Bricker v. Bricker

• Decision Date: 01 September 1988
• Docket Number: No. 1051,1051
• Citation: 78 Md.App. 570,554 A.2d 444
• Parties: , 10 Employee Benefits Cas. 2403 Eugene R. BRICKER v. Mary A. BRICKER. ,
• Court: Court of Special Appeals of Maryland

Page 570

78 Md.App. 570

554 A.2d 444, 10 Employee Benefits Cas. 2403

Eugene R. BRICKER v. Mary A. BRICKER.

No. 1051, Sept. Term, 1988.

Court of Special Appeals of Maryland.

March 8, 1989.

John H. McDowell, Hagerstown, for appellant

Kenneth J. Mackley (Mackley, Gilbert & Marks, on the brief), Hagerstown, for appellee.

Argued before BLOOM, ROSALYN B. BELL and KARWACKI, JJ.

ROSALYN B. BELL, Judge.

We are asked to decide whether a trial judge of the Circuit Court for Washington County erred in awarding indefinite alimony and in addition ordering the economically independent spouse to reimburse the other for future medical insurance premiums. While we conclude the trial judge did not err in awarding indefinite alimony, we hold he did err in ordering reimbursement for future medical insurance premiums.

INDEFINITE ALIMONY

Before reaching the first issue presented, we will look briefly at alimony from a historical perspective. Until 1980, the only alimony the courts in Maryland could award was technical alimony. Moreover, technical alimony could only be awarded by the court.

Technical alimony was specifically defined by Judge Powers in Simpson v. Simpson, 18 Md.App. 626, 628-29, 308 A.2d 410 (1973), as follows:

"Alimony is a money allowance payable under a ju[d]icial decree by a husband at stated intervals to his wife, or former wife, during their joint lives or until the remarriage of the wife, so long as they live separately, for her support and maintenance "a. It must terminate on the remarriage of the wife.

"b. It must terminate on the death of the wife.

"c. It must terminate on the death of the husband." (Footnote omitted.)

For completeness, we would add that the award was modifiable by the court. While we must substitute "economically dependent spouse" for the term "wife" and "economically independent spouse" for the term "husband," see Hofmann v. Hofmann, 50 Md.App. 240, 244, 437 A.2d 247 (1981), Md.Fam.Law Code Ann. § 11-101 (1984), this definition of technical alimony is essentially the same as what is now designated as indefinite alimony. ¹

In 1980 there was a major revision in the law relating to alimony. That change was much more than merely giving a new name to an old concept. In 1976, Marvin Mandel, then Governor of Maryland, had established a Commission on Domestic Relations Laws "to undertake a complete study of the constitutional, statutory, and common law concerning domestic relations, including the laws concerning marriage, the dissolution of marriage, the rights and obligations attendant upon or accruing from each, and the procedures for resolving and adjudicating domestic disputes." ² The first report of the Commission was the impetus for sweeping legislative changes in property rights in the event of divorce in Maryland. The second report of the Commission dealt with alimony. In its Report, the Commission referred specifically to the term of alimony awards:

"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."

On the issue of self-sufficiency, the Commission asserted:

"The Commission believes that the proper solution is neither to forbid nor to require either equality or discrepancy with respect to the standard of living of the parties after a divorce. Our proposal does not require the Court to make the two standards the same. It does empower the Court, however, in cases where the standard of living of the recipient party would be unconscionably disparate from that of the paying party, to provide for an extended or indefinite period of payment. This allows the matter of relative standards of living to be resolved, as it seems to us it must be, on a case-by-case basis." ³

The general principles dealing with alimony are now a part of Md.Fam.Law Code Ann. §§ 11-101 to 11-111 (1984). The authority for indefinite alimony appears in § 11-106(c):

"Award for indefinite period.--The court may award alimony for an indefinite period, if the court finds that:

(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or

(2) 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."

