Hoffman v. Hoffman

• Decision Date: 01 September 1991
• Docket Number: No. 1865,1865
• Citation: 614 A.2d 988,93 Md.App. 704
• Parties: Roy C. HOFFMAN v. S. Diann HOFFMAN. ,
• Court: Court of Special Appeals of Maryland

Page 704

93 Md.App. 704

614 A.2d 988

Roy C. HOFFMAN v. S. Diann HOFFMAN.

No. 1865, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Oct. 28, 1992.

John H. Williams (Broughton, Hooper & Williams, P.A. on the brief), Salisbury, for appellant.

Malcohlm Joseph Bond of Towson, for appellee.

Argued before FISCHER, CATHELL and MOTZ, JJ.

FISCHER, Judge.

Roy C. Hoffman, appellant, and S. Diann Hoffman, appellee, were married on July 6, 1974. Mr. and Ms. Hoffman have two children; one child was born of this marriage, and Mr. Hoffman adopted a child of Ms. Hoffman. ¹ On June 20, 1986, Ms. Hoffman filed a complaint in the Circuit Court for Harford County seeking a "Limited Divorce and Financial Settlement." A pendente lite hearing was held and the master filed a report on October 20, 1986. Pursuant to the master's report, the circuit court order of November 20, 1986 required Mr. Hoffman to: pay $60 per week per child, give use and possession of a car to the eldest child, pay the child's car insurance, and to pay Ms. Hoffman $200 reimbursement for the hearing. Due to various delays, the trial on the divorce did not occur until March, 1990. At trial, Ms. Hoffman orally amended her complaint to request an absolute divorce based on a two-year separation. By a Judgment for Absolute Divorce filed on July 29, 1991, the trial judge ordered:

1. The parties should be granted an absolute divorce.

2. Ms. Hoffman should be granted custody of the minor child of the parties with the right of reasonable and liberal visitation to Mr. Hoffman.

3. The attorneys for the parties be appointed as co-trustees to sell both the marital home and the Alabama property.

4. Upon the sale of the marital home and after the payment of all costs of the sale, Mr. Hoffman shall receive a "credit" for $8,997.00 and the balance of the proceeds shall be divided equally between the parties.

5. Unless the parties agree otherwise, attorneys for the parties are appointed as co-trustees to sell the personal property of the parties and distribute the proceeds equally.

6. Upon the sale of the Alabama property and after the payment of all costs of sale, Mr. Hoffman shall receive a credit of $35,377.00 and the balance of the proceeds shall be divided equally between the parties.

7. Ms. Hoffman shall receive a "marital award" of $8,901.00 as her share of Mr. Hoffman's military retirement pay or in the alternative that she receive 14.4% of that pay if and when received.

8. Ms. Hoffman shall receive a "marital award" of $21,502 as her share of Mr. Hoffman's pension or in the alternative that she receive 30% of the pension if and when received.

9. Mr. Hoffman shall receive a "marital award" in the amount of $1,798.95 as his share of Ms. Hoffman's pension.

10. Mr. Hoffman shall pay to Ms. Hoffman the sum of $450 per month as child support.

11. Mr. Hoffman be ordered to pay to Ms. Hoffman $2,000 as contribution toward attorney's fees.

12. Both parties are denied alimony.

On appeal, Mr. Hoffman presents the following issues:

1. Whether the trial court erred in its calculation of the marital and nonmarital portions of specific marital assets and, if there was error, would it require the case to be remanded.

2. Whether the trial court erred in awarding specific "credits" out of the proceeds of sale of the Maryland and Alabama homes in lieu of one monetary award.

3. Whether the trial court erred in awarding Ms. Hoffman a lump-sum amount of Mr. Hoffman's United States Civil Service Retirement System Pension or, in the alternative, that Ms. Hoffman receive 30% of that pension if and when received.

4. Whether the trial court abused its discretion in only awarding Mr. Hoffman $1,798.95 of Ms. Hoffman's pension.

5. Whether the trial court abused its discretion in refusing to consider the $17,000.00 that Ms. Hoffman withdrew from the parties' joint savings account, in its consideration of the amount of the monetary award.

6. Whether the trial court erred in its award of contribution to Mr. Hoffman for expenses he paid to maintain the Alabama property.

7. Whether the trial court abused its discretion in awarding retroactive child support to Ms. Hoffman.

8. Whether or not the trial court abused its discretion in failing to consider the vast sums of money spent by Mr. Hoffman toward's Ms. Hoffman's car payment, insurance, and the child's car, providing the child with a car and payments towards the marital home, pursuant to the November 20, 1986 court order under the "other factors" provision of the Annotated Code of Maryland, Family Law Article, Section 8-205(b)(10).

