Blaine v. Blaine

BELL, Judge,

dissenting.

The majority today holds that, upon a motion for extension of rehabilitative alimony, i. e., alimony ordered for a definite period of time, a trial court may order indefinite alimony, where, since the divorce, the income of the payor former spouse has doubled and that of the payee former spouse has not kept pace. This is an extraordinary and unwarranted proposition, given the statutory scheme promulgated by the Legislature. In order to achieve that result, the majority reaches another extraordinary, and equally unwarranted, conclusion: “the failure of the formerly dependent spouse to reach an expected income level, with or without a concomitant increase in the income of the other spouse, is properly a ‘circumstance’ arising subsequent to the initial alimony award that would provide the basis for an indefinite extension of alimony.” Majority op. at 55. More important, as to the latter, as we have already indicated, the circumstance warranting consideration of the motion having been established, it is, in fact, the increase in the other spouse’s income against which the formerly dependent spouse’s circumstances are compared and on the basis of which it will be determined whether the respective standards of living of the parties are unconscionably disparate. I respectfully dissent.

*77The statutory scheme chosen by the Legislature makes clear that it contemplated that, ordinarily, an alimony award would be rehabilitative—for a fixed time—and designed to be a bridge between divorce and self-sufficiency by “providing] an opportunity for the recipient [spouse] to become self-supporting.” Report of the Governor’s Commission on Domestic Relations Laws (1980) at 2. See Maryland Code (1984, 1991 Repl.Vol.) §§ 11-106 & 107 of the Family Law Article. It is only after the statute refers to, and prescribes that, “[t]he court shall determine the amount of and the period for an award of alimony,” § ll-106(a)(l), and sets out the required considerations going into the determination of a fair and equitable award, § ll-106(b), that the statute even mentions an award of indefinite alimony. See § ll-106(c). And, even then, it makes clear that such an award may be made only if certain rather extraordinary circumstances are found by the court to exist. Id. It is in this context that section 11-107 provides for the extension of the period during which alimony is to be paid, § (a), and for the modification of the amount. § (b). This is consistent with the report of the Governor’s Commission, Commission Report at 4, upon which the statute is based. See Tracey v. Tracey, 328 Md. 380, 391-92, 614 A.2d 590, 596 (1992). It is also consistent with the decisions of this Court that have considered the issue. Tracey, supra, 328 Md. at 391, 614 A.2d at 596; Turrisi v. Sanzaro, 308 Md. 515, 524-25, 520 A.2d 1080, 1084-85 (1987); Kline v. Kline, 85 Md.App. 28, 51, 581 A.2d 1300, 1311, cert. denied, 322 Md. 240, 587 A.2d 246 (1991), appeal after remand, 93 Md.App. 696, 614 A.2d 984 (1992); Rosenberg v. Rosenberg, 64 Md.App. 487, 531-32, 497 A.2d 485, 507-08, cert. denied, 305 Md. 107, 501 A.2d 845 (1985); Holston v. Holston, 58 Md.App. 308, 321, 473 A.2d 459, 465-66 (1984), cert. denied, 300 Md. 484, 479 A.2d 372 (1984).1

*78Indeed, the statutes are clear and unambiguous, admitting of but one construction. It is well settled that the inquiry into the Legislature’s intention in enacting a statute begins, and ordinarily ends, with the words of the statute, Harris v. State, 331 Md. 137, 145, 626 A.2d 946, 950 (1993), considered, however, in light of the context, meaning “related statutes, pertinent legislative history and ‘other material that fairly bears on the ... fundamental issue of legislative purpose or goal....’” Popham v. State Farm Mutual Insurance Company, 333 Md. 136, 148, 634 A.2d 28, 34 (1993) (quoting GEICO v. Insurance Commissioner, 332 Md. 124, 131-32, 630 A.2d 713, 717 (1993)). Where the words of the statute are clear and unambiguous, it is ordinarily unnecessary to go further. State v. Thompson, 332 Md. 1, 7, 629 A.2d 731, 734 (1993); Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1991). Of course, when construing a statute, we give its words their ordinary and common meaning. Dickerson v. State, 324 Md. 163, 171, 596 A.2d 648, 652 (1991); Cunningham v. State, 318 Md. 182, 185, 567 A.2d 126, 127 (1989).

The majority does not disagree with these principles. It recognizes, at least implicitly, that the language of the statutes at issue is clear and unambiguous; however, it refuses to give *79effect to the plain meaning and unambiguous language of § 11-106, preferring to “look elsewhere to divine legislative intent.” Majority op. at 64. Thus, while acknowledging that the implication of the statutory scheme is that indefinite alimony must be made at the time of divorce, the majority purports to decline to apply language in rote fashion. Majority op. at 65.