In the instant case, the trial judge concluded that both these situations applied, opining:

"The Court finds that the husband is wholly self-supporting, but the wife is only partly self-supporting. In view of her age, the present state of her health and her lack of significant work experience outside of the home, the Court finds that it cannot reasonably be expected that "In addition, the Court further finds that the wife has made as much progress towards becoming self-supporting as can reasonably be expected. I find that the respective standard of living of the two parties remains unconscionably disparate. Therefore, the Court is going to award alimony for an indefinite period, in the amount of $60.00 per week, plus a continuation of group medical insurance through the husband's employer, Mack Trucks, Inc."

                the wife will make substantial progress towards becoming self-supporting.   Even though she has been working between 55 and 60 hours per week, she is only partly self-supporting.   In order to earn her present income, she is working between 55 and 60 hours.   It is unrealistic to expect she will continue to work such long hours in a physically demanding job, considering her age and the present state of her health
                

The judgment conformed to the court's opinion. Appellant filed a timely motion to alter or amend this judgment. The motion was granted in part in that the award for medical insurance was amended. More details in connection with this issue will appear later.

Appellant does not dispute the facts as found by the trial judge. He takes a different tack. He points out that the wife produced no expert testimony or evidence on her inability to secure employment that would be more economically advantageous. He asserts that, absent that evidence, the trial judge of necessity was speculating in making the award.

Expert testimony on an issue is necessary if the trier of fact cannot reasonably infer the ultimate conclusion without favorable expert testimony. Schweitzer v. Showell, 19 Md.App. 537, 543, 313 A.2d 97 (1974) (relationship between knee injury and spinal disc involvement). A trial judge can determine without expert testimony whether a person can reasonably expect to achieve self-sufficiency or if the incomes of two persons will be grossly disparate.

                These concepts are not foreign to most persons and are within the ability of a fact finder to deduce.   That is not to say that it is inappropriate to have an expert in a situation such as this.   Evidence of the degree to which an economically dependent spouse can or cannot reach self-sufficiency could not only be helpful, it could be preferable.   The issue here, however, is whether the evidence presented was sufficient to support the conclusion reached by the trial judge.   To make that determination, we look at the evidence before the trial judge.
                

The parties had been married for about 25 years. Two children, who have reached their majority, were born to the parties. When she became pregnant, the wife left her job. Except for the first two or three years of the marriage and again after the parties separated in 1981, the wife did not work outside the home. The decision that she remain a full-time homemaker during the marriage was a mutual one. Both parties were high school graduates. The wife was 50, the husband 46. The court specifically found:

"After the parties separated, the wife went to work for Dunkin-Donuts for approximately two years and then went to work at Jeanne's Confectionery in Williamsport. She works six days a week, between 55 and 60 hours per week. Recently, on a temporary basis, she has worked as much as 70 to 72 hours per week. She is paid $3.35 per hour, plus tips which are pooled together and divided once a month."

And

"The wife suffers from an asthmatic condition. She takes medication year-round. When she experiences an 'attack', it becomes difficult for her to breathe and she needs the care of a doctor. She has not been hospitalized in the last year and a half, and her condition has been under control for the past year or so.

"The wife testified her husband is in good condition for his age. He testified he has health problems: high blood pressure (160/118), irregular heart beat and chronic pulled muscle in his back. Neither spouse has been He further found:

                unable to work regularly because of health problems.   The wife's job is very physically demanding, particularly in view of the unusually long hours."
                

"The wife's gross monthly income is $788.79; his, $2242.02. Her net income is $638.82; his, $1503.35. Their principal asset, as listed in their net worth statements, is the one-half interest in the proceeds from the sale of the marital home."

Based on these facts alone, the trial judge could have concluded, as he ultimately did, that she had not become self-supporting during six or seven years of separation due to her age and illness and she could not reasonably be expected to become self-supporting.

The trial judge also knew the gross income of appellant was $2,242 per month; that of appellee was $788.79. Maximizing her income while working excessive hours, appellee's income was only 35 percent of that of appellant. In Kennedy v. Kennedy, 55 Md.App....