Tracey v. Tracey

• Decision Date: 01 September 1991
• Docket Number: No. 334,334
• Citation: 89 Md.App. 701,599 A.2d 856
• Parties: Robert Lester TRACEY v. Ruth Marie TRACEY. ,
• Court: Court of Special Appeals of Maryland

Page 701

89 Md.App. 701

599 A.2d 856

Robert Lester TRACEY v. Ruth Marie TRACEY.

No. 334, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Dec. 30, 1991.

Certiorari Granted Feb. 25, 1992.

J. Dennis Murphy, Jr. (Reed & Murphy, Chartered, on the brief), Annapolis, for appellant.

John A. Blondell, Glen Burnie, for appellee.

Argued before ALPERT, ROSALYN B. BELL and DAVIS, JJ.

DAVIS, Judge.

The appellant, Robert L. Tracey (Mr. Tracey), appeals from a Judgment of Divorce by the Circuit Court of Anne Arundel County (Wolff, J.). As part of the divorce, the circuit court awarded appellee, Ruth M. Tracey (Mrs. Tracey), indefinite alimony in the amount of $300.00 per month. It is from that decision that Mr. Tracey appeals.

FACTS

Robert and Ruth Tracey were married on December 28, 1963, in Joppa, Maryland, and two children were born of the marriage. ¹ 1] On April 20, 1989, after a series of short separations and reconciliations, Mrs. Tracey left the marital home and established her own residence. On June 28, 1989, Mr. Tracey filed a bill of complaint for a limited divorce on the grounds of desertion, and Mrs. Tracey later filed a countercomplaint for limited divorce on the grounds of constructive desertion. On October 31, 1990, Mr. Tracey filed a two count amended complaint for absolute divorce alleging desertion in one count and voluntary separation in the second count. Mrs. Tracey filed an answer in which she alleged constructive desertion and voluntary separation as grounds for absolute divorce.

In a judgment of absolute divorce dated December 17, 1990, the circuit court granted Mr. Tracey a divorce on the grounds of voluntary separation for one year and dismissed Mrs. Tracey's complaint for a divorce. The court did not Prior to the divorce, the parties agreed to an equal division of their marital assets, which included their marital home; a savings plan with Mr. Tracey's employer worth at least $54,000; a mutual fund valued at $5,854; life insurance policies with an aggregate value of $11,170; and $10,225 from the couple's automobiles.

                rule on desertion, the second count of Mr. Tracey's complaint.   The court awarded Mrs. Tracey $300 per month in indefinite alimony "because of her needs and the disparity between their [Mr. and Mrs. Tracey's] relative incomes."   The record showed that Mrs. Tracey, forty-six at time of trial, earned $15,381.88 in annual gross pay in 1989 from her full-time job as a payroll technician with the federal government.   The court awarded her the alimony upon condition that she give up her approximately $400 per month (or $4,800 per year) part-time job with McDonald's Corp., where she worked approximately twenty to twenty-five hours per week.   If Mrs. Tracey resumes that or any other part-time job, the court said Mr. Tracey could petition the court for modification of alimony based on change of circumstances.   In 1989, Mr. Tracey, forty-eight at time of trial, had annual gross earnings (including overtime) of $57,973.25;  and his earnings for 1990 were projected to be $60,292.18
                

On appeal, Mr. Tracey raises five issues for the Court's review:

I. Whether the trial court erred by refusing to consider appellee's income from her part-time job in deciding whether she was entitled to an award of indefinite alimony.

II. Whether the trial court erred by not considering the income that appellee would receive from the proceeds of the sale of the marital home.

III. Whether the trial court has the statutory discretion to make an award of indefinite alimony if the spouse seeking the award is self-supporting at the time of divorce.

IV. Whether the trial court erred in making an award of alimony that was conditioned on appellee quitting her part-time job and refraining from any employment in addition to her full-time job with the federal government.

V. Whether the trial court erred in finding an unconscionable disparity in the standards of living of the parties.

DISCUSSION

I AND IV

The divorce judgment of the circuit court ordered Mr. Tracey to pay indefinite alimony of $300 per month to Mrs. Tracey until the death of either party, her remarriage, further order of the court, or until Mrs. Tracey engages in part-time employment in addition to her full-time job with the federal government. The stipulation regarding part-time employment stemmed from the fact that Mrs. Tracey, in addition to her full-time job, also worked in a part-time position upon separating from her husband. The court, in deciding that she could not receive alimony if she continued the part-time job, said:

Neither of them during their lifetime had two jobs of employment. They each had one job. She had put down it was only temporary and that she did that to survive because she wasn't getting paid any support.... She is not required to work two jobs.... [I]f she continues to work [the part-time job], she is going to have to have it [the alimony] modified.

