K.B. v. D.B.

K.B. v. D.B.

No. 2860

No. 1155

COURT OF SPECIAL APPEALS OF MARYLAND

July 27, 2020

September Term, 2018

September Term, 2019

April 29, 2020

DIVORCE - ALIMONY - INDEFINITE ALIMONY

Maryland law generally favors fixed-term rather than indefinite alimony, but there are two circumstances under which a circuit court may award indefinite alimony. The first circumstance is when due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting. The second is when 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.

INDEFINITE ALIMONY - UNCONSCIONABLE DISPARITY - STANDARD OF REVIEW

A trial court's determination of whether an unconscionable disparity exists is a finding of fact, which the appellate courts review applying the clearly erroneous standard of review. The unconscionable disparity determination is a second-level fact that necessarily rests upon the trial court's first-level factual findings on the statutory factors set forth in Md. Code (1984, 2019 Repl. Vol.), § 11-106(b) of the Family Law Article.

INDEFINITE ALIMONY - UNCONSCIONABLE DISPARITY - LEGAL FRAMEWORK

The unconscionable disparity determination usually begins with an examination of the parties' respective earning capacities. Although mathematical disparity is only the starting point for an unconscionability analysis, the greater the disparity, the more likely it will be found to be unconscionable. An unconscionable disparity exists and indefinite alimony is warranted when the standard of living of one spouse will be so inferior, qualitatively or quantitatively, to the standard of living of the other as to be morally unacceptable and shocking to the court.

INDEFINITE ALIMONY - UNCONSCIONABLE DISPARITY - LENGTH OF MARRIAGE

The length of a marriage is a key factor for the court's consideration when determining whether an unconscionable disparity exists and a long marriage is more likely to result in indefinite alimony. A marriage of almost seventeen years at the time of separation and over nineteen years at the time of trial is a relatively long marriage and the length of the parties' should have been a key factor for the trial court's consideration.

INDEFINITE ALIMONY - UNCONSCIONABLE DISPARITY - PRE-MARRIAGE DISPARITY IN LIVING STANDARDS

A trial court may consider the parties' pre-marriage disparity in living standards when determining whether indefinite alimony is appropriate, but it must be considered in the context of other relevant factors and not given undue weight, particularly when the parties were married for a long period of time.

INDEFINITE ALIMONY - UNCONSCIONABLE DISPARITY DETERMINATION

The trial court erred in finding that there was no unconscionable disparity between the parties' post-divorce standards of living when the wife's imputed income of $35,000 per year was approximately two percent of the husband's income of over one and one-half million dollars per year, the wife was forty-nine years old and had been absent from the workforce for twenty years, and the wife's primary contributions to the household were in the form of childcare and home care.

MARITAL AND NON-MARITAL ASSETS - APPRECIATION - VALUATION - EXPERT TESTIMONY

The trial court did not err by crediting the husband's expert witness's testimony regarding the valuation of the company in which the husband owned a one-third interest. The trial court was entitled to determine, based upon the expert witness's testimony, that the business had not increased in value during the parties' marriage and was, therefore, a non-marital asset.

MARITAL PROPERTY - DISPOSITION OF REAL PROPERTY - TRANSFER OF THE PARTIES' PRINCIPAL RESIDENCE

The trial court did not err in finding that the parties' New Hampshire property was the parties' principal residence and ordering the transfer of the property pursuant to Section 8-205(a)(2)(iii) of the Family Law Article when the parties had moved into the New Hampshire residence with the intent to reside there permanently as a family and it was the last home in which the parties lived together.

MARITAL PROPERTY - DISPOSITION OF REAL PROPERTY - CARRYING COSTS OF PROPERTY PENDING SALE

The trial court did not err in ordering a sale of lieu of partition of the parties' Annapolis home and ordering that the parties be jointly responsible for the carrying expenses of the parties' Annapolis home pending its sale.

Circuit Court for Anne Arundel County

Case No. C002-FM-15-004483

REPORTED

Berger, Reed, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

Opinion by Berger, J.

* Melanie M. Shaw Geter, J., did not participate in the Court's decision to report this opinion pursuant to Md. Rule 8-605.1.

