An Alimony Case Decided in 2016

This case was decided by the Court of Special Appeals of Maryland in 2016. The citation number is 228 Md.App.163, 137 A.332. The parties married in 1994. Wife was employed for a surety company and her position was an assistant branch manager. Her salary was $45k a year. In 1995, she stopped working when her first child was born, a girl. In 1997, another girl was born. The wife was a primary caregiver for her daughters.

Husband was the sole wage earner for the family for the most part of the marriage. Initially, husband earned less than wife, but as time went by, he earned more. Husband attached management level at his company. The parties did not save any money, but spent almost all of the money. They spent a lot on their home, and they nearly lost it due to foreclosure. However, wife did not work. Eventually, husband sold the marital home to the mortgagor. The mortgagor agreed to rent it back to the family for two years. The family then purchased the home again at a much higher price. In 2010, husband was late in his mortgage payments. Husband did a modification with the lender which permitted his to make payments at a temporary two percent interest rate with a substantially yearly increase since March 2015.

Wife had cancer where she was subject to bone marrow extraction and chemotherapy. Husband did not care much about wife’s medical needs and was not supportive about wife’s medical care. Husband cheated on wife in 2011. Husband was spending overnights with another woman. Wife found out and parties separated. Husband left the family home.

Husband requested an absolute divorce in 2013. He requested shared physical custody of the children and sole legal custody. Wife also requested an absolute divorce. She sought for primary physical custody and sole legal custody of the children as well as equitable division of marital property, child support, alimony, family-use personal property, and possession of the family home, and counsel fees.

After the Magistrate ruled, Wife granted Wife use and possession of the marital home and Husband to pay $2,850 a month which is the entire mortgage. The Magistrate also ordered that Husband to pay child support for the children and alimony for the wife.

The lower court imputed an income to Wife for her child support and alimony claim. Wife claims the lower court erred claiming that she can earn $1,733 a month. A party has to prove voluntary impoverishment in order to impute an income to a party. A parent’s income defined as if voluntary impoverishment can be proven, potential income of a parent; or if the parent is employed to full capacity, their actual income. Whenever a parent has made a conscious and free choice, not forced by facts within their control to say that they do not have adequate resources.

The trial court can consider any and facts needed for an equitable and fair award. To justify their reasoning to impute income to Wife, the court explained Wife earned $45,000 per year before did not work after 1995, and she earned a bachelor’s degree before the marriage. The lower court commented that Wife did not want to work because of their agreement. Wife testified that she had medical problems due to her cancer. However, she has not provided any medical testimony to support it. She did not testify to her current status, diagnosis, or prognosis and no testimony was provided of health concerns and problems. On the witness stand, she appeared energetic and combative, where she does not appear ill. Also, she testified her ability to care for the child such as running errands and participating is extra circular activities with them.

The Court of Special Appeals did not see an error of the lower court to impute an income of $10 per hour and she should be able to work 40 hours per week earning $1,733.33 a month.

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