Hiltz v. Hiltz

Decision Date03 September 2013
Docket NumberSept. Term, 2011.,No. 1433,1433
Citation213 Md.App. 317,73 A.3d 1199
PartiesGary HILTZ v. Melissa HILTZ.
CourtCourt of Special Appeals of Maryland


Steven D. Shemenski (Law Office of James E. Crawford, Jr. and Assoc., LLC, on the brief), Arbutus, MD, for Appellant.

Richard V. Lynas, Towson, MD, for Appellee.

Panel: GRAEFF, HOTTEN, RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.


In this divorce action between Gary Hiltz (“Gary”), the appellant-cross-appellee, and Melissa Hiltz (“Melissa”), the appellee-cross-appellant, the Circuit Court for Baltimore County granted the parties a divorce, and granted Melissa indefinite alimony, a monetary award, an equal interest in the marital portion of Gary's two pensions,1 and attorneys' fees. Additionally, the court ordered the marital home be held in trust until its sale and that the proceeds be equally divided between the parties. Finally, the court ordered the sale of the one-third interest the parties maintained in Delaware real property, and that those proceeds be equally distributed between Melissa and Gary.

Gary timely noted an appeal to this Court. In response, Melissa filed a cross-appeal. In sum, both parties presented five questions for our review. We have consolidated, rephrased, and reorganized them as follows: 2

1. Whether the circuit court erred when it determined that Gary was requiredto present clear and convincing evidence to rebut the presumption that Melissa was permanently disabled and whether it equally abused its discretion in awarding indefinite alimony based on that presumption.

2. Whether the circuit court erroneously calculated the amount of indefinite alimony awarded to Melissa.

[213 Md.App. 322]3. Whether the circuit court erred in granting Melissa a monetary award in the amount of $88,848.50 and additionally erred in its denial of Melissa's request for a finding of dissipation of marital property.

4. Whether the circuit court abused its discretion in awarding Melissa attorneys' fees in the amount of $10,000.

For the reasons outlined below, we affirm the circuit court's judgment of divorce. Because we conclude, however, that the court applied the incorrect standard in its finding of permanent disability, thereby abusing its discretion in awarding indefinite alimony, we shall vacate the remaining judgments and remand the case for further proceedings consistent with this opinion.3


After courting for approximately two years, Melissa and Gary were married in May 1990. The couple moved into a modest townhouse, purchased prior to their nuptials in Baltimore County, Maryland. Gary subsequently adopted Melissa's son from a previous marriage, named Jonathan Hiltz (“Jonathan”), born in 1986. Jonathan was approximately three and one-half years-old when Melissa and Gary were wed.

At the inception of their marriage, Melissa was working for the American Neurological Association as a medical secretary. She had previously obtained her high school diploma and had attended a few community college classes in medical terminology and typing. Nonetheless, both she and Gary decided that Melissa would resign from her full-time employment, and find part-time work closer to home in order to assume the role of primary caretaker and homemaker.4 Gary ardently believed the decision would better serve the family

if she didn't have to work full-time because she had a little bit more on her at home than [Gary] did ..., [because] she took care of more of the inside of the house[.] [Gary] just felt it would be better for her[,] [because they] had a son .... Instead of putting him in daycare, [Gary] wanted him to be raised by [Melissa and him] instead of some stranger.In addition to caring for the parties' son, the home, and working part-time, Melissa managed the family's financials and did most of its banking. Despite Melissa's history of fibromyalgia,5 managed by prescription medications, she lived a fairly active lifestyle. She enjoyed fitness and the outdoors and partook in hiking, swimming and exercise videos. Further, she would take their son, Jonathan, to play laser tag. Gary, on the other hand, assumed the role of primary financial provider, working as a journeyman electrician and actively participating in the electrical union.

Together, the parties lived a fairly comfortable middle-class lifestyle. Although Melissa and Gary did not particularly worry about their finances, they used their incomes and savings conscientiously. Indeed, the parties satisfied the thirty-year mortgage on their townhouse in less than ten years. Additionally, if Melissa and Gary used credit cards, they would satisfy the debts within a month's time. Melissa and Gary “never had outstanding debts [,] and [they] had no car loans.” Nonetheless, Melissa and Gary were able to eat at restaurants several times a week, and Melissa could occasionally go shopping without worry.

