Simonds v. Simonds

Concurring Opinion by

ADKINS, J.

I join in Chief Judge Murphy’s opinion fully. I write separately only to supplement that opinion with my view of the appropriate application of FL section 11-106 by trial courts and appellate review thereof.

As Chief Judge Murphy discusses, section 11-106 establishes a multi-factored test for determining “the amount of and period for an award of alimony.” Id. These factors are equitable considerations that the court must consider in order to arrive at a “fair and equitable award.” Id. In 1992, the Court of Appeals emphasized the importance of an equitable result, and that the term “unconscionably disparate” is an equitable concept:

We have previously defined the purpose of the statute as providing for an appropriate degree of spousal support in the form of alimony after the dissolution of a marriage. In regard to the appropriateness of such support, the statute itself requires that the trial court weigh all factors relevant to a “fair and equitable award.” The statute elsewhere invokes the equitable concept of unconscionably disparate standards of living. Section 11-106(c)(2). Its sister provision governing the extension of an alimony period permits the court to act to avoid “a harsh and inequitable result.” Section ll-107(a)(l). We conclude from these provisions that the paramount goal of the legislature was to create a *618statutory mechanism leading to equitably sound alimony determinations by judges.

Tracey v. Tracey, 328 Md. 380, 388, 614 A.2d 590 (1992).

The statute is clear on its face that the circuit court judges must apply the considerations set forth in section 11-106(b), rather than relying solely on their own gut instincts or personal beliefs about alimony. See FL § ll-106(b)(‘Tn making the determination [of the amount of and the period for an award of alimony], the court shall consider all the factors for a fair and equitable award, including [the twelve enumerated factors]”).

Referring to the section ll-106(b) requirement that a “trial court must evaluate and compare their respective living standards as a separate step in making its judgment,” the Tracey Court approved Rogers v. Rogers, 80 Md.App. 575, 588-92, 565 A.2d 361 (1989), as an opinion that offered a “correc[t] interpretation oí] this nuance of § ll-106(c)(2).” Tracey, 328 Md. at 393 n. 4, 614 A.2d 590. In Rogers a “denial of alimony [was] reversed with directions to consider [the] imbalance between [the] wife’s highest salary of $17,500 and [the] husband’s income of $115,000 plus bonuses.” Id.

The Rogers Court also made it clear that a circuit court does not have a completely free rein in its factual determination of unconscionable disparity. In reversing the circuit court’s denial of alimony, it said:

On the basis of the record in this case ... we see no logical reason for denying alimony. Neither party was found to be at fault; the divorce was granted on the non-culpable grounds of two years separation. It would seem, therefore, that a gross disparity in income, which ordinarily translates into a gross disparity in standards of living, would be an unconscionable disparity.

Id. at 591, 565 A.2d 361.

It is often the case that when a trial court considers an alimony award, it will set forth each of the twelve factors in section ll-106(b), and fill in the facts applicable to those factors. What is often missing, though, is any explanation *619about how the court evaluated those equitable factors in arriving at its decision whether there was an unconscionable disparity between the parties’ lifestyles after divorce. While trial judges are not required to set forth all of their reasoning, their failure to give reasons makes appellate review difficult, if not impossible, and the latter alone can be cause for reversal. See Kelly v. Kelly, 153 Md.App. 260, 279, 836 A.2d 695 (2003)(“[W]hen indefinite alimony is denied and [a gross] disparity [of income] exists, it is error to deny the request without explicitly discussing the disparity issue”).

The Court of Appeals has determined that a decision on “unconscionable disparity” is a factual one. See Solomon v. Solomon, 383 Md. 176, 202, 857 A.2d 1109 (2004). Yet, in reaching this factual conclusion, the court must take into account all of the 11-106(b) factors. In other words, the equitable factors of 11-106(b) must drive the determination of whether a disparity in living standards after divorce is “unconscionable.” 14 This means that there has to be consistency between the 11 — 106(b) factors and the trial court’s ultimate factual determination of “unconscionable disparity.” 15

In my view, requiring such consistency results in more predictability in divorce cases, which promotes settlement and early resolution of disputes. When members of the family law bar know that trial judges are going to make (or not make) an alimony award based on the statutory factors, they are in a better position to forecast the result in an upcoming case, using those factors, and thereby knowledgeably encourage their clients to settle within that range.

In this case, the circuit court found a “substantial disparity” between the parties’ incomes. It said nothing about whether that disparity is unconscionable, and did not mention section ll-106(b). In its marital property analysis under FL section *6208-205, the court found that appellant contributed non'-monetarily, and appellee contributed financially to the marriage, that the marriage lasted over 22 years, that the parties are 45 and 46 respectively, and that “ultimately it was [appellee’s] infidelity that led to the demise” of the marriage. But it said nothing about these factors when making its three-year alimony award except to mention appellant’s “young age” and “employment skills.” 16

When considering duration of marriage in the divorce context, a 22-year marriage is long, and a spouse’s non-monetary contributions over 22 years carry significant weight in equitable terms. As the American Law Institute has reported, “[e]conomic studies demonstrate that responsibility for the care of children ordinarily has a significant continuing impact on parental earning capacity.” Principles of the Lato, of Family Dissolution: Analysis and Recommendations § 5.5, p. 887 (2000). When one spouse primarily shoulders that responsibility, not only does that undertaking reduce the income-earning capacity of the child-caring spouse, but it enhances the income-earning capacity of the parent without that load.

