Bryant v. Bryant

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2096
September Term, 2013
_________________________
TROY T. BRYANT
v.
ROXANNA K. BRYANT
_________________________
Eyler, Deborah S.,
Kehoe,
Nazarian,
JJ.
_________________________
Opinion by Nazarian, J.
_________________________
Filed: October 30, 2014
*Judge Kevin F. Arthur did not participate,
pursuant to Md. Rule 8-605.1, in the Court’s
decision to report this opinion.
Troy Bryant (“Husband”) appeals four of the Circuit Court for Anne Arundel
County’s many decisions in a divorce proceeding initiated by his (now ex-)wife, Roxanna
Bryant (“Wife”). He claims that the trial court abused its discretion when it awarded Wife
indefinite alimony, and that it erred in finding that payments he characterizes as “loans”
made to him by his employer constituted income during the marriage, and therefore marital
property for purposes of calculating indefinite alimony. He also argues that the court
wrongly failed to create a “constructive trust” or other vehicle to vest him with a full
ownership interest in property at issue in the divorce, even though it was titled in Wife’s
name. Finally, he appeals the trial court’s finding that he was in contempt after he failed
to pay child support. Wife filed a cross-appeal arguing that the court relied on an incorrect
alimony figure when it calculated child support. We find no errors and affirm.
I. BACKGROUND
1. The marriage and the parties’ careers.
Husband and Wife were married on June 26, 1992 and had two children, both of
whom are now over the age of eighteen. Although neither Husband nor Wife graduated
from college, both have had successful careers. After serving in the Marines, Husband
worked as a financial advisor for several institutions, and he accepted his current position
with UBS in 2010. His salary agreement with UBS was complex, and the subject of much
disagreement by the parties.
Husband entered into a Letter of Understanding with UBS on November 8, 2010,
under which he received what the Letter characterized as a “cash loan” or “transition loan”
in the amount of $1,305,000 within thirty days. Husband also signed a series of “Transition
Agreements” and promissory notes with UBS on November 17, 2010 and thereafter.
Unlike more conventional loans, UBS made “payments” (by forgiving one-ninth of each
loan) on Husband’s anniversary dates with the company as long as he continued to work
there, and they would be forgiven in full after nine years.1 Husband took the position at
trial that the “loans” were, in fact, loans, not signing bonuses or compensation, because
after the divorce he would remain responsible to repay them, and in any event they could
not be considered “property acquired during the course of the marriage” (the term of art
that we discuss below) to the extent he would not have done the work entitling him to
forgiveness until after the divorce. Husband asserted generally that although he received
the loan proceeds and a commission-based salary, he really only netted about $65,000 in
income each year.
Wife, on the other hand, contended that the $1.3 million payment was a “retention
bonus” that UBS structured, for tax purposes, as a loan with payments due over a period
of years. Wife testified that Husband had referred to these payments at the outset as a
“signing bonus,” and only began calling the payments a “loan” once the divorce proceeding
1
A handful of similar payments were scheduled for later dates, two of which had a
“transition date” before the parties separated in July 2012, and the nature of these payments
was also in dispute. By the time the parties separated on July 1, 2011, Husband had received
total payments under the Letter totaling $1,667,000, nearly $300,000 of which had been
forgiven. As of the time of the trial court’s opinion, Husband had received over $2 million
in “incentive payments.”
2
was underway. (For clarity, we refer to the payments that Husband received from UBS
through the course of the marriage as the “UBS payments.”)
Wife worked as a secretary after graduating from high school, and continued to
work after they married and through the birth of their two children. By 2000, she was
earning about $60,000 a year. In 2001, she and three friends started a company, Intuitive
Business Concepts, Inc. (“IBC”), that was successful: each partner received an annual
salary of $104,000, along with partnership distributions and other benefits that, at their
peak, yielded a salary of $145,000. After she tried to sell her interest in the business in
2006, she became embroiled in a dispute with her partners and ultimately settled with IBC,
exchanging her interest for a series of payments totaling $280,000 over three years. Wife
testified that she and Husband put all this money toward living expenses.
Wife took a year off from working to comply with a non-compete she signed with
IBC.2 In September 2008, she took a job as an independent contractor for the Accrediting
Council for Independent Colleges and Schools (“ACICS”). At the time of trial, she worked
approximately twenty-four hours a week and billed $125 an hour, but received no benefits
or reimbursements. Wife testified that she has looked for a full-time job, and the maximum
potential full-time salary she had found was about $110,000 a year—approximately
2
Wife also claimed at trial that she exited IBC to spend more time with her children:
Husband had “always told me I’d be able to stay home from work because he would be
able to take care of me and he’d make a lot.” Husband, on the other hand, testified that he
had “no idea” that Wife planned to retire after she left IBC.
3
$15,000 more than she was making. She also spent about sixteen hours a week working
(unpaid) at the bar she and Husband acquired years ago which, as we discuss next, became
a significant problem in the parties’ relationship.
