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Hiltz v. Hiltz

Court of Special Appeals of Maryland

September 3, 2013


Graeff, Hotten, Thieme, Raymond G., Jr. (Retired, Specially Assigned) JJ.


Hotten, J.

In this divorce action between Gary Hiltz ("Gary"), the appellant-cross-appellee, and Melissa Hiltz ("Melissa"), the appellee-cross-appellant, the Circuit Court for Baltimore County granted the parties a divorce, and granted Melissa indefinite alimony, a monetary award, an equal interest in the marital portion of Gary's two pensions, [1] and attorneys' fees. Additionally, the court ordered the marital home be held in trust until its sale and that the proceeds be equally divided between the parties. Finally, the court ordered the sale of the one-third interest the parties maintained in Delaware real property, and that those proceeds be equally distributed between Melissa and Gary.

Gary timely noted an appeal to this Court. In response, Melissa filed a cross-appeal. In sum, both parties presented five questions for our review. We have consolidated, rephrased, and reorganized them as follows:[2]

1.Whether the circuit court erred when it determined that Gary was required to present clear and convincing evidence to rebut the presumption that Melissa was permanently disabled and whether it equally abused its discretion in awarding indefinite alimony based on that presumption.
2.Whether the circuit court erroneously calculated the amount of indefinite alimony awarded to Melissa.
3.Whether the circuit court erred in granting Melissa a monetary award in the amount of $88, 848.50 and additionally erred in its denial of Melissa's request for a finding of dissipation of marital property.
4. Whether the circuit court abused its discretion in awarding Melissa attorneys' fees in the amount of $10, 000.

For the reasons outlined below, we affirm the circuit court's judgment of divorce. Because we conclude, however, that the court applied the incorrect standard in its finding of permanent disability, thereby abusing its discretion in awarding indefinite alimony, we shall vacate the remaining judgments and remand the case for further proceedings consistent with this opinion.[3]



After courting for approximately two years, Melissa and Gary were married in May 1990. The couple moved into a modest townhouse, purchased prior to their nuptials in Baltimore County, Maryland. Gary subsequently adopted Melissa's son from a previous marriage, named Jonathan Hiltz ("Jonathan"), born in 1986. Jonathan was approximately three and one-half years-old when Melissa and Gary were wed.

At the inception of their marriage, Melissa was working for the American Neurological Association as a medical secretary. She had previously obtained her high school diploma and had attended a few community college classes in medical terminology and typing. Nonetheless, both she and Gary decided that Melissa would resign from her fulltime employment, and find part-time work closer to home in order to assume the role of primary caretaker and homemaker.[4] Gary ardently believed the decision would better serve the family

if she didn't have to work full-time because she had a little bit more on her at home than [Gary] did . . ., [because] she took care of more of the inside of the house[.] [Gary] just felt it would be better for her[, ] [because they] had a son . . . . Instead of putting him in daycare, [Gary] wanted him to be raised by [Melissa and him] instead of some stranger.

In addition to caring for the parties' son, the home, and working part-time, Melissa managed the family's financials and did most of its banking. Despite Melissa's history of fibromyalgia, [5] managed by prescription medications, she lived a fairly active lifestyle. She enjoyed fitness and the outdoors and partook in hiking, swimming and exercise videos. Further, she would take their son, Jonathan, to play laser tag. Gary, on the other hand, assumed the role of primary financial provider, working as a journeyman electrician and actively participating in the electrical union.

Together, the parties lived a fairly comfortable middle-class lifestyle. Although Melissa and Gary did not particularly worry about their finances, they used their incomes and savings conscientiously. Indeed, the parties satisfied the thirty-year mortgage on their townhouse in less than ten years. Additionally, if Melissa and Gary used credit cards, they would satisfy the debts within a month's time. Melissa and Gary "never had outstanding debts[, ] and [they] had no car loans." Nonetheless, Melissa and Gary were able to eat at restaurants several times a week, and Melissa could occasionally go shopping without worry.

After satisfying the mortgage on their townhouse, Melissa and Gary purchased a second home in Baltimore County, Maryland for $170, 000 cash from Gary's parents in the summer of 2004. In addition, the parties amassed approximately $200, 000 in a joint savings account.

