Hollander v. Hollander

• Decision Date: 01 September 1990
• Docket Number: No. 1995,1995
• Citation: 597 A.2d 1012,89 Md.App. 156
• Parties: , 60 USLW 2359 Morton H. HOLLANDER v. Adele R. HOLLANDER. ,
• Court: Court of Special Appeals of Maryland

Page 156

89 Md.App. 156

597 A.2d 1012, 60 USLW 2359

Morton H. HOLLANDER v. Adele R. HOLLANDER.

No. 1995, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Nov. 1, 1991.

William P. Englehart, Jr. (Nolan, Plumhoff & Williams, Chtd., on the brief), Towson, for appellant

G. Warren Mix (Turnbull, Mix & Farmer, on the brief), Towson, for appellee.

Argued before GARRITY, FISCHER and CATHELL, JJ.

CATHELL, Judge.

The domestic dispute between Morton and Adele Hollander did not cease with the judgment of absolute divorce from the Circuit Court for Baltimore County. Specifically, Morton Hollander appeals from the Order of Determination of Marital Property and Alimony given by Brennan, J., on March 20, 1990, and from the denial of his Motion to Alter, Amend and Revise Judgment. Alleging error in the judgment

as to the monetary award, alimony and counsel fees, Dr. Hollander raises these questions:

1. Did the trial court err in making a monetary award from Husband to Wife based upon his alleged dental practice?

2. Did the trial court err in declining to recognize and enforce Husband's non-marital property interest in certain real property?

3. Did the trial court err in making an award of alimony from Husband to Wife?

4. Did the trial court err in making an award of attorney fees from Husband to Wife?

We conclude that the trial court properly classified the dental practice and the real property in issue as marital property. We hold that the court's reliance on the value of the practice as of 1986 to establish current value was justified under the circumstances of this case. We further hold that appellant has failed to preserve the other issue he raises with respect to the method of valuation utilized by appellee's expert and that the trial court did not abuse its discretion in awarding alimony or counsel fees. Accordingly, we shall affirm. We explain.

FACTS

The parties were married in June of 1952. During their marriage of more than thirty-seven years, they raised three children to adulthood.

Dr. Hollander has been practicing dentistry since 1943. He first established his dental practice in the home of his parents. This was also the location of the Hollanders' first apartment. They lived in the third floor apartment for two years of their marriage. At the time of their marriage, Mrs. Hollander worked for the Baltimore City Board of Education. However, Dr. Hollander, not wanting his wife to work, told her to leave her job because he would take care of her. Mrs. Hollander then took responsibility for raising the children, caring for the home and even assisting her husband with his dental practice.

In 1967, Dr. Hollander moved his dental office to the Hollanders' marital residence. Dr. Hollander testified that this home was purchased in 1958 with money that he had saved prior to marrying his wife. According to his testimony, these resources were kept in a personal savings account segregated from the couple's funds. In addition, Dr. Hollander also testified that he later redeemed the ground rent with money from this same premarital fund. Before the purchase of their new home, the couple had moved from the apartment in the doctor's family home into another apartment to " 'save money to purchase a home,' despite the fact that he had $130,000.00 saved." Both the house and the land were titled as tenants by the entirety.

One of the children, Melissa, joined her father's dental practice in 1980. The two shared patients, but Melissa also developed her own patients. According to testimony, common office expenses were shared; however, they kept separate records and reported their income as sole proprietorships.

In the fall of 1985, Dr. Hollander allegedly executed a letter giving Melissa his dental practice. Beginning in January of 1986, Dr. Hollander was to receive a limited salary of $8,000 per year. The purported consequences of the "gift" did not occur as planned, however. Melissa took time off to give birth to a child, and Dr. Hollander continued to work full time at the practice. He filed an income tax return showing earnings close to $80,000 for the year of 1986.

The parties separated in February of 1987. The circumstances that led to the estrangement are of no consequence to this appeal. The judgment for absolute divorce was dated September 5, 1989.

THE LAW

I. MONETARY AWARD

The primary contentions of appellant focus on the monetary award. Dr. Hollander asserts that the trial court utilized an improper basis for granting the award as it contained non-marital property.