2. Park Place Adventures, LLC & its investments.
To realize his “life long dream” of owning his own bar, Husband formed, on January
1, 2010, a limited liability company, Park Place Adventures, LLC (“Park Place”) that
purchased a Severna Park restaurant called Snyder’s. (The business later changed the name
of the bar, and we refer to it generally as “the bar.”) Husband intended to share ownership
in Park Place with two of his UBS clients, Mark Tinordi and Jeffrey Kogok, but discovered
shortly before forming it that UBS prohibited him from investing with his clients. To
circumvent this problem, he placed a fifty-one percent interest in Park Place in Wife’s
name and he held no membership share at all. Ironically, Wife had no interest in buying
the bar, and testified that she “knew it would tear the family apart” because, as she saw it,
it would give Husband opportunities to stay out late and drink with friends. She allowed
Husband to put Park Place (and by extension, the bar) in her name, though, because she
was concerned that even more problems would follow if the ownership share went to one
of their children. Park Place purchased Snyder’s on December 31, 2010. Husband financed
the purchase by obtaining a UBS equity line of credit using his UBS payments as collateral
and then borrowing about $1.4 million from the line of credit.
The haphazard organization of Park Place may have contributed to the problems
that followed. As Mr. Kogok explained, “the whole partnership agreement was sort of a
4
last-minute thrown together [deal], as far as I can tell.” Mr. Kogok testified that he initially
invested a quarter-of-a-million dollars in Park Place, and put in another $150,000 within
the year-and-a-half before trial. He did not investigate the details of the partnership or its
management of the bar. When asked about whether he had approved the provision in the
partnership documents that prevented members from selling their shares without
unanimous consent, he admitted to signing off on it: “Again, I did a sloppy job and I just
signed off on the thing because it was kind of after the fact and, again, I had complete faith
in [Husband].”
Everyone agrees that Husband changed the bar’s name in 2011 to “Hot Rodz &
Rydz,” but they dispute many of the facts surrounding its management and finances. Wife
says that she found out when the parties began the divorce proceeding that employees’
paychecks were bouncing, and she had major concerns about how it was run. At that point,
she took over the bar, cut a number of other benefits, and cleaned up the bar’s finances.
Mr. Tinordi, who had been a client of Husband for about ten years, testified that once Wife
took over, the restaurant (whose name changed again, this time to the “Severna Park Tap
House”) started making money. Mr. Tinordi had a falling-out with Husband about
Husband’s poor management of the bar,3 and at the time of trial Mr. Tinordi was working
there about five days a week, without salary, in an effort to help turn it around.
3
This falling-out extended to Mr. Tinordi’s investments with Husband; Mr. Tinordi
received a call from UBS at some point telling him that his money would be handled by
another financial advisor.
5
Husband argued at trial that Park Place had a fair market value of $800,000 (based
largely on its ownership of the Severna Park Tap House and the land on which it sat). He
claimed that he was entitled to 77 percent of Wife’s interest in the value of Park Place
(which, he claimed, was purchased with a loan collateralized by the proceeds of the UBS
payments), reasoning that he had not yet repaid 77 percent of the UBS payments as of the
date of the divorce.
3. The parties’ lifestyle.
As Husband’s earnings increased, the couple’s lifestyle changed too. The court
described it as “lavish,” and their purchases backed up that characterization. Husband also
appears to have displayed great magnanimity in sharing his wealth, both before and after
the marriage ended; the former time period mattered to the parties’ standard of living
during the marriage, and the latter period bore on the court’s analysis of whether Husband
had dissipated marital assets after they separated:
Pre-separation
 The parties bought their house in May 2007 for $900,000, and bought the adjoining
lot in order to build a swimming pool. As of the time of trial, neither Husband nor
Wife was making mortgage payments on the house.
 The parties owned thirteen vehicles valued at nearly $250,000.
 The parties bought permanent seat licenses to Ravens’ games worth $20,000.
 The family enjoyed luxury vacations to Jamaica, the Bahamas, and ski resorts, as
well as regular summer vacations.
6
Post-separation
 In September 2011, Husband bought a house for a daughter by his first marriage,
which she transferred to his first wife, who took out a mortgage on the property.
Husband bought the house back from his ex-wife after it went into foreclosure.
 Husband bought a car for a friend’s use and paid the insurance on it.
 Husband gave a boat to his son, who then sold it for $10,000, a price Husband
thought was far too low.
 Wife testified that after the divorce proceedings were underway, Husband began to
cash in his retirement accounts. He withdrew nearly $50,000 each in April and May
2011, and withdrew over $180,000 in September that he gave to his daughter and
son-in-law to buy a house.
 The court found that Husband spent over $2,500 a month on “dining out and
alcohol,” and noted that at trial, Husband could not account for more than $90,000
that he had spent between February 2013 and July 2013, other than to call them
“living expenses.” The court also found that he spent several thousand dollars on
jewelry for himself and his girlfriend.
The parties carried significant debt and Husband used the UBS payments to pay it
off. The court found that “[i]t is clear that this money received [from UBS] was used by
the parties during their marriage to support their lifestyle.”
4. The marriage dissolves.
The parties disagreed about which of them brought about the deterioration of the
marriage, but the trial court attributed it largely to Husband’s partying, drinking, and
philandering. Although Wife conceded that she had used drugs with Husband on occasion,
she said that this took place only when he brought drugs into the house. (Husband argued
that Wife, too, lived well, but the trial court did not appear to find his testimony in this
7
regard significant or credible. 4) Wife testified that Husband had “another life going on
[that she] didn’t know about,” which included heavy drinking, drug use, and affairs. He
was rarely home at night, and she testified that she suspected he was with other women.
