott’s] annual income is $150,000 and has increased on a regular basis. Both parties share their current living expenses with their companions and both will receive a significant amount of money when the escrow funds are released.

Neither party is significantly in debt. Once the Court applies the above factors and determines alimony is appropriate it needs to determine whether an award of alimony should be indefinite. The Court must find one of the following in order to make an indefinite award: 1) [Court recites first factor and finds it does not pertain to this case]. 2) Will the respective standards of living of the parties be unconscionably disparate? Clearly, since the separation, [Christina’s] standard of living has been much lower than during the marriage. [Scott’s] standard of living has remained the same or higher.

The Court finds that not only is alimony appropriate in this case, it finds that indefinite alimony is required. ³³⁵ The Court will order [Scott] to pay [Christina] the sum of $1,500.00 per month as indefinite alimony. (Emphasis supplied.) C. Parties’ Contentions on Appeal Scott complains that the trial court erred and abused its discretion in awarding indefinite alimony, and in awarding indefinite alimony in the amount it did. Specifically, he argues that the trial judge did not make a finding, as required by Maryland law, that the standards of living of the parties would be unconscionably disparate at a time, projected in the future, when Christina will have reached her earning potential; rather, the court simply pronounced that because, during the separation, Scott’s standard of living had not changed but Christina’s standard of living was “much lower” than it had been, indefinite alimony was “required.” He also asserts that a circuit court is not empowered to award, or at least should not award, indefinite alimony when the party seeking alimony is living in a “marriage type relationship” with another, as Christina is. Finally, he argues that the amount of alimony awarded was not reasonably based upon Christina’s needs and expenses.

Christina counters that the trial court considered all of the factors necessary to evaluate her alimony claim, that it did not make any erroneous findings of fact, that the court properly found an unconscionable disparity in the parties’ standards of living, and that the fact that she is living in a “marriage type relationship” with James is irrelevant, and did not preclude an award of alimony. D. The Law of Alimony The essential purpose of alimony was changed with the adoption of the Maryland Alimony Act in 1980 (“Act”). Where the principal function of alimony once had been maintenance of the recipient, dependent spouse’s standard of living, upon passage of the Act, that function became rehabilitation of the economically dependent spouse. ³³⁶ Karmand v. Karmand, 145 Md.App. 317, 327 , 802 A.2d 1106 (2002). For that reason, “the ‘statutory scheme [governing] alimony generally favors fixed-term or so-called rehabilitative alimony,’ rather than indefinite alimony.” Simonds v. Simonds, 165 Md.App. 591, 605 , 886 A.2d 158 (2005) (quoting Tracey v. Tracey, 328 Md. 380, 391 , 614 A.2d 590 (1992)).

The preference for fixed-term alimony stems from “the conviction that ‘the purpose of alimony is not to provide a lifetime pension, but where practicable to ease the transition for the parties from the joint married state to their new status as single people living apart and independently.’ ” Simonds, supra, 165 Md.App. at 605 , 886 A.2d 158 (quoting Tracey, supra, 328 Md. at 391 , 614 A.2d 590 ). See also Turrisi v. Sanzaro, 308 Md. 515, 524-25 , 520 A.2d 1080 (1987) (noting that fixed-term alimony “promote[s] the transitional or rehabilitative function” of the Act); Jensen v. Jensen, 103 Md.App. 678, 693 , 654 A.2d 914 (1995) (stating that “one of the purposes of the [Act] was to change the focus of alimony from a form of lifetime pension toward a bridge to self-sufficiency”); Campolattaro v. Campolattaro, 66 Md.App. 68, 75 , 502 A.2d 1068 (1986) (observing that alimony “is chiefly rehabilitative and is not designed to be a life-time pension” (citation omitted)); 1980 Report of the Governor’s Commission on Domestic Relations Laws (hereinafter “Governor’s Commission’s Report”), at 4 (stating that “the purpose of alimony at the time of divorce is not to provide a lifetime pension”). 7 ³³⁷ Notwithstanding the general rule favoring fixed term alimony, the statutory scheme adopted by the Act recognizes two exceptional circumstances in which a circuit court may award indefinite alimony. Turrisi, supra, 308 Md. at 527 , 520 A.2d 1080 (observing that “the use of indefinite alimony only in exceptional circumstances” is one of the concepts underlying the Act); Roginsky v. Blake-Roginsky, 129 Md.App. 132, 142 , 740 A.2d 125 (1999). These exceptional circumstances appear in the Act at Md.Code (2006 Repl.Vol.), section 11-106(c) of the Family Law Article (“FL”).

First, the court has discretion to award indefinite alimony if, “due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting[.]” FL § 11-106(c)(1). And second, the court may award indefinite alimony upon a finding that, “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.” FL § 11 — 106(c)(2). These exceptions are a “restraint upon the doctrine of rehabilitative alimony” that exist to “protect the spouse who is less financially secure from too harsh a life once single again.” Tracey, supra, 328 Md. at 392 , 614 A.2d 590 . In this case, only the latter, “unconscionable disparity,” exception is at issue. 8 Whether the respective standards of living of the parties post-divorce will be unconscionably disparate is a question of fact.

Solomon v. Solomon, 383 Md. 176, 196 , 857 A.2d 1109 (2004). It is a second-level fact, however, that necessarily rests upon the court’s first-level factual findings on the factors, listed in FL section 11 — 106(b), that (so long as they are applicable) are relevant to all alimony ³³⁸ determinations, and “all the factors,” including those not listed, “necessary for a fair and equitable award”; and upon how much weight the court chooses to give to its various first-level factual findings. Whether there will be a post-divorce unconscionable disparity in the parties’ standards of living usually begins with an examination of their respective earning capacities. In so doing, the court must “ ‘project[ ] forward in time to the point when the