We shall first briefly discuss the mechanics of granting a monetary award. The Marital Property Act requires that, before a monetary award is granted, the following three-step process occur: (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, Md.Fam.Law Code Ann. § 8-203 (1984 & Supp.1991); (2) the court shall then determine the value of all marital property, § 8-204; and finally, (3) the court may make a monetary award as an adjustment of the parties' equities and rights "concerning marital property, whether or not alimony is awarded," § 8-205(a).

If an award is deemed appropriate, the court then must consider each of the ten factors enumerated in section 8-205. Harper v. Harper, 294 Md. 54, 79, 448 A.2d 916 (1982); 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).

Dr. Hollander alleges that the court erred while executing the first step required by the Marital Property Act. He contends that neither his dental practice nor the marital home should have been characterized as marital property. As a result, the monetary award granted to his wife must be vacated. We disagree. The determinations made by the court below were correct.

A. Dental Practice

Before addressing the issue of whether the dental practice is marital property, we must examine the question of ownership presented by appellant. He contends that the evidence produced at trial "unequivocally established that Husband formally gave his dental practice to his daughter...." Thus, the trial court should not have classified the practice as marital property because it was no longer the property of either party. After reviewing the doctrine of dissipation, we do not find this argument convincing.

Judge Alpert, for this Court, clearly stated the rationale of including dissipated property in a monetary award:

[I]t would clearly be against the Legislature's stated public policy to permit one spouse to squander marital property and render it impossible to make an equitable award of property. Therefore, where a chancellor finds that property was intentionally dissipated in order to avoid inclusion of that property towards consideration of a monetary award, such intentional dissipation is no more than a fraud on marital rights and the chancellor should consider the dissipated property as 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) (citations omitted). See also Court v. Court, 67 Md.App. 676, 686, 509 A.2d 693 (1986); Rosenberg v. Rosenberg, 64 Md.App. 487, 502, 497 A.2d 485, cert. denied, 305 Md. 107, 501 A.2d 845 (1985).

The court in the case sub judice found "[i]t ... quite obvious that Dr. Morton Hollander ... attempted to deceive this Court concerning his dental practice and earnings so as to affect his valuation of the marital property." We consider the evidence sufficient to support this conclusion. The trial court chose not to believe the appellant, his daughter, or his accountant. The court also placed emphasis on the fact that appellant continued to maintain an identical lifestyle, both professional and personal, after the alleged gift took place. During the trial, the judge had the opportunity to observe the demeanor of the parties, to judge their credibility, and to pass upon the weight to be given their testimony. Schweizer v. Schweizer, 55 Md.App. 373, 380-81, 462 A.2d 562 (1983), aff'd and modified on other issues, 301 Md. 626, 484 A.2d 267 (1984). We do not find it clearly erroneous for the trial court to conclude that the dental practice was "given" to Melissa to avoid the consequences of the impending divorce.

Relying on the recent case of Prahinski v. Prahinski, 321 Md. 227, 582 A.2d 784 (1990), affirming this Court's opinion, 75 Md.App. 113, 540 A.2d 833 (1988), the appellant next seeks to attack the trial court's ruling that the dental practice is marital property. Dr. Hollander contends the dental practice is not marital property because it consists of pure, professional goodwill. ¹ When the Court of Appeals addressed the issue of whether professional goodwill is marital property in Prahinski, it concluded only that "the goodwill of a solo law practice is personal to the individual practitioner. Goodwill in such circumstances is not severable from the reputation of the sole practitioner...." Prahinski, 321 Md. at 239, 582 A.2d 784 (emphasis added). Because the Court limited its holding to the express facts before it, we do not believe it answered the question before us. ² Although we find Prahinski instructive, we view the question of whether the goodwill of a dental practice is marital property as one of first impression.

Before reaching their conclusions in the respective cases of Prahinski, both the Court of Appeals and Judge Bloom for this Court reviewed the decisions of the courts in other states that have addressed this issue. The majority of these jurisdictions treat professional goodwill as marital property. In re Marriage of Nichols, 43 Colo.App. 383, 606 P.2d 1314 (1979) (solo dental...