The marriage was volatile well before the couple separated for the last time. Wife
testified that in 2006, she got a phone call in the middle of the night from a woman claiming
to be Husband’s girlfriend. Husband was out of the house, and Wife tracked him down by
calling another romantic interest of Husband, with whom he was out at the time. Wife
threw his belongings onto the front lawn and he moved out of the house, but they reconciled
several months later. Mr. Kogok recalled admonishing Husband at one point that he should
not be staying out so late, and should be spending evenings at home with his family.
The parties separated for good on July 1, 2011.5 Wife filed for divorce in June 2012.
5. Proceedings in the trial court.
The court held a four-day hearing in July 2013, at which Husband, Wife, and
numerous other witnesses testified, and issued a written opinion that was docketed on
October 9, 2013. The court granted Wife’s request for divorce, and considered separately
child support, alimony, marital property, dissipation of assets, and use and possession of
4
Husband accused Wife generally of infidelity, drug use, and other immoral behavior, but
did not point to any specific incidents that he claims played a part in the break-up of the
marriage.
5
The record reveals that they had sexual relations through December 2011, although the
court ultimately found that they no longer lived under the same roof as of that July.
8
the home, along with Wife’s claim for attorney’s fees. The court’s forty-one page written
opinion made detailed findings of fact and decided numerous disputed issues by the parties.
Among other things, the court found that Husband “lack[ed] credibility” overall, pointing
out that “[h]is testimony was substantially challenged.” It lay the blame for the marriage’s
deterioration almost solely at Husband’s feet: “The Court also finds that this is a rare case
in which the ‘circumstances that contributed to the estrangement of the parties’ weighs
heavily in that, but for [Husband’s] actions and mistakes, particularly his substance abuse,
proclivity for other women, and late night partying, the marriage might still be intact.”
We discuss the trial court’s specific factual findings in greater detail as necessary
for our analysis, but highlights included the following decisions:
 The court awarded use and possession of the family home to Wife, at least until their
youngest daughter graduated from high school or turned nineteen;
 The court found that Husband had failed to disclose and had dissipated assets,
spending over $2,000 per month on food and drink for the six months leading up to
trial, and over $90,000 in that same time period on undefined “living expenses”;
 The court valued Wife’s interest in Park Place at $76,710 (adopting Wife’s expert’s
proposed valuation, as opposed to Husband’s expert, who put the value of her
interest in the business at over $400,000).
 The court awarded Wife $78,000 to account for Husband’s decision to finance the
purchase of a home for his daughter with proceeds from his IRA/Retirement
account, and nearly $132,000 “as an adjustment of the equities between the parties”
(which the court backed up with a chart explaining its rationale);
 The court awarded indefinite alimony to Wife of $4,500 per month;
 The court ordered Husband to pay child support of $4,927 per month; and
 The court awarded attorney’s fees to Wife in the amount of $65,000.
9
Husband filed a Motion to Reopen the Case, along with a Motion to Alter or Amend.
The court denied both on November 18, 2013. Husband filed a timely Notice of Appeal on
December 9, 2013, and Wife filed a cross-appeal on December 13, 2013.
II. DISCUSSION
Husband attacks the circuit court’s first- and second-level findings of fact and
conclusions of law. The standard of review differs for these varied conclusions, and we
look at the decisions through different lenses depending on their character. But overall,
Husband attacks the trial court’s decisions—from the character of the UBS payments to its
broader decision to award indefinite alimony—as punitive rather than grounded in fact,
and that theme runs through his whole brief. 6 We disagree. As Husband contends, it would
6
Husband raises the following specific questions on appeal:
I. Did the court err when it failed to consider the significant debt
of more than $1.2 million dollars that husband had at the time
of trial and instead declared this debt was “income/marital
assets” despite the uncontradicted evidence at trial that this
debt existed and was analogous to unvested assets?
II. Did the court abuse its discretion in granting Wife indefinite
alimony when the testimony and evidence showed that
Husband had no ability to pay alimony, Wife was self-
supporting, Wife failed to prove an unconscionable disparity
in standards of living if alimony was not awarded, the court
focused on a period six months prior to separation to determine
the parties’ pre-separation “standard of living” based on debt,
and in light of the two monetary awards and other property
transferred to Wife?
10
have been improper for the court to award indefinite alimony as punishment for how he
behaved over the course of the marriage. But that is not what happened; instead the court
made credibility findings that it then used to support its legal conclusions.
Specifically, the court found Husband’s testimony not to be credible in a number of
areas: first, his lifestyle (both when he was married and after the separation); second, his
role in Park Place and the limited success of the bar; and third, his assertions that the UBS
payments constituted loans that Husband never considered income. The court’s view of
Husband’s credibility in all those areas necessarily, and appropriately, affected its
conclusions (and therefore we recount Husband’s testimony in those areas in some detail
here and above). Because the court’s factual findings were not clearly erroneous, and
because its disposition of the case—including those issues raised in Wife’s cross-appeal—
fell within the bounds of the circuit court’s discretion, we affirm.
