Malin v. Mininberg

• Decision Date: 01 December 2003
• Docket Number: No. 2520,2520
• Citation: 153 Md. App. 358,837 A.2d 178
• Parties: Murray J. MALIN v. Marcie Beth MININBERG.
• Court: Court of Special Appeals of Maryland

837 A.2d 178

153 Md. App. 358

Murray J. MALIN v. Marcie Beth MININBERG.

No. 2520, Sept. Term, 2001.

Court of Special Appeals of Maryland.

December 1, 2003.

George Paxton (Lerch, Early & Brewer, Chartered, on brief), Bethesda, for appellant.

Bryan Renehan (Brodsky, Greenblatt & Renehan, Chartered, on brief), Gaithersburg, for appellee.

Argued before HOLLANDER, SHARER, WENNER, WILLIAM W. (Retired, Specially Assigned), JJ.

HOLLANDER, J.

This case presents a host of issues arising from the dissolution of the marriage of Murray J. Malin, appellant, and Marcie Beth Mininberg, appellee. Their union was brief; the parties married in November 1996 and separated in November 1999. The couple's only child, Samuel, was born on July 25, 1998.¹ Appellee initiated divorce proceedings in June 2000, and the trial consumed five days in July 2001. At the end of trial, the court issued an oral opinion, which was followed by a written Opinion and Judgment of Absolute Divorce. The court's rulings spawned this appeal; Malin presents nine questions, which we have reordered slightly:

I. Did the court commit reversible error in finding that [the] husband was voluntarily impoverished?

II. Did the court err in setting child support at $1,500 per month?

III. Was it an abuse of discretion for the court to order [monthly] alimony in the amount of $3,500?

IV. Was it an abuse of discretion for the court's award of rehabilitative alimony to extend over five years?

V. Did the court exceed its authority in designating the wife's support payment as non-taxable alimony?

VI. Did the court exceed its authority in ordering the establishment of what amounts to be a trust account for future expenses of the parties' child?

VII. Did the court erroneously apportion between the parties the amount of money to be placed in a trust account for the expenses of the parties' child?

VIII. Was it an abuse of discretion for the court to decline to make a monetary award to husband?

IX. Was the award [to the wife] of $60,000 in attorney's fees an abuse of discretion?

For the reasons stated below, we shall affirm in part, reverse in part, and remand for further proceedings.

FACTUAL BACKGROUND²

Appellant was born in 1958. At the time of the marriage, he was a thirty-eight year old practicing anesthesiologist. Appellee, born in 1969, was twenty-seven years of age when the parties married. Although appellee graduated from law school in 1994, she failed the Bar examination twice. Appellee decided not to take the exam for a third time because, after working for a general practice lawyer for about nine months, she realized that she "didn't enjoy the practice of law ... at all"; it was "too stressful...." When the parties met in late 1995, appellee was working at a jewelry store.

In April 1996, the parties began to cohabitate at appellant's home in Bethesda. In the summer of 1996, appellee began working for her father, a physician, on a part-time basis. She was paid thirty dollars an hour to handle a variety of office and bookkeeping duties, earning about $1,800 biweekly.

Prior to the marriage, appellant disclosed to appellee his history of alcohol and drug addiction. Appellant first began abusing Valium during his residency at Georgetown University in 1987. That year, appellant spent two months at a treatment facility in Atlanta. Recognizing that he had a "real problem," and that it was a "life and death matter," appellant also sought treatment from an addictions doctor, became involved with Alcoholics Anonymous, and attended group therapy sessions. According to appellant, he remained sober from 1987 until 1999. Prior to the marriage, Dr. Malin had already purchased a house in Bethesda, although he had little equity in it. The parties lived in appellant's home for approximately two years after they were married. Appellant also had furniture and an automobile. The parties sold appellant's furniture, netting approximately $23,000; the proceeds went into the "family coffers."

Dr. Malin accumulated $290,973.49 in retirement assets prior to the marriage. During the marriage, he made additional contributions of $54,358 to his retirement accounts. Dr. Malin also received $29,000 from the settlement of a boundary dispute relating to non-marital property, which the parties used for living expenses. Then, in January 1999, the parties received $73,418 from Guardian Life Insurance in connection with appellant's disability claim. According to appellee, these funds were also used for household expenses.

