Goicochea v. Goicochea
| Decision Date | 06 December 2022 |
| Docket Number | 877, Sept. Term, 2020 |
| Citation | 256 Md.App. 329,286 A.3d 577 |
| Parties | Juvenal GOICOCHEA v. Rosa GOICOCHEA |
| Court | Court of Special Appeals of Maryland |
Argued by: Ellen L. Lee (Law Offices of Ellen L. Lee, LLC, Rockville, MD), on the brief, for Appellant
Argued by: Heather R. Sweren (Brodsky, Renehan, Pearlstein & Bouquet, Chartered, Gaithersburg, MD), on the brief, for Appellee
Panel: Graeff, Shaw, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.*
This matter stems from a divorce proceeding in the Circuit Court for Montgomery County. In November 2018, the appellee, Rosa Goicochea ("Wife"), filed a Complaint for Absolute Divorce, or, alternatively, Limited Divorce, Alimony, and for Other Appropriate Relief. In October 2019, the appellant, Juvenal Goicochea ("Husband"), filed a Counterclaim for Absolute Divorce. After a trial in March 2020, the court entered a judgment of absolute divorce, granting Wife indefinite alimony in the amount of $7,155 per month and a monetary award in the amount of $667,750.1 Husband timely appeals.
Husband presents the following questions2 for our review, which we have rephrased and reformatted as follows:
Wife and Husband met while they were attending medical school in Trujillo, Peru. They married each other in July 1974. Their daughter was born in Peru, and they moved to the United States in 1977 for Husband's residency, when their daughter was two-and-a-half years old. The parties’ son was born six years after their daughter was born. At the time of the trial, the parties’ daughter was 44 years old, and their son was 38 years old.
The parties’ daughter testified about the parents’ roles in the household during her adolescence:
Husband opened a solo surgical practice in 1982, and he maintained his surgical practice at the time of the trial. Wife began working for the practice in 1989, and she completed billing work for the practice.
Husband began an adulterous relationship with his first paramour by 2006, and he moved out of the marital home until 2008. Husband returned home in 2008 after he promised Wife that he would cease contacting his paramour. Husband broke that promise, and he continued financially supporting his paramour through December 2016.
Around December 2016, Husband admitted to Wife that he was having an adulterous relationship with his second paramour. Husband rented an apartment for his second paramour and contributed money towards her rent. Husband bought a home in October 2017 on Tern Drive in Potomac, where he and his second paramour resided together.
The court ultimately found that Husband had dissipated $609,111 of marital funds through large bank account withdrawals, his payments towards the Tern Drive property, and his payments to his paramours, which included gifts, travel, and dining expenses. The court granted Wife an absolute divorce based upon Husband's adultery.
After Wife learned of Husband's adultery in 2006, and after Husband restricted her access to funds, Wife withdrew $200,000 from the parties’ home equity line of credit ("HELOC"). At trial, Wife could not explain the use of $50,000 of those funds, and she thus conceded that she had dissipated that $50,000. As to the remaining $150,000 withdrawn from the HELOC, the court found as follows: "Wife presented credible evidence to show that all but approximately $50,000 of the funds were used for marital or family expenses."
At the time of the trial, Husband was 71 years old, and Wife was 70 years old. We will supply additional facts as needed in the discussion of the questions presented.
Husband first claims that the court erred in determining that he had dissipated marital funds. Wife responds that the court correctly applied Maryland law and found that Husband had dissipated $609,111 in marital assets based on the following evidence presented at trial: Husband's large bank account withdrawals; his payments towards the Tern Drive property; and his payments to his paramours, which included gifts, travel, and dining expenses.
