Turrisi v. Sanzaro

• Decision Date: 01 September 1986
• Docket Number: No. 60,60
• Citation: 520 A.2d 1080,308 Md. 515
• Parties: Brian C. TURRISI v. Katherine M. SANZARO. ,
• Court: Maryland Court of Appeals

Page 515

308 Md. 515

520 A.2d 1080

Brian C. TURRISI v. Katherine M. SANZARO.

No. 60, Sept. Term, 1986.

Court of Appeals of Maryland.

Feb. 4, 1987.

Stephen A. Friedman (Shelly E. Mintz and Joseph Greenwald & Laake, P.A., on the brief), Hyattsville, for appellant.

Donna C. Aldridge, Hyattsville, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE and ADKINS, JJ.

ADKINS, Judge.

The questions presented in this case are

1. Whether appellee, Katherine M. Sanzaro, at a hearing in the Circuit Court for Prince George's County, waived any claim to immediate alimony? and

2. Do the provisions of Title 11, subtitle 1, of the Family Law Article empower a circuit court to reserve its jurisdiction over alimony?

We answer both questions in the affirmative.

Although the parties are not in total agreement as to the facts, there is little dispute about those bearing on the issues before us. Katherine Sanzaro and appellant, Brian C. Turrisi, are both medical doctors. They were married in June 1980. In September of that year, it was determined that Dr. Sanzaro had multiple sclerosis. The parties separated, finally, in May 1983. They had no children, and resolved virtually all issues arising out of their marriage by agreement. The unresolved issue was that of alimony for Dr. Sanzaro.

In June 1984 Dr. Sanzaro sued Dr. Turrisi in the Circuit Court for Prince George's County for a voluntary separation divorce. She requested indefinite alimony. Dr. Turrisi denied the voluntariness of the separation and filed a "Counter Bill of Complaint" for divorce on the ground of desertion. Later, he filed a "Supplemental Counter Bill of Complaint" in which he also requested a voluntary separation divorce. Dr. Sanzaro admitted the allegations of this pleading, but continued to assert her entitlement to alimony, asserting "she has a disease which prevents her from working on a full-time basis and may cause her to cease employment permanently at a future time. If she cannot be gainfully employed, she requires financial assistance, alimony, from [Dr. Turrisi]."

On 22 March 1985 the circuit court granted Dr. Sanzaro an absolute divorce from Dr. Turrisi. On 23 May it held a hearing on the alimony issue. At that hearing, testimony was produced as to the needs, resources, earnings, and earning capacities of the respective spouses. We need not review the details of that evidence. It is enough to say that both were then employed in their professions. Dr. Sanzaro, however, testified that her disease had required her to abandon the field of surgery. She had also ceased doing hospital work; she was handling an office family practice, working from two and one-half hours to four hours daily, for five days per week. She had to use canes to walk, could not walk up and down stairs, could not control her bowels or bladder, and needed special assistance and arrangements in order to conduct her practice.

As to the future, Dr. Sanzaro conceded that as a physician she could not say, "within the realm of reasonable medical certainty, when if ever" she would become totally disabled. Her treating physician, Dr. Anderson, also admitted that he could not state with precision just when total disability might occur. In his deposition he had suggested a period of from five to 25 years; in the circuit court he revised his estimate downward to from two to ten years based on more recent examinations of Dr. Sanzaro. He explained the progressive nature of multiple sclerosis, and opined that Dr. Sanzaro was "in the chronic progressive category in that she is tending to get worse in a very progressive manner, without many instances of anything we could point to as improvement." He noted that there is no known cure for multiple sclerosis. At another point he said

"And I would say, from my experience watching the progression of her disease in the areas that are being affected, affecting her legs, and to some extent her arms, especially her left arm, that she is going to be not only disabled, permanently and totally disabled in, by examination, but also in what she is able to do to try to support herself."

He went on to observe that "it is most probable that it [the onset of total disability] would be less than five years, that it is even probable that it would be less than two years."

Despite this gloomy prognosis, Dr. Sanzaro herself evidenced a courageous wish to be self-supporting and independent as long as she could. On her cross-examination by counsel for Dr. Turrisi, the following dialogue occurred:

"Q. Dr. Sanzaro, are you asking Judge McCullough to order your ex-husband to pay you alimony right now because you can't support yourself?

"A. Right now?

"Q. Yes.

"A. At the moment, no, I do not.

"Q. Okay. So--

"A. I am self-supporting.

"Q. At the present time you are self-supporting?

"A. As of today, yes.

"Q. Now, the--and you have been able to support yourself since the separation?

"A. Yes.

"Q. So the--what you want the Court to consider is if in the future you are unable to support yourself, to reserve alimony so that, if that eventuality occurs, at that time the Court can then order your ex-husband to pay you support?