III. Did the court err when it failed to find a constructive/resulting
trust for Husband’s interest in the bar when all funds came
from loans Husband was solely responsible for, Husband was
the party who worked to rehab the bar and hire personnel and
the testimony supported the parties’ intention that Husband
own the bar?
IV. Did the Court err when it found Husband in contempt in the
absence of any intent by Husband to violate a court order and
failed to credit Husband for the $9,827.63 which Husband
could not pay from the agreed upon account when Wife’s sole
debt and failure to pay her credit card resulted in UBS
garnishing that amount from the account?
11
A. The Trial Court Did Not Abuse Its Discretion When It Awarded
Wife Indefinite Alimony.
Maryland’s statutory scheme favors fixed-term, “rehabilitative” alimony rather
than indefinite alimony. See Blaine v. Blaine, 336 Md. 49, 68 (1994). But a court may
award indefinite alimony in two different circumstances, one of which is at issue here:
where, “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).
We review indefinite alimony awards at more than one level. First, we review the
trial court’s findings of fact as to questions such as what a party’s income is (referred to as
“first-level” facts) and reverse them only if clearly erroneous. Wenger v. Wenger, 42 Md.
App. 596, 607 (1979). Second, while the question of whether the standards of living
between spouses will be unconscionably disparate is a factual one as well, Whittington v.
Whittington, 172 Md. App. 317, 337 (2007), it is not a “first-level” fact:
It is a second-level fact . . . that necessarily rests upon the
court’s first-level factual findings on the factors [in FL § 11-
106(b)] that . . . are relevant to all alimony determinations, and
“all the factors . . . necessary for a fair and equitable award”;
and upon how much weight the court chooses to give to its
various first-level factual findings.
Id. at 337-38 (quoting FL §11-106(b)). Whether or not economic disparity will exist in the
future requires the trial court to “projec[t] forward in time to the point when the requesting
spouse will have made maximum financial progress, and compar[e] the relative standards
of living of the parties at that future time.” Francz v. Francz, 157 Md. App. 676, 692 (2004)
12
(citing Roginsky, 129 Md. App. at 146); see also Blaine, 336 Md. at 64 (noting that the
statutory language “in effect requir[es] . . . the court [to] make a prediction as to the success
of the dependent spouse’s efforts to become self-sufficient”).
A mathematical disparity, standing alone, does not mandate indefinite alimony—
the FL § 11-106(b) factors drive the analysis. Ware v. Ware, 131 Md. App. 207, 232 (2000).
“The interplay of those factors may frequently have a strong bearing on whether a particular
disparity can fairly be found to be an unconscionable disparity.” Id. at 232-33; see also
Innerbichler v. Innerbichler, 132 Md. App. 207, 248 (2000) (affirming indefinite alimony
award, noting that “unconscionable equitable disparity is more than a numerical
calculation” (citing Ware, 131 Md. App. at 229), and affirming trial court’s “careful
analysis of the various equitable considerations”). The factors cover a wide range of
considerations about the parties and their earning capacity:
(1) the ability of the party seeking alimony to be wholly or
partly self-supporting;
(2) the time necessary for the party seeking alimony to gain
sufficient education or training to enable that party to find
suitable employment;
(3) the standard of living that the parties established during
their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party
to the well-being of the family;
(6) the circumstances that contributed to the estrangement of
the parties;
13
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to
meet that party's needs while meeting the needs of the party
seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party,
including:
(i) all income and assets, including property that
does not produce income;
(ii) any award made under §§ 8-205 and 8-
208 of this article;
(iii) the nature and amount of the financial
obligations of each party; and
(iv) the right of each party to receive retirement
benefits; and
(12) [other considerations not relevant here.]
FL § 11-106(b).
Husband attacks several parts of the court’s decision on indefinite alimony, and we
organize his complaints slightly differently than he did in his brief. We look first at whether
the trial court’s finding that the UBS payments were not loans but actually incentive
bonuses was clearly erroneous; second, whether the court erred in finding (as part of its
examination of the FL § 11-106(b) factors) that Wife was partially self-supporting and that
Husband had the ability to pay alimony, and whether it examined the correct standard of
living; and third, whether the court abused its discretion in finding an unconscionable
14
disparity, which supported the ultimate decision to award indefinite alimony under § 11-
106(c).
1. The trial court’s characterization of the UBS payments.
Husband contends that the trial court erred in finding that the UBS payments
constituted marital property rather than a loan. He claims specifically that UBS
characterized the payments as loans, and that portions of the loan would only be forgiven
if he continued to work at UBS. He points to Schedule F, which he introduced at trial, as
demonstrating that 77 percent of the UBS loan paid to him as of the date the parties
separated ($1.67 million) remained outstanding ($1,286,720). That is, he had yet to pay
back this money, and in his view, it does not constitute marital property because he will
not actually acquire ownership of those funds until the entirety of the loan is forgiven,
something that would not happen until November 2019, and only then if he remains
employed by UBS. He complains that the court simply did not believe him, and from there
the court’s characterizations of the UBS payments were clearly erroneous.