Notwithstanding these accomplishments, Melissa and Gary began experiencing problems within the first five years of their marriage. Specifically, Melissa disapproved of the manner in which Gary disciplined Jonathan for any wrongdoing. At trial, Melissa characterized the early conflict in their marriage as follows:

There were a lot of issues. They started pretty shortly after we were married and we moved in as a family. There were issues surrounding our son[, ] Jonathan[, ] and how he was disciplined. Gary would get very angry and very upset with any, it seemed like small things that Jonathan would do. Gary would start hollering at [Jonathan, ] and he would cry[.] I would step in and ask [Gary] to please control [his] temper . . . and he would just turn his anger on me, telling me that Jonathan and I were ganging up on him.

As a consequence, Melissa and Jonathan moved out of the marital home for a period of a week, moving in with Melissa's parents. Following a few telephone conversations, Melissa elected to return to the marital home with Jonathan. Thereafter, Melissa and Gary sought counseling from their Lutheran pastor.

Unfortunately and shortly after Melissa and Jonathan moved back to the second home in Baltimore County, Melissa suffered a serious back injury in April of 2004. Melissa described the injury during her direct examination at trial:

Okay. Well . . . I woke up one morning and felt very stiff in my back[, ] and I stretched and[] overstretched and felt a popping, [and I] had immediate pain[.] [I] was in pain for several days after that[, ] and I went to see my doctor who was treating me for fibromyalgia[;] and[, ] he ordered MRI's[.] [I]t showed a ruptured disc in my lumbar back and a ruptured disc in my thoracic, which is my mid-back[.] [The MRI] also [revealed] some spinal stenosis and arthritis in my hips and shoulders and back.

Melissa's injury exacerbated her fibromyalgia. As a result, Melissa's ability to engage in the everyday physical activities prior to her injury was severely limited. She could neither play with her son the way she had previously, nor care for the marital home in the same manner she did prior to her injury. According to Melissa, the pain became increasingly unbearable, resulting in Melissa leaving her part-time employment. As a consequence, Gary suggested to Melissa that she apply for Social Security disability. Melissa's constant back pain, in addition to the death of both her grandmother and father, caused her to slip into a deep depression.

Thus, when Gary came home after a day of work and criticized Melissa for her failure to maintain the home the way she used to and for not preparing his dinner, she resented it. At trial, Gary represented the developing tension between Melissa and he as follows:

It started to get a little bad when we moved into . . . 5210 ½[, ] because she started to develop back problems and they prescribed [pain medication] and sleeping pills and muscle relaxers[. S]he became real sensitive when I would say something to her about cleaning the house. She was letting things go to where she wasn't cleaning the house like she was before. And I would come home a lot and she would just be laying on the couch. And I mentioned to her that she, I wish I could lay down on the couch all the time. I mean, I would come home and she would be on the couch all the time[, ] and I finally would say something[] because it got to me after a while when the house was getting real messy and she wasn't cooking for me as much. She would make me wait until 7:00 or 8:00 at night to eat, knowing that I would get home like around 4:00.

The arguments between the parties worsened, and Melissa informed Gary that she was leaving in the spring of 2005. Gary, however, prohibited her from leaving the home. As a result, Melissa telephoned 911 emergency for assistance. Thereafter, she was escorted from the marital home by police.

Melissa and her son moved into her mother's home, located in Dundalk, Baltimore County, Maryland.[6] When she moved out of the marital home, Melissa withdrew approximately $103, 000 from the parties' joint savings account. She believed that taking half of their savings to support herself during the period of their separation was appropriate. Because Melissa's mother had moved to Florida, Melissa was responsible for paying for all the utilities associated with her mother's residence and also for placing food on the table for herself and her, then, nineteen year-old son. Large portions of the money she withdrew, however, would later be used towards efforts to save the family's dog, to assist Jonathan with his legal troubles, and to partially support Jonathan and her grandchild.

After learning that Melissa had withdrawn the funds from their joint savings account, Gary placed the remainder of the monies in a separate account in his name, listing his parents as the beneficiaries. Nonetheless, Gary made efforts to reconcile with Melissa. He would telephone Melissa – albeit several times a day – and additionally visited Melissa, unannounced, at the Dundalk home. Initially, Melissa rejected Gary's efforts, advising him to seek psychiatric and psychological care for what she characterized as his anger management problems. Eventually, Gary acquiesced to Melissa's request. Later, Melissa and Gary resumed marital relations, and Gary would visit Melissa at her Dundalk address for a period of approximately three years. In late 2007, Melissa and Gary agreed to fully reconcile their conflicts and that Melissa would return to the marital home.

