Whittington v. Whittington
| Decision Date | 04 January 2007 |
| Docket Number | No. 32, September Term, 2006.,32, September Term, 2006. |
| Citation | 914 A.2d 212,172 Md. App. 317 |
| Parties | Scott A. WHITTINGTON v. Christina WHITTINGTON. |
| Court | Court of Special Appeals of Maryland |
Stephen R. Robinson (Daniel A. Farlow, on brief), Towson, for appellant.
Christina M. Whittington, Deerfield Beach, pro se.
Panel MURPHY, C.J., SALMON, EYLER, and DEBORAH S., JJ.
In the divorce action between Scott Whittington ("Scott"), the appellant, and Christina Whittington ("Christina"), the appellee, the Circuit Court for Anne Arundel County granted the parties a divorce and granted Christina indefinite alimony, counsel fees, a monetary award, and an interest in the marital portion of Scott's two pensions. The court also ordered Scott to maintain a survivor benefit for Christina on one of his pensions, granted her an interest in the survivor benefit, and ordered the division of certain jointly held marital property.
Scott noted an appeal, presenting six questions,1 with numerous sub-parts, for review. We have rephrased them as follows:
I. Did the trial court err or abuse its discretion in granting Christina indefinite alimony of $1,500 a month?
II. Did the trial court err or abuse its discretion in valuing certain marital property and in equitably distributing the marital property?
III. Did the trial court err in awarding Christina a portion of the survivor benefit of Scott's Toyota pension?
IV. Did the circuit court make inconsistent findings of material fact warranting a reversal?
V. Did the circuit court err by failing to reconsider the alimony and counsel fee awards after amending the judgment to grant Christina an award of a portion of the Toyota pension survivor benefit?
VI. Did the circuit court err in awarding counsel fees without making any factual findings as to the reasonableness of the fees?
For the following reasons, we shall affirm the circuit court's judgment of divorce but otherwise vacate the judgment and remand the case for further proceedings not inconsistent with this opinion.
The parties were married on July 17, 1982, when Scott was 21 years old and Christina was 23. By then, they had been living together for three years; Scott had graduated from high school and had earned his Associates Degree in information systems from Anne Arundel Community College; and Christina, who also was a high school graduate, had become certified in typing and stenography by Fleet Business School.
In 1985, the parties purchased a home in the Annapolis area. They lived there until they separated on December 26, 2003.
By mutual agreement, the parties decided not to have any children, and none were born of the marriage.
For the first five years of their marriage, Scott worked for the State of Maryland, in the information systems field. In 1987, he was employed by Toyota, also in the area of information systems. He has worked for Toyota ever since.
For most of the marriage, Christina worked full-time as a typesetter and production artist in the graphic arts industry. In 1999, she decided to cut her hours to about 30-35 per week, due to job stress, "excessive overtime," and wrist and elbow problems. She began to work "flex time," meaning that, as long as she put in the requisite number of hours per week, she could work non-traditional hours, work from home, and work on weekends. In late 2003, after the parties separated, Christina's employer, Pro Graphics, asked her to work traditional hours.2 She complained that she could not do so, because a traditional schedule interfered with caring for her dog. She was fired in June 2004 for not changing her work schedule.
The parties accumulated significant retirement and non-retirement assets over the course of their marriage.3 Their lifestyle was comfortable, but not extravagant.
By all accounts, the parties' marriage was satisfactory for the first seven years. In 1989, Scott's mother died, and he went into a depression. Christina had been in counseling for depression herself, and did not have the emotional reserve to deal with Scott's state of mind. The parties agree that this marked the beginning of serious problems that plagued their marriage until their eventual separation, 14 years later.
According to Scott, the parties ceased having sexual relations in 1990. By the next year, there was a major "rift" in their relationship. According to Christina, she and Scott last engaged in marital relations in 1996. Christina acknowledged that, in her mind, the marriage was over in 1995. By 2000, the couple did not sleep in the same bed. Even before then, they functioned on completely different schedules. Scott got up early and went to bed early, and Christina slept late and stayed up late.