"A. Future could be tomorrow, next week. Yes, I agree."

On the strength of this, the chancellor found that Dr. Sanzaro had declined an immediate award of alimony. On the authority of Quigley v. Quigley, 54 Md.App. 45, 456 A.2d 1305 (1983), he held he had no power to reserve the question of future alimony. Dr. Sanzaro appealed to the Court of Special Appeals. In an unreported opinion, Sanzaro v. Turrisi, No. 892, Sept. Term, 1985 (April 9, 1986), the intermediate appellate court recognized that Dr. Sanzaro's "testimony discloses that she was not seeking alimony" at the time of the circuit court hearing. Id., slip op. at 7. It nevertheless held that § 11-106 of the Family Law Article grants broad discretion to award indefinite alimony, and that Dr. Sanzaro's "self-claimed self-sufficiency" was but "one factor that would warrant against an award of indefinite alimony." Id., slip op. at 11. It vacated and remanded for the chancellor to consider other factors and then to decide whether to award alimony. Because of that decision, it declined to address the reservation of alimony question, although it expressed an inclination "to adopt the dicta of Quigley...." Id., slip op. at 12.

We granted Dr. Turrisi's petition for certiorari and for reasons we shall now explain, we reverse the judgment of the Court of Special Appeals.

Immediate alimony

The chancellor observed that "Dr. Sanzaro testified that she was not seeking alimony" at the time of the hearing "and that she was well able to support herself." Contrary to the view of the Court of Special Appeals, this statement did not relate merely to one of the alimony factors listed in § 11-106(b). The chancellor explained that he did not need to make any findings under that subsection because Dr. Sanzaro "is not seeking alimony at this time." This explicit finding of fact is one we cannot set aside unless it is clearly erroneous. Md. Rule 886. That it is not clearly erroneous is apparent from the testimony we have quoted at p. 1082, supra. The short of it is that Dr. Sanzaro expressly waived any award of immediate alimony. This she was entitled to do, ¹ and her testimony demonstrates that she did so knowingly and deliberately. And while it is true that her counsel continued to insist on immediate alimony, in a matter of this sort it is the client, not counsel, who decides what is or is not waived. See Sharrow v. State Farm Mutual, 306 Md. 754, 766, 511 A.2d 492, 498 (1986); see also Prate v. Freedman, 583 F.2d 42 (2d Cir.1978) (client retains ultimate authority over conduct of litigation). The chancellor did not err in refusing to award present alimony; the Court of Special Appeals erred in remanding for that purpose. Because of this holding, we must now consider the question the intermediate appellate court did not: the power of a circuit court to reserve alimony under the provisions of Title 11, subtitle 1 of the Family Law Article.

Reservation of alimony

In Maryland the "long-standing rule ... has been that the right to claim alimony is extinguished at the time of the severance of the marital relationship." Altman v. Altman, 282 Md. 483, 490, 386 A.2d 766, 770 (1978). That is so because Maryland courts have viewed alimony as an incident of the marriage; as a consequence, the right to claim alimony ordinarily could not survive the dissolution of the marriage. Id. at 492, 386 A.2d at 771; Brewster v. Brewster, 204 Md. 501, 105 A.2d 232 (1954); Staub v. Staub, 170 Md. 202, 183 A. 605 (1936); Marshall v. Marshall, 162 Md. 116, 159 A. 260 (1932); Meyer v. Meyer, 41 Md.App. 13, 394 A.2d 1220 (1978), cert. denied, 284 Md. 746 (1979); Flood v. Flood, 16 Md.App. 280, 295 A.2d 784 (1972); Abell v. Abell, 12 Md.App. 99, 277 A.2d 629, cert. denied, 263 Md. 709 (1971); Reed v. Reed, 11 Md.App. 396, 274 A.2d 652 (1971). ² As a consequence, the Maryland cases hold that when a Maryland court grants an absolute divorce, with no award of alimony, and "with no reservation of power in respect to the allowance of alimony thereafter, not only are the marriage ties completely severed, but the man is relieved of the obligation of a husband to support his wife." Marshall, 162 Md. at 122, 159 A. at 262.

It was, however, common practice for the equity courts to reserve jurisdiction over alimony, even though none was awarded at the time of divorce. 2 J. Bishop, Marriage, Divorce, and Separation, § 875 (1891); 2 W. Nelson, Divorce and Annulment § 14.21 (2d ed. 1961 Rev.). This practice was well recognized in Maryland. See, in addition to Brewster, Staub, Marshall, Meyer, Flood, Abell, and Reed, such cases as Brodak v. Brodak, 294 Md. 10, 447 A.2d 847 (1982); Rhoad v. Rhoad, 273 Md. 459, 330 A.2d 192 (1975); Buehler v. Buehler, 229 Md. 317, 182 A.2d 877 (1962); Faulkner v....