Testerman v. Testerman

1

SONJA TESTERMAN v. RANDALL TESTERMAN

No. 2208-2023

Court of Special Appeals of Maryland

November 19, 2024

IN THE APPELLATE COURT OF MARYLAND^{[* ]}

Circuit Court for Harford County Case No.: C-12-FM-19-001055

Arthur, Beachley, Getty, Joseph M. (Senior Judge, Specially Assigned), JJ.

OPINION

Beachley, J.

On January 4, 2024, the Circuit Court for Harford County granted Sonja Testerman ("Wife"), appellant, an absolute divorce from Randall Testerman ("Husband"), appellee. Among other things, the court also granted Wife a monetary award of $10,000, ordered the sale of the marital home and directed that the parties split the proceeds therefrom, denied Wife's request for an interest in Husband's retirement benefits, denied Wife's request for a survivor interest in Husband's retirement plan, and denied Wife's request for attorney's fees. Wife appealed and presents eleven "issues" for our review. We recast, as follows, the only issues Wife raises which are properly before this Court:

1. Whether the circuit court erred in its identification and valuation of the parties' marital property.

2. Whether the circuit court erred in denying Wife any interest in Husband's retirement benefits and denied her request for a survivor interest in his retirement plan.

3. Whether the court erred in its calculation of temporary alimony arrears and in its denial of Wife's request for indefinite alimony.

4. Whether the court erred in denying Wife's request for attorney's fees.

For the reasons to be discussed, we shall vacate the judgment (other than the judgment of absolute divorce) and remand for further proceedings consistent with this opinion.^[1]

BACKGROUND

Pre-Trial Proceedings

On June 11, 2019, Wife, through counsel, filed a "Complaint for Absolute Divorce And For Other Appropriate Relief," alleging desertion, cruelty of treatment, and excessively vicious conduct. Among other things, Wife requested an absolute divorce, alimony, all of the family use property, a determination and valuation of marital property, a monetary award, and a "transfer or award of an equitable amount/share/interest in the marital portion" of Husband's interest in any pension plan or retirement account, "as well as award any survivor benefits survivor annuities, pre-retirement death benefits, special allowances, early retirement subsidies, to which [Wife] may be entitled as the former spouse" of Husband.

Husband through counsel, filed an Answer to Wife's Complaint, requesting that the court award him an absolute divorce from Wife pursuant to his counter complaint, and asking that "the remaining relief in [his] Counter Complaint for Absolute Divorce be awarded as requested[.]" (Husband, however, did not file a counter-complaint.) In his Answer, Husband also urged the court to deny the "remaining relief requested" in Wife's complaint.

Husband's paper did not include a certificate of service and it does not appear that Husband served a copy of his motion on Wife. See Rules 1-321(a) and 1-323. In addition, Husband's counsel has not filed a line with this Court withdrawing his representation. Consequently, Husband's pro se request for a continuance is denied.

In March 2020, the court granted the requests of counsel to strike their respective appearances for Wife and Husband. From that point on, the parties represented themselves.

By order dated December 23, 2020, the court ordered Husband to pay Wife $600 per month in temporary alimony beginning December 1, 2020. In December 2022, Wife filed a petition for contempt alleging non-payment of the temporary alimony. After a hearing on April 20, 2023, the court found that Husband owed Wife $1,200 in temporary alimony and, consequently, found him in contempt. The court, however, found that Husband had a "present inability to pay[,]" and provided that Husband could purge the contempt by "paying his outstanding alimony obligations at the time of the divorce trial[.]"^[2]

Trial

The merits trial began on January 2, 2024. The court, recognizing the parties' selfrepresented status, began by asking the parties to clarify what each was seeking in the case. Wife confirmed that she was requesting an absolute divorce, indefinite alimony, the sale of the marital home and the division of the proceeds therefrom,^[3] a determination and valuation of marital property, a determination of personal property, an equitable portion of Husband's pension and death benefits, a monetary award, and reasonable attorney's fees. Husband asked the court to deny all relief requested by Wife. He also confirmed that he had not filed a counter-complaint for divorce or other relief. Husband, however, told the court that he would like to keep the marital home and requested that Wife's interest be transferred to him.