Indefinite alimony and rehabilitative alimony are usually mutually exclusive; the award of one, as for example, rehabilitative alimony, necessarily precludes the award of the other for the same period.2 The requirement that the court determine the amount and duration of an alimony award, see § 11-106(a), pursuant to a bill of complaint for alimony or as part of a decree granting an annulment, a limited divorce or absolute divorce, see section ll-101(a), and consistent with the factors enumerated in section ll-106(b), forces the trial court to come to grips with which form of alimony most applies to the circumstances of the parties before the court. As we have seen, this is consistent with the overall statutory scheme. It is also consistent, more particularly, with the requirements of section 11—106(b) and (c).

Although the factors enumerated in section 11-106 pertain to the duration and the amount of the alimony award, some, i.e., “(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; ... (7) the age of each party; (8) the physical and mental condition of each party; [and] (9) the ability of the party from whom alimony is *80sought to meet that party’s needs while meeting the needs of the party seeking alimony,” are more directly addressed to the durational aspect. Of these, factors (1), (2) and (9) are of particular significance, factors (7) and (8) being merely an aspect of the other three. They involve, and require, the assessment and prediction of the needs of the formerly dependent spouse and the ability of the payor former spouse to meet those needs. This is to be done, as a threshold matter, since neither amount nor duration can be determined until, and unless, the goal to be achieved has already been defined. It is also for this reason that factor (3), “the standard of living that the parties established during their marriage,” is also important and instructive. Implicitly, requiring that determination to be made at the outset ensures that there is a standard against which the needs of the formerly dependent spouse and the ability of the payor former spouse to meet those needs can be measured. What the court seeks to do, for the benefit of both parties, is to approximate, as closely as possible, the standard of living that the parties enjoyed during the marriage. It then has to decide whether that standard can be attained by the formerly dependent spouse after the divorce. It makes that determination by assessing the effect of providing the formerly dependent spouse with the opportunity, where possible, to acquire skills or improve his or her education. If the court concludes that self-sufficiency can be achieved—the dependent party could maintain, on the basis of his or her own resources, roughly that standard the court has determined, based on the circumstances of the marriage and existing at the time of divorce, to which he or she has become accustomed—it orders rehabilitative alimony for the period necessary to its attainment. Where, however, the court determines that it is not possible for the dependent spouse to achieve that level of self-sufficiency on his or her own, it orders indefinite alimony, calculated in an amount which the payor spouse can pay and which most closely achieves the goal.

Section ll-106(c) thus provides for the. award of alimony for an indefinite period when “the party seeking alimony will have *81made as much progress toward becoming self-supporting as can reasonably be expected, [but] the respective standards of living of the parties will be [nevertheless] unconscionably disparate.” The decision to award indefinite alimony is not inconsistent with, or different in kind from, the threshold eligibility decision referenced in section 11—106(b); rather, the decision contemplated by section 11—106(c) is but an extension of that required by section 11—106(b), which requires simply a refinement of some of the subsection (b) considerations. Rather than some new consideration, it contemplates that the court will assess, first, the dependent former spouse’s ability to become wholly or partially self-sufficient and then whether, in light of the previously determined standard of living enjoyed by the parties during the marriage, that party can realistically achieve self-sufficiency without unconscionable disparity. Section ll-106(c), in short, requires the court to predict the future of the parties and to do so in light of its determination of the standard of living the parties enjoyed during the marriage. The prediction of the dependent former spouse’s future ability to achieve self-sufficiency takes the form of a prediction of his or her future standard of living which must be compared with that previously determined to have been enjoyed during the marriage.

Once the court decides which option—rehabilitative or indefinite alimony—to adopt, it follows that the option not chosen is rejected. The decision is final, which if not reversed on appeal, is binding on the parties and is not thereafter subject to reconsideration.

As we have seen, the majority recognizes that § 11—106(c) is phrased prospectively, but, it nevertheless concludes that it “may be applied retrospectively ... [to] support a conclusion that an extension [of alimony pursuant to § 11-107] is necessary to avoid a harsh and inequitable result upon a finding that there exists, at the time of the request for extension, an unconscionable disparity in the parties’ respective standards of living which would justify an award of indefinite alimony.” Majority op. at 64. To reach this conclusion, it ignores the plain language of the statute in favor of “other sources to *82divine legislative intent.” Majority op. at 65. Thus, it relies on the Governor’s Commission Report and its stated goal of vesting considerable discretion in the courts to fulfill the statute’s goal “to provide for an appropriate degree of spousal support in the form of alimony after the dissolution of the marriage.” Id. (quoting McAlear v. McAlear, 298 Md. 320, 348, 469 A.2d 1256, 1271 (1984)). It also relies upon the fact that several of the factors set out in section 11—106(b) are equitable in nature, the Commission’s recognition that indefinite alimony entitlement should be determined on a case-by-case basis, this Court’s recognition in Tracey that section 11-106, consistent with the Governor’s Commission’s aims, sought to achieve judicial flexibility in the award of alimony, and our previous rejection of a mechanical application of a statute which would limit the discretion of the court to fashion an appropriate award. Majority op. at 66-67.