Wife counters that whatever label attaches to the UBS payments, the fact is that
UBS paid Husband “over $2.2 million between November 2010 and February 2013,” and
that the payments were structured for tax purposes. She also points out that the trial court’s
findings regarding Husband’s income were bolstered by the fact that he earned additional
income above and beyond the UBS payments—for example, his paystub from July 2013
reflected that he earned over $238,000 in the first half of that year.
15
The trial court did not err when it characterized the UBS payments as income. The
court became keenly aware of the unusual circumstances surrounding this unusually large
payment and its complicated structure, and considered the testimony of Husband’s experts,
but also looked through that testimony to conclude that the payments really served as an
incentive rather than a loan:
This case presents a special issue of how to treat the extra or
additional income received by [Husband] with his work at
UBS. After the testimony of the parties and both parties’
experts, it is the Court’s opinion that these payments are in fact
“bonuses” or “incentive payments” and should therefore be
treated as an asset. [Husband’s] own expert, Mr. Estabrook,
stated that [Husband’s] so-called “loan” is “forgiven for
services rendered” each year. Furthermore, after review of the
relevant documents and testimony, the Court is aware that the
actual amount of money [Husband] owes under the terms of
the “Promissory Note” is actually offset by the amount he
receives on a concurrent date under the relevant “Transition
Agreement,” which includes the accrued interest. Under the
terms of the Transition Agreement, UBS actually pays
[Husband] an amount to cover both the “loan” payment and the
applicable interest that is owed on such payments on the date
it becomes due. . . . [Husband] is therefore paid to pay back
the loan, and does not expend anything out of his own funds,
except the taxes on the year the transition payment is received.
[Husband] himself stated that “we always lived off the loan,”
indicating that the parties used it as a source of income.
(Emphasis added.)
Husband claims that the trial judge erred in not crediting his version of the loan, and
that the judge “made it clear he did not believe a thing that Husband said.” But this was the
trial court’s prerogative. Husband presented an expert who attempted to establish that the
loans were “debts,” but the court was free to discount his testimony or not to credit it at all.
16
Walker v. Grow, 170 Md. App. 255, 275 (2006) (“The weight to be given the expert’s
testimony is a question for the fact finder.”) We agree with Husband that “only assets
acquired during the marriage are marital.” FL §8-201(e)(1). But we disagree with his claim
that under Harper v. Harper, 294 Md. 54 (1982), he “obtained possession of the . . . loan
during the marriage, [but] did not acquire ownership in that portion of the funds until the
anniversary date over the next nine years.” Nor does the label UBS and Husband put on
the payments compel us to override the circuit court’s findings, particularly when Husband
and Wife did not just “possess,” but actually spent the proceeds during the marriage, a
reality that characterizing them as loans would ignore.7
Husband also cites McCleary v. McCleary, 150 Md. App. 448 (2002), a case in
which the husband incurred significant debt during the marriage and argued that the trial
court’s marital property award (of more than $2 million) failed to account for his negative
net worth. We reversed, reasoning that the court had, in fact, failed to consider the
husband’s $4.6 million liability to his former company, and also did not account for over
$1 million in tax liability. Id. at 459-60. Husband argues that McCleary should have
7
In Harper, the Court of Appeals held (in connection with real property, but the definition
applies equally here) that the term “acquired” in the statute means that “characterization of
property as nonmarital or marital depends upon the source of each contribution as payments
are made, rather than the time at which legal or equitable title to or possession of the
property is obtained.” Harper v. Harper, 294 Md. 54, 80 (1982). But again, adopting
Husband’s argument would require us to supersede the trial court’s factual findings with a
finding of our own that some part of the UBS payments did not constitute non-marital
property, a leap we decline to make.
17
compelled the trial judge here to “recognize . . . Husband’s debt,” which in turn would have
led the trial court to conclude, “as the [Court of Special Appeals] did in McCleary, that
[Husband] was insolvent and had a negative net worth.” But Husband oversimplifies that
case and skips an essential analytical step: in McCleary, the husband had introduced
specific evidence of indebtedness. Here, on the other hand, the arrangement has a very
different structure, and the Letter of Agreement specifically contemplates that UBS will
forgive the outstanding sums as Husband continues in his job (the record does not suggest,
nor does Husband argue, that he has any intention of leaving early). Unlike McCleary, the
character of Husband’s financial relationship with UBS was in dispute from the beginning,
and we disagree that the court abused its discretion in resolving those disputes as it did.
2. FL § 11-106 factors
Husband claims that the trial court reached incorrect conclusions about several of
the factors it was required to consider in the indefinite alimony equation. First, we disagree
that the court erred in concluding that Wife was only partially self-supporting (per § 11-
106(b)(1)). Although Husband attacks a number of the specific entries on Wife’s financial
statement, it is not our job to second-guess the circuit court’s fact-finding. And the court’s
reasoning was based not just on the financial statement, but also on Wife’s testimony about
the jobs that were reasonably available to her in her area of expertise. Husband attempts to
suggest that the court “accepted the fact that Wife was only working part-time (between
24 and 30 hours a week)” (emphasis in original), but that is not, in fact, what the court said.
The court explained that Wife “works approximately 32-25 hours per week (not including
18
the 16 hours per week she works at Severna Park Tap House, with no pay). Due to the
nature of her business, and the travel time and so forth, she is only able to bill
approximately 24 to 30 hours per week.” (Emphasis added.) The court hardly failed to “do
the math”: it simply saw the facts differently than Husband did. Indeed, even Husband’s
expert agreed that “nobody is capable of billing all of their hours. Everybody puts in
additional hours beyond the amount that they’re billing.”
