Belay v. Orma

1

ESAYAS BELAY v. SEMERT ORMA

No. 313-2022

Court of Special Appeals of Maryland ^[**]

June 1, 2023

Circuit Court for Montgomery County Case No. 167854FL

Leahy Friedman, Wright, Alexander, Jr. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

LEAHY J.

This is an appeal from a Judgment of Absolute Divorce, in which the Circuit Court for Montgomery County granted a monetary award in the amount of $23,188 in favor of the appellee, Semert Orma ("Ms. Orma"), to be paid by the appellant Esayas Belay ("Mr. Belay"). The court awarded that sum as an adjustment of the equities between the parties. In addition, the circuit court awarded Ms. Orma use and possession of the marital home, for a period of three years, and ordered Mr. Belay to pay the mortgage on the marital home during that time. Mr. Belay filed a motion for reconsideration, which the circuit court denied.

Mr. Belay filed a timely appeal. He presents three questions for our review:

I. "Did the circuit court err when it granted a monetary award to [Ms. Orma] without considering the statutory factors contained in Maryland Code, Family Law § 8-205(b)?"

II. "Did the circuit court abuse its discretion when it granted [Ms. Orma] a monetary award based on [Mr. Belay's] bank account containing proceeds from a loan?"

III. "Did the circuit court abuse its discretion when it granted [Ms. Orma] use and possession of the marital home and ordered [Mr. Belay] to pay the monthly mortgage for the marital home during the three years [Ms. Orma] had use and possession of the marital home?"

For the reasons explained below, we shall affirm the judgment of the Circuit Court for Montgomery County.

BACKGROUND

A. The Parties' Marriage

The parties were married in 2003, in Ethiopia. The parties' three minor children were born in 2009, 2014, and 2016.

The parties separated on December 20, 2019, after Ms. Orma secured, on that date, a protective order against Mr. Belay, effective for one year. The terms of the order, to which Mr. Belay consented, granted custody of the parties' three children to Ms. Orma. Mr. Belay was granted weekend visitation with two of the children. Mr. Belay was ordered to continue to pay the mortgage and utility bills for the marital home, as well as $300 per month in emergency family maintenance.

B. Divorce Action and Interim Orders

In February 2020, Mr. Belay filed a complaint for divorce based on a one-year separation. Ms. Orma filed a counter-complaint, seeking a divorce on grounds of cruelty of treatment and excessively vicious conduct.

On December 21, 2020, a consent order was entered which resolved issues of child custody and child access. Under the terms of the consent order, Ms. Orma was granted sole legal and physical custody of the parties' children. Mr. Belay was granted visitation with the two younger children on the first three weekends of each month. Father was ordered to participate in "reunification therapy" with the oldest child.

Also on December 21, 2020, following a virtual hearing on the issue of child support, the court ordered Mr. Belay to pay child support in the amount of $1,334.00 per month, pursuant to an order for earnings withholdings.

C. Trial

On October 7, 2021, the court held a trial on the issues of divorce, property settlement, and alimony. Mr. Belay was 42 years old at the time of trial and Ms. Orma was 35 years old. The parties' children were then 12, 6, and 5 years old. ]Mr. Belay and Ms. Orma were the only witnesses to testify. Both parties were assisted by an Amharic interpreter.^[1]

Mr. Belay's testimony

Mr. Belay testified that the parties had been separated, for more than one year, as a result of a domestic violence consent order. He stated that there had been no marital relations since that time and that there was no hope of reconciliation.

Mr. Belay denied that he had engaged in a "pattern of cruelty" toward Ms. Orma and denied any assault. He said that "things started changing" when Ms. Orma's parents moved in with her. He claimed that Ms. Orma's parents "want the house" and "wanted [him] to get out, . . . so that they can own the house." Mr. Belay stated," . . . I did not assault them. I didn't do anything. They just applied . . . for a protective order and they told me not to get near to the area."

Mr. Belay was cross-examined about a relationship with a woman in Ethiopia, whom we shall refer to as Ms. A. Ms. Orma introduced into evidence a photograph of Mr. Belay, who is in formal attire, and Ms. A., who, as Mr. Belay conceded, was wearing a wedding dress. Mr. Belay explained that the photograph was taken in June 2020, at which time, Ms. A. was pregnant with their child. Mr. Belay denied, however, that he and Ms. A. had a wedding. Mr. Belay claimed that the child was the product of "a thing that happened over one night and it was not a romantic relationship." Mr. Belay testified that he and Ms. A. "took the [wedding] clothing to the photo place and we took the picture there" "so that [Ms. A.'s] parents, her family knows [sic] because she was pregnant[.]"