Both parents are legally responsible for the care and upbringing of their children. It is common knowledge that raising children is a time-consuming and energy-consuming (as well as heart-warming) project. When the “primary career parent” is able to work with single-minded dedication 40 to 65 hours a week, without the intrusions of the day-to-day tasks and events involved in child-rearing, that parent’s career simply has more chance to flourish.17 See Solomon, 883 Md. at 201, 857 A.2d 1109 (“the wife’s work in the home no doubt contributed to [the husband’s] success in building his profes*621sional career”)(also quoted by Judge Murphy); Rock v. Rock, 86 Md.App. 598, 614, 587 A.2d 1133 (1991).18 The hard work and monetary contributions of the “primary career spouse” are certainly highly important. When one parent assumes the “primary career” role, and the other assumes the “primary care-giver” role, the whole family can benefit while they are intact. But when divorce occurs, the “primary career parent” does not suffer as much monetary loss as the care-giver parent. The “primary career parent” leaves the marriage with both the priceless benefit of children, and the financial benefit of an intact career. The care-giving spouse has the priceless benefit of children, and a diminished earning capacity. The inequity of this situation should be included in the circuit court’s consideration on remand when deciding the question of alimony.

Finally, in identifying “the circumstances that contributed to the estrangement of the parties” as a factor in making an alimony decision under section 11-106, the legislature, I think, recognized that, notwithstanding the adoption of no-fault grounds for divorce, there are still contractual or promissory aspects of marriage. Indeed, from both legal and social perspectives, marriage is one of the most significant promises most people make in their lifetime. When one spouse primarily causes the failure of the marriage, that may be a breach of those contractual/promissory aspects, and the other spouse may be awarded alimony. The alimony can be seen as a form of damages that take into account her or his loss. This is not punishment. It is simply a recognition that there was a *622failure of reasonable expectations, and the determination of what is fair and equitable will be governed by considerations such as the length of the marriage, each spouse’s contributions to the family’s well-being, and the other equitable factors of section 11 — 106(b).

Along with the proliferation and social acceptance of divorce in our nation, has also come the notion that marital fault is less significant than it was in times past. I do not disagree with this notion at all. But I sense from some judicial opinions that those judges view it as so insignificant (and maybe archaic), that they almost read it out of the statute. This should not be done.

To be sure, it is often extremely difficult to make these so-called “fault” determinations. Relationships are complicated, and one misdeed begets another. In many cases, we cannot expect courts to unravel the many threads leading to the relationship demise. When the determination of whose conduct led to the demise of the marriage is too tangled, complicated, and vague for a court to assess, then factor (5) of section ll-106(b) will not play a role.

In other cases, however, the fault determination is obvious, or at least reasonably discernible. When that occurs, as it did here, then it must be one of the factors considered by the judge in making an alimony decision. In my view, the legislature’s decision to include the directive to do so in FL section ll-106(b) was wise because, as I suggested before, it is still reasonable for a person entering marriage to hold the expectation of a permanent relationship. When that reasonable expectation is disappointed, the “innocence” of one spouse is a factor that supports equitable relief in the form of alimony.

Here, the circuit court did make a determination that “ultimately it was [appellee’s] infidelity that led to the demise” of the marriage. But there is no hint in its language addressing its alimony decision that the circuit court took that fault into account at all. The court, rather, seemingly rested its decision solely on appellant’s “past employment skills,” and her “young age.” Her past employment skills have enabled *623her to get two part-time jobs, one at $12.50 per hour, and another at $20.00 per hour. At age 45, she is disadvantaged in the employment market where she must compete with more experienced persons who are her age, as well as younger, more energetic, and more recently trained applicants.

When appellant’s limited earning potential is combined with the long marriage, lack of fault on her part, fault on appellee’s part, the growth of appellee’s career success during the marriage, and his continuing high earnings in recent years, it is difficult to see how the circuit court weighed the 11-106(b) factors and failed to find unconscionably disparate standards of living. On remand, the court should articulate whether it perceives unconscionable disparity, and if not, why not.

. In this respect, a trial court’s conclusion as to "unconscionable disparity" also seems to have a discretionary aspect to it.

. A circuit court may consider other equitable factors not listed in 11-106(b). The trial court here, however, gave no indication that equitable factors other than those referenced in 11-106 influenced its decision.

. It simply said that "appellant's past employment skills, combined with her young age, will aid in her obtaining employment in the future.”

. There is no doubt that many families have successfully managed dual careers while successfully raising children. But it is a difficult path, and some families choose not to do so.

. The Rock Court found specific proof of loss of the wife’s lost career opportunities unnecessary. Responding to the husband’s “contenftion that] there [was] no evidence that Ms. Rock relinquished any career opportunities to further Mr. Rock's career, this Court said:

We find the suggestion in poor grace. While no finding was made on the subject and the issue was not raised at trial, when a parent leaves the work force to remain at home with children, as did Ms. Rock with Mr. Rock's son and their two daughters, that parent’s career is not advancing and reentry into the work force is far from easy.

Rock v. Rock, 86 Md.App. 598, 614, 587 A.2d 1133 (1991).