The court also was free not to credit the claim by Husband’s expert, Steve Shedlin,
that Wife could make a net income of about $110,000 a year (or “obtain full time
employment for about $104,000.00 per year for 40 hours per week.)” The court pointed
out that Mr. Shedlin served as a vocational rehabilitative expert, and that his work “usually
involves assisting persons with disabilities to find full-time employment.”8 Mr. Shedlin
never interviewed Wife, and did not limit his research to Wife’s specific area of expertise.
Wife points out, too, that the trial court’s conclusion was not far off Mr. Shedlin’s
in any event, so to the extent the trial court might have made any mathematical errors (and
we do not agree that it did), they were harmless and had no effect on the bottom line. Mr.
Shedlin testified that Wife could earn in the range of $180,000 to $242,000 per year if she
8
Although Husband complains that the trial judge improperly believed “everything Wife
said,” and “stretched to give Wife every benefit of [the] doubt,” the trial judge’s role is to
assess the credibility of the parties. The court was not required to find Mr. Shedlin credible
merely because he was an expert; that finding, which we agree appeared often in the trial
court’s opinion, obviously affected how the court viewed the evidence and framed the
factual conclusions it reached.
19
were self-employed, but he also agreed on cross-examination that “if she works for
somebody else, she gets a job and she doesn’t go out and open up on her own and have to
incur all of her own expenses, she can make $110,000 a year.” He conceded that the
salaries for the jobs available to Wife fell in the range of $85,000 to $105,000. And this
backed up Wife’s testimony, and her exhibit from a website that she claimed was the “go-
to” website for finding jobs in her area, that she only had the ability to earn between
$85,000 and $104,000, the maximum earning capacity in her field. The trial court also
found Wife’s testimony about her billing rates “compelling.” We see no abuse of discretion
in the court’s decision to adopt an earnings figure for Wife in the lower end of the range
Husband’s expert proposed.
Second, we disagree with Husband that the court did not properly assess the parties’
standard of living during the marriage pursuant to FL § 11-106(b)(3). Although the court
may have muddied slightly the period of time it considered when establishing their standard
of living, this really bore on whether Husband dissipated assets, a question not before us.
The court supported its findings by citing numerous facts demonstrating that the parties
enjoyed a high standard of living during the marriage, not just by Husband after they
separated. The court specifically noted the purchase of the bar and a million-dollar home,
jewelry and other luxuries, and family vacations and entertainment expenses, and Wife’s
testimony was consistent with his in this regard. (She explained that when she and
Husband were married, “[w]e weren’t really wanting for anything. We got to go to
20
[restaurants] and basically wherever we wanted.”) We will not disturb these first-level
factual findings on appeal absent clear error, and we perceive none.
Finally, the court did not err when it disagreed with Husband’s (purely factual)
claim that he lacked the ability to pay alimony under FL § 11-106(b)(9). Again, Husband’s
expenditure of $90,000 for undefined “living expenses” over the six months preceding trial
was relevant primarily to the question of whether he dissipated marital assets. But those
payments also bore on whether he had an ability to pay alimony, and the fact that he could
not account for that much money over a six-month period gave the court more than
adequate reason to believe that he could have paid, but chose not to.
Husband also is incorrect that the trial court inappropriately awarded alimony as a
punitive measure. See Strawhorn v. Strawhorn, 49 Md. App. 649, 657 (1981) (“Even
though culpability can be considered in the granting or denying of alimony, alimony cannot
be awarded strictly as a punitive measure.”), vacated on other grounds, 294 Md. 322
(1982). Even in Strawhorn, we reiterated that “[t]he fault that destroyed the marital
relationship can be considered [as an element of an award] when it affects the economic
needs of the party seeking alimony,” id. (citing Kingsley v. Kingsley, 45 Md. App. 199, 209
(1980)), and that is all the court did here. Wife testified, for example, that she had no
interest in purchasing the bar that ultimately became not just a source of marital discord,
but a significant drain on their finances. The court acted well within its discretion in finding
that Husband was the driving force behind that decision and more responsible for its
impact, and that he was at fault in many other ways for the relationship’s breakdown. These
21
decisions might have had a detrimental effect (in Husband’s view) on the overall outcome,
but the court’s reasons were appropriate under the law (not least because Husband’s
inability to pay was caused by his own failure to set aside any part of the UBS payments
for even the short-term future).
3. The court did not err in finding an unconscionable
disparity.
Husband claims that “[t]he evidence is glaring that should [Husband] stop working
for UBS, he would be obligated to repay all of the sums received from the date his
employment ceased through the end of the term of the loan.” We review the finding of
unconscionable disparity as a question of fact and under a clearly erroneous standard.
Maryland Rule 8-131(c). Then, we review the decision to award indefinite alimony under
an abuse of discretion standard. Roginsky v. Blake-Roginsky, 129 Md. App. 132, 143
(1999).