Appellee came to the marriage with $31,000 in a mutual fund, as well as a car and some jewelry. Her funds were used for family expenses. Moreover, for a period of approximately one year, while the parties' new home in Potomac was under construction, they lived with appellee's parents. According to appellee, by living with her parents for a year, they "saved a lot of money," which they used for their new home.

The parties settled on their new house in June 1999, just a few months before they separated. The purchase price was $782,581, plus settlement costs. In addition to a $60,000 deposit, the settlement sheet reflects that the parties borrowed $600,000 to fund the purchase, and paid another $145,000 at closing. The parties sold the house less than a year after settlement, in April 2000, for $975,000. The sale price included a built-in "high-definition" television that cost the parties about $13,000.

Apart from the mortgage, the funds used by the parties to acquire the marital home came largely from appellant's retirement account, most of which contained non-marital funds. It is undisputed that appellant withdrew about $200,000 from his various retirement account for that purpose. The parties used a portion of that money to pay fees and taxes generated by appellant's early withdrawal of his retirement funds.

Appellee testified that, during the marriage, she "was responsible for the house." Moreover, while they lived in appellant's home, the parties decided to renovate it, because it "needed a lot of repairs in order to be sold." Appellee testified:

... I was responsible for hiring all the contractors, overseeing the work, making sure it got done, meeting the contractors at the house.

I was responsible for all the grocery shopping, the dry cleaning, the upkeep of the house, making sure it was clean and everything was taken care of.

As noted, Samuel was born on July 25, 1998. According to appellee, he was a "very difficult" baby; he cried a lot, had colic, and "rarely slept." It is undisputed that Sam has serious developmental disabilities. He was diagnosed with "pervasive developmental disorder, not otherwise specified," an autism-related disorder characterized by lack of socialization and communication.³

Although appellee "worked until the day before [she] delivered," and went back to work "two weeks later," she decided in July 2000 to reduce her work schedule from thirty hours a week to fifteen, in order to devote more time to Sam's needs. Appellee explained that she did so because caring for Sam "became a full-time job just to explore programming, find programming, all the insurance and all the billing and the reading and the educating." Appellee also drives Sam to therapy sessions at least four times a week. Given her parental responsibilities and challenges, appellee added that it was "really hard" to "squeeze" in work. Further, appellee testified:

It's—it's—well, you first go through a process of just being completely overwhelmed, not knowing what to do, and you feel entirely inadequate as a parent, because you need to relearn how to be a parent.

You're not a parent in terms of what you normally just do with a child through the course of the day and they learn from just doing it. You have to learn how to teach them, how to be a parent. It's a totally different experience.

The parties hired a nanny in April 1999 to assist with Sam's care and with the household; the nanny continues to work for appellee. Appellee explained that she needs help with Sam because he cannot be left "unattended," even while appellee engages in simple tasks like showering. She stated: "[O]ne of the characteristics of children with these issues is they're unaware of danger...." In contrast to her friends, who "can leave their children ... sitting in a room while they do something else," appellee said that she "can't really do that with Sam."

Both parties attributed some of their marital difficulties to Sam's health problems. Appellee complained that she and the nanny "provided the primary care" for Sam, while appellant offered little help in caring for him during the time that they lived with her parents. She testified:

[W]e now had an infant who never slept, and I would be up all night and need some relief. And in the morning he would leave at 6:00-6:30 to go play golf, come home at 3 o'clock in the afternoon, and then want to sleep all afternoon because he was tired.

I had been up all night and hadn't gotten a break. And being with Sam during the day at this point was not easy. All he did was cry, and we rocked and we walked and we rocked and we walked. And it was a very trying time.

Appellant acknowledged that his "relationship" with his wife became "more difficult" after Sam was born. He experienced "a constant struggle [with appellee] to be part of Sam's life," and complained that his wife frequently rejected his offers to help with Sam's care. According to Dr. Malin, during the latter part of the marriage, there was "no communication between the two of us," although he perceived himself as "very communicative." Moreover, he claimed that whenever he tried to "say anything," appellee "would yell or scream or get mad...." It reached a point where he "didn't want to deal with it anymore."

In January 1998, appellant was terminated from his employment with Columbia Anesthesia Services, because he allegedly tampered with patient medical charts for financial gain. According to appe...