At the time of trial, Mr. Belay and Ms. A.'s child was seven months old. Mr. Belay was sending Ms. A. $100 per month in child support.

Mr. Belay was employed as a school bus driver and testified he earned an annual base salary of $50,000 to $55,000 per year. However, he also testified that his present salary was $60,507.

Although Mr. Belay had disclosed no additional income during discovery, and presented no evidence at trial, he testified that he supplemented his income as an Uber driver in the District of Columbia two or three days a week, from 10:00 a.m. to 1:00 p.m., when he was not otherwise occupied as a school bus driver. According to Mr. Belay, he was not working for Uber "that much" at the time of trial because of problems with his car's engine. He said that his average weekly Uber income was between $40 to $70, but that "sometimes it could be zero."

Mr. Belay did not work as a school bus driver for an eight to nine-month period of time in 2020 because schools were closed during the COVID-19 pandemic. However, he continued to receive his regular salary during that time. Mr. Belay stopped driving for Uber at the "start of the pandemic."

Mr. Belay traveled to Ethiopia and back two or three times between March 2020 and August 2020. While in Ethiopia, he cared for his brother and his father, who had both become ill with COVID-19. Mr. Belay's father died in 2020, as a result of his illness.

Mr. Belay filed an amended financial statement the day before trial, in which he disclosed, for the first time, that he received a loan from the Small Business Administration in the amount of $91,400. He testified that the loan was available to Uber drivers to compensate for lost income related to the pandemic. He received the first disbursement of the loan, in the amount of $22,100, on July 1, 2020. The balance of the loan amount was received by Mr. Belay a month or two prior to trial. Mr. Belay testified that he would have to begin repaying the loan in 2022, and that the payment would be $400 to $450 per month.

According to Mr. Belay's bank statements, he withdrew $5,000 in cash from his bank account between July 8 and July 16, 2020. Of the $21,043.51 he withdrew from his bank account between July 29 and August 26, 2020, over $16,000 was in cash. Mr. Belay claimed that the funds were used to pay the mortgage on the family home and to repay money that he had borrowed from friends so that he could furnish his apartment, buy clothing and food, and purchase airfare to Ethiopia.

Mr. Belay admitted under cross-examination that he had not disclosed the SBA loan in the financial statement that he filed on August 5, 2020. He explained that it was a "business loan" and he did not think it would be "connected" to the divorce proceedings. He denied that the owned a house in Ethiopia, as counsel for Ms. Orma alleged in opening statement. He stated that "I don't have anything on my name" and said that he did not "use family money toward [the house in Ethiopia] that's in my father's name."

At the time of trial, Mr. Belay's bank account had a balance of $46,375.93. According to counsel for Mr. Belay, the balance was comprised entirely of remaining proceeds from the SBA loan.

After the protective order expired, in December 2020, Mr. Belay stopped paying the mortgage on the marital home because he was no longer under court order do so. Mr. Belay "thought that [Ms. Orma] was paying [the mortgage], but, two weeks before trial, the bank notified Mr. Belay that the mortgage had not been paid for 10 months. Mr. Belay acknowledged that a foreclosure would impact his credit and "make [him] go bankrupt." However, he explained he was "not using this 40 to $50,000 that [he] still ha[d] left to keep [the family home] from going into foreclosure[,]" because he planned to "use that money to buy car and to start Uber driving." Mr. Belay added, "[Ms. Orma's] mom and dad are living there. They have been working for the past six years. So why do I have to pay?"

The parties' stipulated at trial that the fair market value of the marital home was $188,000. The outstanding principal balance on the home mortgage was approximately $158,000. Mr. Belay stated that he wanted the children to live in the marital home until the youngest reached the age of 18, and that Ms. Orma should pay the mortgage during that time. Alternatively, Mr. Belay stated that he was willing to purchase Ms. Orma's share of equity in the home, using funds from the SBA loan.

According to Mr. Belay's most recent financial statement, he earned $5,047 in total income per month. Mr. Belay explained that he did still work for Uber, "sometimes," but he did not include Uber income in his...