The court based its decision to award indefinite alimony here not just on the UBS
payments, but on other factors under FL § 11-106(b) that Husband fails to mention. First,
as to whether Wife could become self-supporting (FL § 11-106(b)(2)), the record supports
the court’s finding that Wife could not gain more education or training to allow her to enter
a more lucrative profession without sacrificing her current profession: “Obtaining these
additional certifications or ongoing continued education programs, however, will come at
a cost to her. In addition, as a business owner, she would be required to take time off from
work in order to go forward with any of these certification or continuing education
22
programs, which would cause her to lose additional salary, on top of the out-of-pocket costs
for such classes or programs.”
Second, as to the parties’ “contributions to the well-being of the family,” (FL § 11-
106(b)(5)), while both parties contributed to the marriage by working, they agreed at trial
that Wife had assumed primary responsibility for helping the children with homework,
taking them to after-school activities, and generally tending to their day-to-day needs. The
court pointed out that Husband did coach some of the children’s sports teams, but also
noted Wife’s testimony that Husband “often stayed out late, liked to party and drink and
sometimes would not come home”–behavior that played a major role in the relationship’s
breakdown.
Third, as to the “circumstances that contributed to the estrangement of the parties,”
(FL § 11-106(b)(6)), the court blamed Husband for the deterioration of the marriage, both
generally and as it examined this factor in the context of indefinite alimony. Although
Husband obviously disagrees, this is a factual finding that was supported by the record and
that was not clearly erroneous. The court noted Husband’s “history of inappropriate
interactions with other women,” and the confrontation in February of 2006 that led to the
first separation. The court summed it up well:
Although multiple witnesses testified to the tumultuous
relationship of the parties throughout the years, the testimony
of both parties and other witnesses leads this Court to believe
that the nature of this “volatile” relationship was mainly due to
[Husband’s] inappropriate behavior throughout the duration of
the marriage. Therefore, it is appropriate for the Court to draw
23
the inference that [Husband’s] behavior was what ultimately
led to the break-up of the marriage.
The court also pointed to the fact that Wife had no opportunity to save for retirement,
whereas Husband had “a valuable deferred compensation plan, retirement and pensions
benefits and stock options through his employment at UBS.” The court took into account
numerous factors in concluding that “equity and justice and [Wife’s] financial needs make
her a candidate for alimony,” and the trial court properly considered and weighed the
indefinite alimony factors.
B. Husband Did Not Ask The Trial Court To Find A Constructive
Trust.
Husband claims that he asked the trial court to create a “constructive trust” for him
in the bar as an equitable solution to what he views as Wife’s unfair majority ownership in
Park Place. He claims that, as a matter of fact, he funded the purchase of the bar, did the
work to refurbish it, and that he should reap the benefits of ownership. We agree with
Wife, though, that Husband waived this argument early in the trial (if it was properly before
the circuit court at all). At the beginning of his opening statement, counsel for Husband
raised the issue of a constructive trust, but he did not actually ask the court to do anything
in connection with it:
Your Honor, before we begin, . . . [f]irst of all, as the Court
may have been aware of from reviewing the file, there was a
separate lawsuit that my client had filed against [Wife],
seeking the Court to establish a constructive trust of the LLC
interests that are in dispute in this case. It was denied recently
by [a different judge.] We just wanted to for the record object
to that. We believe that the basis that we set forth in that
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original motion asking the Court to consolidate that case with
this case is appropriate. So if the Court would like any further
on that or I can prepare to move on, as well. I just want it
known for the record that we are objecting to the Court’s denial
of the consolidation with the constructive trust case with the
divorce.
Wife’s counsel replied that the issue had been decided by another judge, in a ruling that
the trial judge hearing the divorce proceeding did not have “any right to reconsider,” and
Husband had not filed a motion to reconsider in the other case. Wife’s counsel replied that
“[Husband] may not like it, but until they file a motion to reconsider with the Court—an
appeal or something like that, the ruling stands,” and Husband’s counsel conceded the
point: “Understood, Your Honor. I wanted to put that on the record. That’s all.”
We do not really see the purpose of counsel simply putting this on the record, and
if anything his specific mention of it, without actually seeking the remedy of a constructive
trust, effectively waived the issue. 9 Moreover, although Husband did ask the court to
award him 77% of the property under the marital award, that was a different request and
one that the court adequately considered.
Even if we were to consider the argument, though, Husband would lose on the
merits. He cites Gosman v. Gosman, 271 Md. 514, 517-18 (1974), but overlooks an
important and distinguishing factor: there, as even Husband concedes, “the parties had no
9
That another judge had already denied Husband the remedy he seeks here suggests that
res judicata might bar the trial court from considering the issue, too, but that question has
not been raised before us.
25
written agreement as to their ownership interest” in the disputed property. Here, on the
other hand, the Park Place LLC agreement (that Wife only entered into reluctantly, and at
Husband’s behest) affirmatively vested majority ownership in her in order to circumvent
ethical limitations imposed by Husband’s employer. We find it inappropriate to look to
extrinsic evidence for the purposes of (a) establishing an “intent” that contradicts the
unambiguous documents, and (b) giving Husband the benefit, via court order in an
equitable proceeding, of a financial relationship he could not ethically have entered.10
C. The Trial Court Properly Found Husband In Contempt For
Failing To Pay Child Support.