The court then informed the parties that it would take a recess to enable Husband to complete a financial statement and Wife to update hers.^[4] Before doing so, the court also reviewed Maryland Rule 9-207, which provides that when a monetary award is at issue in a divorce proceeding, the "parties shall file a joint statement listing all property owned by one or both of them." Neither party had completed the Rule 9-207 joint statement in this case, which should have been filed with the court at least ten days before the trial date. Rule 9-207(c). Although acknowledging that it could sanction the parties for their failure to submit the joint statement, the court chose instead to give them the opportunity to complete it. The court then gave the parties the Rule 9-207(b) joint statement form and carefully explained how it should be completed.

After a nearly two-hour recess, the hearing resumed. Because the parties did not reach an agreement on the properties to be listed on the joint statement-or the value of the properties identified-the court stepped in "to try and extrapolate" from their respective forms a document that represented the parties' position.

As we summarize in the table below, the parties agreed that certain property was marital property, but they disagreed as to the fair market value ("FMV").

Property How Titled FMV-Wife FMV-Husband

Wife/Husband House^[5] joint/joint $180,000 $120,000 Boat joint/?^[6] $ 35,000 PT Cruiser husband/husband $ 6,000 $ Ice cream truck joint/?^[7] $ 35,000 $ Canoe trailer joint/?^[8] $ 3,000 $ Tractor joint/husband $ 3,000 $ Jeep Wrangler joint/husband $ 6,000 $ Tiffany-style lamps joint/joint $ 2,000 $ Misc. personal prop. joint/joint $ 50,000 $

The court also reviewed items of property that the parties agreed were not marital property. In addition, the form included items the parties could not agree were marital or non-marital, including a "pool bar," hot tub, and miscellaneous personal property.

After assisting the parties with the completion of the Rule 9-207 statement, the court gave the parties time to review it. They both agreed that it was "an accurate extrapolation or summary of the parties' positions[ ]" and signed it. The court then heard their testimony.

Wife testified that she was then 57 years old and Husband 59 years old. The parties married on July 22, 1989, and had two children together, both now in their thirties. Husband and Wife separated twice in the early 1990s, but they reconciled each time after a brief separation. Wife claimed that Husband assaulted her many times (at least thirty) during their marriage.

Wife acknowledged that "for many, many years, [Husband] never hit" or "abused" her. But in 2016, following Husband's back surgery, Wife claimed that "he wasn't the same anymore." Wife related that during the surgery Husband "died on the table[ ]" and although they ultimately revived him, "he had severe brain damage" and once home from the hospital he "became aggressively angry all the time." She claimed that Husband accused her of having an affair, something she denied.

During an argument in March 2019, the parties, in Wife's words, engaged in "physical violence with each other." Husband sought a protective order, alleging that on or about March 12, 2019, Wife had punched, slapped, shoved, and threatened him and had come after him with a knife. Upon Wife's consent, the court granted Husband a final protective order. At the divorce hearing, in discussing the incident, Wife admitted that she had grabbed a knife "to protect" herself because Husband was "slamming [her] against the walls[]" and she "thought he was going to kill" her. On March 16, 2019, the police served Wife with the protective order and escorted her from the marital home, which she was barred from entering during the order's one-year duration. This date marked the beginning of the parties' final marital separation.

Wife related that Husband worked for thirty-two years, throughout much of their marriage, for Chrysler, but he hurt his back in 2012 and retired on disability. She claimed that he then began receiving both workers' compensation and a pension from Chrysler. Wife submitted a copy of a statement, with the caption "advice of deposit non-negotiable," reflecting a payment made on November 1, 2019 to Husband from State Street Retiree Services totaling $2,913.81 (after deductions for federal tax and VEBA Health). She testified that this deposit was Husband's monthly retirement benefit from Chrysler. In addition, from 2012 until February 2, 2022, Husband received $618 per week in workers' compensation.

Husband admitted that he is presently receiving a pension, stating that he received $2,944.00 per month. He confirmed that the workers' compensation payments of $618 per week ended January 2, 2022. When the court asked him why those payments were terminated, Husband related that he had received a letter telling him to look for a job, but because he is "disabled" he cannot work and...