Dissipation occurs when one party "spen[ds] or otherwise deplete[s] marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of the divorce." Omayaka v. Omayaka, 417 Md. 643, 653, 12 A.3d 96 (2011) (quoting Welsh v. Welsh, 135 Md. App. 29, 51, 761 A.2d 949 (2000) ). When dissipation of marital assets is found, it constitutes "no more than a fraud on marital rights" and the dissipated assets should be considered "extant marital property ... to be valued with the other existing marital property." Sharp v. Sharp, 58 Md. App. 386, 399, 473 A.2d 499 (1984). "A trial court's judgment regarding dissipation is a factual one and, therefore, is reviewed under a clearly erroneous standard." Omayaka, 417 Md. at 652, 12 A.3d 96. "If there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous." Omayaka, 417 Md. App. at 652-53, 12 A.3d 96 (quoting Fuge v. Fuge, 146 Md. App. 142, 180, 806 A.2d 716 (2002) ). Further, Md. Rule 8-131(c) states that when an action is tried without a jury, the appellate court reviews the case based on the law and the evidence and will "give due regard to the opportunity of the trial court to judge the credibility of the witnesses." As such, a trial court is granted significant deference and is entitled to "accept—or reject—all, part, or none of the testimony of any witness." Omayaka, 417 Md. at 659, 12 A.3d 96. But to the extent that "the order being reviewed involves an interpretation or application of Maryland statutory or case law, our review is de novo. " Evans v. Wilson, 382 Md. 614, 623, 856 A.2d 679 (2004).
The Court of Appeals has explained the burden of proof3 for a dissipation claim as follows:
The burden of persuasion and the initial burden of production in showing dissipation is on the party making the allegation. That party retains throughout the burden of persuading the court that funds have been dissipated, but after that party establishes a prima facie case that monies have been dissipated, i.e. expended for the principal purpose of reducing the funds available for equitable distribution, the burden shifts to the party who spent the money to produce evidence sufficient to show that the expenditures were appropriate.
Omayaka, 417 Md. at 656-57, 12 A.3d 96 (quoting Jeffcoat v. Jeffcoat, 102 Md. App. 301, 311, 649 A.2d 1137 ) (internal citation omitted). In addition, "[p]roof that a spouse made sizable withdrawals from bank accounts under his or her control is sufficient to support the finding that the spouse had dissipated the withdrawn funds." Omayaka, 417 Md. at 657, 12 A.3d 96.
Husband argues that the court erred in finding that Wife proved that Husband had dissipated $268,300 in cash withdrawals. The court found that Husband dissipated $268,300 through numerous large cash withdrawals from July 2015 through February 2020. During that time, Husband withdrew a total of $318,300 in cash from bank accounts.
At trial, Wife presented expert testimony from Joseph Estabrook. The court admitted Estabrook as an expert in business valuation, forensic accounting, asset tracing and use of funds, and income tax issues. Estabrook's summary, which was admitted at trial, detailed Husband's large cash withdrawals from 2015 through February 2019. Those withdrawals amounted to $276,300. After Estabrook completed his summary, Wife received additional documents, which showed that Husband withdrew approximately $42,000 in cash from March 2019 through February 2020. As a result, the trial court found that Husband had withdrawn a total of $318,300. Based on that finding, the court found "that Wife made out a prima facie case of dissipation[,]" and "Wife effectively shifted the burden to Husband to show that his cash withdrawals were appropriate." The court then thoroughly examined Husband's testimony and made credibility findings. The court determined that Husband's testimony established that he did not dissipate $50,000 that he withdrew for attorney's fees, but he dissipated the remaining $268,300 of cash.
First, the court examined Husband's testimony that he wrote himself a $76,990.54 check to pay 2017 federal taxes. Husband presented no documentary evidence of that alleged payment to the IRS, and the court found that Husband's testimony was not credible:
Husband testified that on February 2, 2018, he wrote himself a $76,990.54 check to pay 2017 federal taxes. He could not recall whether this was for taxes due on a joint return. The bank records belie his testimony. On February 2, 2018, Husband withdrew from BB&T Checking Account x9796 cash in the amount of $76,990.54.[ ] On that day, he redeposited $26,990.54 into BB&T Money Market Account x8429.[...
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...court's dissipation determinations "[i]f there is any competent evidence to support the factual findings below[.]" Goicochea v. Goicochea, 256 Md.App. 329, 340 (2022) (quotation marks and citations omitted), denied, 483 Md. 277 (2023). At the hearing, Wife introduced into evidence bank stat......