In February 2013, Husband received a payment from UBS totaling $600,000. Wife
testified that despite receiving this money, Husband had not kept current with his child
support payments and was $11,064 in arrears at the time of trial. The court agreed, and
found Husband in contempt of the parties’ consent order. Husband appeals that decision,
10
Husband’s citation to Levin v. Levin, 43 Md. App. 380 (1979), likewise fails to help him.
There, we held that where a couple had invested jointly in a liquor store, but only the
husband’s name appeared on the lease, the wife could still share in the benefits of
ownership by way of a “resulting trust.” We explained that a “resulting trust is an implied
trust which rests upon the presumed intention of the parties,” and that a trial court can
effectively create such a trust when one party furnishes consideration, but the other takes
legal title, “provided the circumstances surrounding the transaction do not demonstrate a
contrary intention by the parties.” Id. at 387. But the court pointed out not only the heavy
burden borne by a party seeking to establish a resulting trust, but also reiterated that the
question for the chancellor there (the fact-finding equivalent of the trial court here) was a
factual one: “We must accept the chancellor’s findings of fact unless they are clearly
erroneous,” and “[t]he credibility of the witnesses was for him to determine.” Id. at 386.
So Levin’s applicability depends entirely on factual findings that, in this case, do not
support Husband’s argument.
26
arguing that he had already made the payment by depositing it into an account the parties
had designated for child support payments, but that Wife’s failure to pay a credit card led
the creditor (UBS) to take money out of the account directly.
Again, this finding was entirely one of fact, and we do not disturb the trial judge’s
decision unless clearly erroneous. The court explained its reasoning: Husband had been
ordered to pay Wife a total of $56,000 in child support under the consent order,
representing four months of arrears and advance support payments for December 2012
through March 2013. Wife testified that Husband still owed over $11,000. Husband argued
that UBS had automatically removed nearly $10,000 from a credit card account where
Husband had placed the support payment, and that he should not be punished by having to
“double-pay,” when Wife was at fault.
Husband’s position at trial, and here, suggests a certain arrogance that may well
have come through to the trial court, given its credibility findings. It is not up to Husband
to determine whether a garnishment by a third party constitutes a payment of his child
support obligations, when the Consent Order required that he pay child support directly to
Wife. We will not substitute our own judgment for that of the trial court.
D. We Will Not Consider Issues Raised For The First Time In
Husband’s Reply Brief.
In response to Wife’s eighteen-page merits brief, Husband submitted a twenty-seven
page reply brief in which he not only attempted to rebut Wife’s responses to his issues on
appeal, but also raised new issues that we will not consider here. The purpose of a reply
27
brief is to reply within the boundaries established by first, the appellant’s brief and then,
more narrowly, the appellee’s brief. See Federal Land Bank of Baltimore, Inc. v. Esham,
43 Md. App. 446, 459-60 (1979) (“The reply brief must do what it purports to do: it must
respond to the points raised in the appellee’s brief which, in turn, are addressed to the issues
originally raised by the appellant.”). Here, though, Husband newly attacked the court’s
finding that he dissipated marital assets and, for the first time, disputed the trial court’s
calculations in that regard. He did the same thing when he claimed that the trial court “erred
in valuing various assets used in its monetary award calculation,” and in attempting to
revive factual questions about litigation between Park Place and the Verizon Center about
the alleged purchase of a skybox, especially when he attached documentation that did not
appear in the trial court here (which, incidentally, would have been equally improper if it
had been attached to his original brief). He mounted a new challenge to the trial court’s
transfer of a Porsche to Wife. And he argued that the child support award is incorrect for
the additional reason that Wife made misrepresentations on her financial statement
regarding claimed expenses for the couple’s daughter.
None of these arguments appeared in Husband’s opening brief, which raised narrow
appellate questions about the character of the UBS payments, the award of indefinite
alimony, and the contempt finding. Had we reversed or vacated the trial court’s decisions
on any of those issues, that decision would have required us to vacate the court’s other
financial decisions. But we are affirming the trial court’s findings on the issues Husband
28
properly challenged, and we will not disturb any other parts of the court’s opinion, least of
all the parts that Husband did not attack until too late in the game.
E. Wife’s Cross-Appeal
Wife filed a cross-appeal in which she argues that the trial court erred when it used
the wrong figure for alimony on the child support guidelines worksheet. Of course, in an
“above-guidelines” case like this, the child support guidelines are advisory, and the trial
court specifically (and correctly) recognized that it had discretion to set child support and,
as courts often do in these situations, the court extrapolated a “possible child support level
consistent with [Husband’s] high income.” See FL § 12-204(d) (“If the combined adjusted
actual income exceeds the highest level specified in the [basic child support obligation]
schedule, the court may use its discretion in setting the amount of child support.”) The
court considered the children’s “economically privileged” circumstances in reaching an
ultimate figure of $4,927 per month. The change Wife seeks would have increased
Husband’s monthly payment by less than $200, and the need for these payments has been
eliminated by the only minor child’s eighteenth birthday on April 28, 2014. We decline to
disturb the court’s discretionary decision now.
JUDGMENT OF THE CIRCUIT COURT FOR
ANNE ARUNDEL COUNTY AFFIRMED. COSTS
TO BE PAID BY APPELLANT.
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