This is the second time the parties, K.B. ("Wife") and D.B. ("Husband"), have been before us on appeal from an order of the Circuit Court for Anne Arundel County in their divorce case. In 2018, we addressed the circuit court's order regarding custody of the parties' minor child ("Son") in an unreported opinion. K.B. v. D.B., No. 1769, Sept. Term 2017 (filed June 19, 2018). In the prior appeal, we vacated the trial court's order granting primary physical custody of Son to Husband and remanded the custody matter for further proceedings. This appeal involves economic matters only.

Wife presents four questions for our review, which we have rephrased slightly as follows:

I. Whether the circuit court erred and/or abused its discretion in connection with its alimony award.

II. Whether the circuit court erred and/or abused its discretion in connection with its determination of marital property and the monetary award.

III. Whether the circuit court erred in connection with its child support order.

IV. Whether the circuit court erred in connection with its counsel fees award.

For the reasons explained herein, we shall affirm the circuit court's judgment of divorce but otherwise vacate the judgment and remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS

We set forth much of the relevant factual and procedural background in our opinion in the parties' prior appeal:¹

I. History of the Family Prior to the Separation of [Wife] and [Husband] in 2015

A. General Information

[Wife] was born in Arnold, Maryland in 1968. [Wife] received a bachelor's degree from Towson University and worked for four years as a flight attendant. [Wife] pursued a master's degree in teaching at Johns Hopkins University, but she dropped out prior to graduation after the dissolution of her first marriage.

[Husband] was born in 1955 in Exeter, New Hampshire. After graduating from the University of New Hampshire with a business degree in 1980, [Husband] worked for Nike in sales and marketing. [Husband] moved to Annapolis, Maryland in 1982. Four years later, [Husband] left Nike and became a salesman for commercial jets. In 1991, [Husband] and two co-workers formed their own company, which buys, sells, and brokers corporate jets.

[Husband] and [Wife] met in 1996 when [Wife] was working at [Husband]'s business. [Husband] and [Wife] were married in 1998 in Meredith, New Hampshire. [Husband] had three children from a prior marriage. For most of their marriage, the couple lived in Anne Arundel County, Maryland.

B. Birth of Son

Son was born in 2003. [Wife] testified that she was the primary caregiver for Son and that she tended to his daily needs, made his meals, bathed him, and put him to bed. [Wife] testified that she took Son to school and extracurricular activities and picked him up afterward. [Wife] testified that she was responsible for planning social events, birthdayparties, holidays, and family events. [Wife] testified that she made doctor and dentist appointments for Son, attended school functions and parent-teacher conferences, helped Son with homework and school projects, and volunteered in Son's classrooms.

[Husband] testified that [Wife] was frequently unable to care for Son due to health issues. [Husband] testified that [Wife] suffered from severe depression, fibromyalgia, Lyme disease, and bipolar disorder. [Husband] testified that [Wife] would stay in bed for long periods of time. [Husband] testified that these health issues interfered with [Wife]'s ability to parent for "40, 50 percent" of their relationship, leaving [Husband] to take on the role of primary caregiver for Son. [Husband] testified that he sometimes took Son to school, made meals for Son, and took Son shopping. [Husband] testified that he regularly took Son to the pediatrician and dentist during his marriage to [Wife].

[Wife] denies that she has any mental health problems that have affected her parenting. [Wife] testified that she suffered from "situational depression" after discovering her father's dead body, and that she was prescribed an antidepressant around that time, but she no longer takes it. [Wife] also testified that she was prescribed 25 milligrams of Seroquel — an anti-psychotic at much higher dosages — as a sleep aid. In a letter supporting [Wife]'s request to take a support animal on an airplane, [Wife]'s therapist stated that [Wife] suffers from depression. [Wife] testified that [Husband] had obtained a similar letter, and that the purpose of the letters was to facilitate traveling with their pets.

[Husband] testified that his work schedule during the marriage was erratic and that he worked forty to fifty hours a week, including nights and weekends. [Husband] testified that he sometimes had to travel for business, but not more than one day every couple of weeks. [Husband] testified that [Wife] took two or three vacations by herself every year for many years, and that [Husband] took care of Son during these times.

[Husband] testified that he had a good relationship with Son prior to the spring of 2015. [Husband] testified that he and Son would play baseball, ride

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