After satisfying the mortgage on their townhouse, Melissa and Gary purchased a second home in Baltimore County, Maryland for $170,000 cash from Gary's parents in the summer of 2004. In addition, the parties amassed approximately $200,000 in a joint savings account.

Notwithstanding these accomplishments, Melissa and Gary began experiencing problems within the first five years of their marriage. Specifically, Melissa disapproved of the manner in which Gary disciplined Jonathan for any wrongdoing. At trial, Melissa characterized the early conflict in their marriage as follows:

There were a lot of issues. They started pretty shortly after we were married and we moved in as a family. There were issues surrounding our son [,] Jonathan[,] and how he was disciplined. Gary would get very angry and very upset with any, it seemed like small things that Jonathan would do. Gary would start hollering at [Jonathan,] and he would cry[.] I would step in and ask [Gary] to please control [his] temper ... and he would just turn his anger on me, telling me that Jonathan and I were ganging up on him.

As a consequence, Melissa and Jonathan moved out of the marital home for a period of a week, moving in with Melissa's parents. Following a few telephone conversations, Melissa elected to return to the marital home with Jonathan. Thereafter, Melissa and Gary sought counseling from their Lutheran pastor.

Unfortunately and shortly after Melissa and Jonathan moved back to the second home in Baltimore County, Melissa suffered a serious back injury in April of 2004. Melissa described the injury during her direct examination at trial:

Okay. Well ... I woke up one morning and felt very stiff in my back [,] and I stretched and [ ] overstretched and felt a popping, [and I] had immediate pain[.] [I] was in pain for several days after that[,] and I went to see my doctor who was treating me for fibromyalgia[;] and[,] he ordered MRI's [.] [I]t showed a ruptured disc in my lumbar back and a ruptured disc in my thoracic, which is my mid-back[.] [The MRI] also [revealed] some spinal stenosis and arthritis in my hips and shoulders and back.

Melissa's injury exacerbated her fibromyalgia. As a result, Melissa's ability to engage in the everyday physical activities prior to her injury was severely limited. She could neither play with her son the way she had previously, nor care for the marital home in the same manner she did prior to her injury. According to Melissa, the pain became increasingly unbearable, resulting in Melissa leaving her part-time employment. As a consequence, Gary suggested to Melissa that she apply for Social Security disability. Melissa's constant back pain, in addition to the death of both her grandmother and father, caused her to slip into a deep depression.

Thus, when Gary came home after a day of work and criticized Melissa for her failure to maintain the home the way she used to and for not preparing his dinner, she resented it. At trial, Gary represented the developing tension between Melissa and he as follows:

It started to get a little bad when we moved into ... 5210 1/2[,] because she started to develop back problems and they prescribed [pain medication] and sleeping pills and muscle relaxers[. S]he became real sensitive when I would say something to her about cleaning the house. She was letting things go to where she wasn't cleaning the house like she was before. And I would come home a lot and she would just be laying on the couch. And I mentioned to her that she, I wish I could lay down on the couch all the time. I mean, I would come home and she would be on the couch all the time[,] and I finally would say something[ ] because it got to me after a while when the house was getting real messy and she wasn't cooking for me as much. She would make me wait until 7:00 or 8:00 at night to eat, knowing that I would get home like around 4:00.

The arguments between the parties worsened, and Melissa informed Gary that she was leaving in the spring of 2005. Gary, however, prohibited her from leaving the home. As a result, Melissa telephoned 911 emergency for assistance. Thereafter, she was escorted from the marital home by police.

Melissa and her son moved into her mother's home, located in Dundalk, Baltimore County, Maryland.6 When she moved out of the marital home, Melissa withdrew approximately $103,000 from the parties' joint savings account. She believed that taking half of their savings to support herself during the period of their separation was appropriate. Because Melissa's mother had moved to Florida, Melissa was responsible for paying for all the utilities associated with her mother's residence and also for placing food on the table for herself and her, then, nineteen year-old son. Large portions of the money she withdrew, however, would later be used towards efforts to save the family's dog, to assist Jonathan with his legal troubles, and to partially support Jonathan and her grandchild.

After learning that Melissa had withdrawn the funds from their joint savings account, Gary placed...

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