Even though their married life had deteriorated, the parties continued to live together as friends. They went on two vacations a year with members of Christina's family, traveled some, shared their finances, and made investments. They participated in different hobbies, however, and interacted very little at home.
In April 2002, Christina went on a business trip to Florida, to make a presentation for a company that later became Taylor & Francis. At that meeting, she was introduced to James Miller ("James"), a graphic designer for the company. They struck up a friendship that immediately became romantic and sexual. From then on, Christina traveled to Florida regularly to spend time with James.
About a year and a half later, in late 2003, Scott became romantically involved with Lisa Riseau ("Lisa"), who he had met through his hobby of dog agility training. Scott and Lisa became sexually involved in late November 2003.
Sometime in early December 2003, Scott and Christina had a frank conversation in which they revealed their romantic relationships with other people. They each expressed the desire to live with the person they were romantically involved with, and to end their marriage. Neither one was upset about the other's extramarital affair, because each recognized that their marriage had long before become one of convenience. They wished each other well in their new relationships.
On December 26, 2003, Scott moved out of the marital home and into Lisa's house. Christina remained living in the marital home for one year. She continued to travel to Florida frequently to see James. In December 2004, she moved to Florida, and she and James rented an apartment together.
From the time she was fired, in mid-2004, until the fall of 2005, Christina continued to do freelance work for Pro Graphics. Upon relocating to Florida in December of 2004, Christina began freelancing for Taylor & Francis as well. By the time of the divorce, she was working exclusively for Taylor & Francis on a freelance basis.
During the parties' separation, until the marital home was sold in April 2005, Christina and Scott each paid half of the mortgage and utility bills. Scott paid for maintenance on the home, lawn care, and the monthly home equity loan payments. Scott also continued to maintain Christina's health insurance and car lease through his employer. After moving to Florida, Christina continued to pay her share of the mortgage and utilities. She split costs associated with her new residence with James.
The sale of the marital home netted a profit of $203,385, which was deposited in an escrow account.
On January 28, 2005, in the Circuit Court for Anne Arundel County, Christina filed a complaint for absolute divorce on the ground of a voluntary separation of more than one year. She requested alimony, both pendente lite and indefinite, continued health insurance coverage through Scott's employer, a monetary award, and attorney's fees and litigation expenses, including expenses for pendente lite proceedings. Scott filed an answer admitting the ground for divorce, but denying that Christina was unable to support herself and needed alimony. Scott requested that the court deny all relief requested by Christina. The court denied Christina's pendente lite alimony and counsel fees request.
In June of 2005, Scott and Lisa purchased a house. Scott took a $40,000 loan from his Toyota 401(k) account to pay his share of the down payment. (By the time of trial, he had repaid all but $25,218 of that sum.)
The case went to trial on February 8, 2006. The parties introduced their Joint Statement of Marital Property pursuant to Rule 9-207, as a joint exhibit. Each party introduced numerous financial records.4
Scott and Christina testified and Christina's mother, Isabel Matiz, testified to corroborate the ground for divorce. The parties stipulated that, if called to testify, the vocational expert witness retained by Scott would opine that Christina had the present ability to earn $35,000 annually, in full-time employment. At the conclusion of testimony, counsel for the parties delivered closing arguments, and the court held the matter sub curia.
On February 22, 2006, the court issued a memorandum opinion and order granting Christina an absolute divorce and a monetary award of $30,531.60, and awarding her indefinite alimony of $1,500 per month and $7,500 in attorney's fees.
Within ten days, Christina filed a motion to alter or amend asking the court, among other things, to award her an interest in the survivor benefit of Scott's Toyota pension. Scott opposed the motion. After a hearing, the court granted Christina's motion and entered an amended judgment awarding her 40% of the survivor benefit of the Toyota pension, payable on an "if, as, and when" basis, pursuant to the Bangs formula.5
The amended judgment was entered on June 1, 2006. On June 14, 2004, Scott noted a timely appeal.
We shall recount additional facts as necessary to our discussion of the issues.
Scott contends the circuit court erred in awarding Christina indefinite alimony and that, assuming arguendo that indefinite alimony was appropriate to award, it erred in...
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