At the time of the marriage, Mr. Hoffman was 39 years of age and a Captain in the National Guard, and Mrs. Hoffman was 22 years of age and employed as a respiratory therapy technician. After the birth of their child in November, 1974, Ms. Hoffman ceased working until she graduated from nursing school in 1981. She is currently employed as a registered nurse and earns approximately $30,000 annually. Mr. Hoffman retired from the National Guard as a Lieutenant Colonel with thirty-four years of service and a pay level of GS-12. He is currently a civilian employee of the Federal Government and earns approximately $42,000 per year.

During the marriage, Mr. and Ms. Hoffman acquired two pieces of real property, one in Aberdeen, Maryland and the other in Enterprise, Alabama. Mr. Hoffman provided, from an inheritance he received, a down payment of $8,997.35 for the Aberdeen property. Mr. Hoffman sold a pre-marital residence in Washington state and used the proceeds of $28,532 to purchase the Alabama property.

I. and II.

Mr. Hoffman avers that the trial judge failed to determine properly which property is marital and which property is nonmarital. We agree. The relevant law is contained in Md.Fam.Law Code Ann., §§ 8-201 to 8-213, otherwise known as the "Marital Property Act" (Act). The purpose of the Act is to divide equitably and fairly the property interests of spouses by giving consideration to the monetary and non-monetary contributions of each spouse. Harper v. Harper, 294 Md. 54, 448 A.2d 916 (1982). In order to alleviate any inequities between the parties, the Act provides for a monetary award to be granted. The granting of this monetary award, however, seems to generate a great deal of confusion.

As we summarized in Paradiso v. Paradiso, 88 Md.App. 343, 349-350, 594 A.2d 1200 (1991), and illustrated in Blake v. Blake, 81 Md.App. 712, 723-726, 569 A.2d 724 (1990), the Act requires a three-step process to be completed before a "single" ² monetary award may be granted. The steps to be completed are: (1) If an equitable adjustment over and above the distribution of the spouse's property in accordance with its title is an issue, the court shall determine which property is marital property, § 8-203; (2) the court shall then determine the value of all marital property, § 8-204; and (3) the court may make a monetary award as an adjustment of the equities and rights of the parties, § 8-205. If, under § 8-205, the court decides it is appropriate to make a monetary award, it must consider these ten factors:

1. the contributions, monetary and nonmonetary, of each party to the well-being of the family;

2. the value of all property interests of each party;

3. the economic circumstances of each party at the time the award is to be made;

4. the circumstances that contributed to the estrangement of the parties;

5. the duration of the marriage;

6. the age of each party;

7. the physical and mental condition of each party;

8. how and when specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan, was acquired, including the effort expended by each party in accumulating the marital property or the interest in the pension, retirement, profit sharing, or deferred compensation plan, or both;

9. any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and 10. any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan, or both.

Harper, 294 Md. at 79, 448 A.2d 916; Paradiso, 88 Md.App. at 349-350, 594 A.2d 1200; Wilen v. Wilen, 61 Md.App. 337, 355, 486 A.2d 775 (1985); Ward v. Ward, 52 Md.App. 336, 339, 449 A.2d 443 (1982); See also Quinn v. Quinn, 83 Md.App. 460, 464, 575 A.2d 764 (1990); Melrod v. Melrod, 83 Md.App. 180, 185, 574 A.2d 1 cert. denied, 321 Md. 67, 580 A.2d 1077 (1990).

Unfortunately, the trial judge failed to follow these steps and granted two or more monetary awards, which he erroneously termed "marital" awards. As we have stated many times, "[S]ave for certain employee benefits, the court cannot give more than one monetary award." Rock v. Rock, 86 Md.App. 598, 623, 587 A.2d 1133 (1991); See also, Ward, 52 Md.App. at 343, 449 A.2d 443. Apparently, the trial judge found that a monetary award was necessary, in view of the dispositions made and consideration of each of the factors listed in § 8-205. The award was, however, incorrectly calculated.

Following the statutory guidelines, the trial court is to determine which property is marital. Section 8-201 defines marital property to be property, however titled, acquired by one or both parties during the marriage but does not include property: (i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or (iv) directly traceable to any of these sources.

When property is acquired by an expenditure of both nonmarital and marital property, the trial court must use the source of funds analysis to allocate properly the property as partially marital and partially nonmarital. Grant v. Zich, 300 Md. 256, 268-269, 477 A.2d 1163 (1984); Harper, 294 Md. at 82, 448 A.2d 916. "The property is ...