Maryland law empowers a trial court to award rehabilitative as well as indefinite alimony to an economically dependent spouse upon divorce. In making this determination, the court must follow the dictates of § 11-106 of the Family Law section of the Maryland Code. ² Mr. Tracey contends that the trial court committed reversible error when it refused to consider Mrs. Tracey's income from her part-time job in deciding whether to award indefinite alimony and when it awarded alimony upon condition that Mrs. Tracey discontinue her part-time employment. We disagree.

In reviewing alimony awards, "[w]e are aware that the trial court has broad discretion in setting an award of alimony ... and that an alimony award will not be disturbed unless the court's discretion was arbitrary or 'his judgment was clearly wrong.' " Benkin v. Benkin, 71 Md.App. 191, 205, 524 A.2d 789 (1987), quoting Brodak v. Brodak, 294 Md. 10, 28-29, 447 A.2d 847 (1982) (citations omitted). We agree with the trial court that an economically dependent party should not be forced to work two jobs in order to make ends meet, while the economically independent party is not required to work a second job merely because he earns more money. Evidence showed that Mrs. Tracey worked approximately twenty to twenty-five hours per week at her part-time job to earn a total of $21,649 from both jobs, while Mr. Tracey, who occasionally worked overtime, had projected earnings of $60,292.18 in 1990. Under Maryland's alimony statutes, which underwent major revision in 1980, a court cannot guarantee an economically dependent spouse after the divorce the same standard of living maintained before the divorce. The court, however, should ensure that equitable results flow from the divorce. We have reviewed the trial court's findings regarding the income and financial needs of both parties, ³ and it is clear that Mrs. Tracey would suffer a deficit each month without either the part-time job or the alimony. We believe that it would be unfair to require Mrs. Tracey, who was married to Mr. Tracey for twenty-seven years, to continue working two jobs in order to make ends meet. We therefore hold that the decision of the trial court not to include Mrs. Tracey's part-time income in its calculations was not clearly erroneous, and that the court correctly awarded alimony upon condition that she not work the extra job. As the trial court indicated, if Mrs. Tracey works another job, it then would open the door for Mr. Tracey to petition for modification of alimony on the grounds of change of circumstances.

II

The appellant contends that the trial court erred by failing to consider the income that Mrs. Tracey will receive from proceeds from the sale of the marital home. We see it differently. Evidence showed that the Traceys had equity in excess of $100,000 in their marital home, and that the parties had agreed to divide the proceeds from its sale equally between them. In deciding not to consider interest from the proceeds of sale as income to Mrs. Tracey, the court said: "I took into consideration that the house is going to be sold and divided. The receipts. That money I have not charged to them because I asked each of them and both of them indicated they intend to buy another house and that's going to be reinvested." The home had not been sold at the time of trial, and a trial court should not be compelled to consider income not yet in hand when calculating a party's income.

Mr. Tracey relies on Hull v. Hull, 83 Md.App. 218, 574 A.2d 20, cert. denied, 321 Md. 67, 580 A.2d 1077 (1990), as support for his contention that anticipated proceeds from the sale of the couple's home should be included as income to Mrs. Tracey. In Hull, the wife was self-supporting, even without including anticipated proceeds from the sale of the couple's island home, which was valued at $1,150,000. Id. at 225. Her portfolio, independent of anticipated assets from the sale, was valued at $598,960 and produced an estimated annual income of $45,271. The couple had agreed to divide the proceeds of the sale of their home equally between them, and each party was expected to receive $550,000. Hull is distinguishable from the instant case because Mrs. Hull, in stark contrast to Mrs. Tracey, was self-supporting, even without including the anticipated assets from the sale of the house. Though the Court acknowledged that Mrs. Hull had anticipated assets of $1.1 million, the appropriateness of including or excluding such assets as income to the wife was not examined in Hull. In the instant case, Mr. and Mrs. Tracey indicated that, once they disposed of their former residence, each would use the money to purchase his or her own home. There is no guarantee that the Traceys will receive market value for their house, and calculating income based on not-yet-obtained income would be counterproductive. When the home is sold, Mr. Tracey then may petition the court for modification of alimony due to change of circumstances if, in fact, there is such a change of...