The achievement of equity and flexibility is not furthered by permitting the trial court, on the petition of a formerly dependent spouse pursuant to § 11-107, to revisit the duration of alimony issue long after it has determined that the appropriate form of alimony is rehabilitative. The legislative scheme, consistent with that proposed by the Governor’s Commission, provides all of the flexibility and equity necessary. Just as important, it provides that flexibility and equity at the threshold—at the point where the court must decide between rehabilitative and indefinite alimony. Moreover fairness and equity are not compromised by confining the option to that stage. When the trial judge’s prediction is proven, factually, to have been inaccurate—that rehabilitation cannot be achieved in the time predicted—section 11-107 affords the trial judge the means and opportunity to correct it. It does so by permitting the court, upon a showing that it would otherwise be a harsh and inequitable result, to extend the period of time in which the formerly dependent spouse’s rehabilitation is to occur.

Section 11-107, by its very terms, and as indicated by its place in the statutory scheme was never intended to be a mechanism whereby the court is enabled to reverse a judg*83ment previously made, final when made, and not appealed or, if appealed, not reversed on appeal. In other words, § 11-107 was never intended to provide the formerly dependent spouse with a second opportunity to prove what he or she was unable to prove the first time—that he or she is entitled to indefinite alimony. See Thomasian v. Thomasian, 79 Md.App. 188, 195, 556 A.2d 675, 678 (1989). But that is precisely what the majority opinion allows and, indeed, encourages.

Under the majority’s holding, the goal of the Governor’s Commission, to restructure alimony so that it is not a lifetime pension, is thwarted. By permitting a party to establish that the trial court’s prediction that rehabilitative alimony was required in a given case was not accurate, what started out as rehabilitative alimony not only can, but in subsequent cases will, become a lifetime pension. Just as disturbing is the fact that the predicate for that lifetime pension will not be the standard of living of the parties during the marriage, as measured by the wealth they amassed during the marriage, but the post-marriage fortunes of the payor former spouse. Under the majority’s holding, it would be appropriate for the trial judge to award alimony for an indefinite time if the payor former spouse were to hit the lottery, settle a lawsuit involving personal injury resulting from an accident occurring subsequent to divorce, inherit funds after the divorce, or, as in this case, increase his or her earnings significantly. It is my understanding that the alimony laws were designed to distribute equitably, among the parties, the fruits of the marriage and to ensure, as much as possible that the dependent spouse not slip too far below the standard of living that he or she helped to establish and not to redistribute the gains of one of the parties, made subsequent to and, perhaps, fortuitously after, the divorce.

Moreover, under the majority’s view, there is little incentive for the dependent spouse to seek to become self-sufficient; indeed, there may be a disincentive. So long as the payor former spouse is doing well or can be expected to do well, the dependent former spouse would be well advised not to reach maximum self-sufficiency; he or she, under this opinion, would *84be wise to avoid achieving maximum self-sufficiency because if he or she does not and the other party increases his or her income significantly, then a sufficient change in circumstances will have occurred and the court’s discretion to award indefinite alimony again will be engaged.

CHASANOW, J., joins in the views expressed herein.

. The Report of the Governor’s Commission on Domestic Relations Laws (1980) summarized its position with respect to alimony, as follows:

With respect to the period of time that should be provided for the payment of alimony, the Commission has chosen the following ap*78proach as best meeting the requirements of fairness, definiteness, and facility of administration:
(a) The award of alimony in the ordinary case should be for a specific time, and that time should be stated in the Order or Decree making the award. Preferably, that time should be fixed in relation to a specified program or goal on the part of the recipient party that will lead to self-sufficiency before that time.
(b) The court should have the power to extend that time, under certain circumstances, to avoid a harsh and inequitable result.
The Commission believes that a fixed time, at the end of which the parties’ financial ties in regard to alimony would "self destruct,” has the merits of (1) letting the parties know immediately where they stand, (2) stimulating the parties and the Court to consider the problem of attaining self-sufficiency in time to act to resolve them, and (3) avoiding the need for further Court appearances and additional litigation. For those extraordinary situations, where the time imposed by the Court is insufficient without the fault or responsibility of the recipient party, there would remain power in the Court to review the situation and act on the basis of that review.

Id. at 4.

. This is not a case in which the trial court predicts that, ultimately, indefinite alimony will be required, but recognizes that the achievement of maximum self-sufficiency requires that a greater amount of alimony be paid initially, and so structures the indefinite alimony, albeit calling it first, rehabilitative and, then, indefinite, in order to achieve that result. See Coviello v. Coviello, 91 Md.App. 638, 605 A.2d 661 (1992). Such an approach is not, however, necessarily inconsistent with the approach that I take in this case.