Shortly thereafter, the parties went on a "second honeymoon" to Canada during the winter of 2008. Overall, Melissa and Gary enjoyed the trip, but the conflict between them resumed. The ride home had exacerbated Melissa's back pain. Gary ignored her requests to stop and continued driving until the parties reached home. Thereafter, Melissa questioned whether Gary had, indeed, undergone the transformation he had alleged to her.

In June of 2008, Melissa left the marital home one final time. At trial, both parties agreed that the circumstances leading to Melissa's final departure premised on utility bills relating to the Dundalk address. Gary began arguing with Melissa; and, as a consequence, her mother stepped in to defend her. Melissa briefly described the circumstances which caused her final departure:

My mother and her husband were going to come up from Florida to visit. Originally, they were supposed to stay at the Page Drive address, which was where she had been living and my son was living there since I was living at Wilkins Avenue. My son smokes. They didn't want to stay at the house because of the smoking[. S]o Gary and I, I talked to Gary and we agreed that they could spend the night, you know, a couple nights with us. And while we were there, several times he had done things, said things to me that my mother didn't like. I was sick and there was an incident where he was outside trying to change a light on a lamp post outside. I told him that I was sore, I couldn't do it. I, my mom went out to do it[, ] and he came in and was mad at me and why, you know, you can't do that, you should be able to do that. The final thing was, I had some mail that had come in from the Page Drive address. He knew I was still paying the bills at Page Drive [the Dundalk address] and he tried to take the bill from me. I didn't want him to take the bill. We got into an argument over that[, ] and he started again hollering at me and, you know, doing what he normally did, being berating and name calling[;] and my mother came out[, ] and she just stepped in, just like I had done with, you know, Jonathan, now she's doing it with her child. She stepped in and told him not to talk to me that way[, ] and he got angry at her and told her to get out[, ] and I said, ["] It's okay, Mom, you know, go[, ] and I'm going to go with you[."] [A]nd that was when I left.

Thereafter, Melissa moved back into the Dundalk residence, where she would remain for an additional two years before subsequently filing her complaint for absolute divorce on July 14, 2010.

After a two day trial commencing on July 25, 2011, the circuit court issued its oral opinion on August 4, 2011. The court granted a judgment of divorce and granted Melissa indefinite alimony, a monetary award, an equal interest in the marital portion of Gary's two pensions, [7] and attorneys' fees. In addition, the court further ordered the marital home be held in trust until its sale and that the proceeds be equally divided between the parties. Finally, the court ordered the sale of the one-third interest the parties maintained in Delaware real property and that the proceeds be equally distributed between Melissa and Gary. Thereafter, Gary filed a motion for new trial on August 12, 2011. He argued that the circuit court's finding of disability was erroneous because it contravened the weight of the evidence presented at trial. While Gary's motion was pending before the circuit court, he noted an appeal to this Court on September 2, 2011. In addition, Gary filed an amended motion for new trial pursuant to Maryland Rule 2-333 on August 19, 2011. Concomitantly, Melissa filed a petition for contempt of court against Gary for failing to adhere to the circuit court's judgment of August 16, 2011. She additionally noted her cross-appeal to this Court on September 15, 2011. After reviewing the parties' petition and amended motion, and after considering arguments of counsel, the circuit court denied Gary's amended motion for new trial and sanctioned him with commitment to the Baltimore County Department of Corrections on November 14, 2011.[8]

Additional pertinent facts with be provided infra as necessary to resolve the issues presented.



(A) Whether The Circuit Court Abused Its Discretion By Erroneously Finding That Melissa Is Permanently Disabled And By Awarding Melissa Indefinite Alimony.

In his first assignment of error, Gary avers that the circuit court erroneously found that Melissa was permanently disabled by relying solely on letters indicating an award of disability benefits and wrongly awarded her indefinite alimony. Specifically, Gary contends that the court, in effect, concluded that Melissa was disabled without evidence to support such a determination and improperly created a higher burden of proof to rebut Melissa's assertions that she was disabled on the basis of her receipt of social security benefits. He further argues that such a finding "substantially affected" the court's required consideration of Sections 11-106(b) and (c) of the Family Law Article's factors within its alimony determination and, thus, resulted in an erroneous award of indefinite alimony. We agree.

(1) Gary's Contentions Are Properly Preserved For This Court's Review.

Because this Court ordinarily "will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[, ]" Md. Rule 8-131(a), [9] we preliminarily address the issue of preservation. That the issue appears to be plainly raised in or decided by the court is a matter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice. Medley v. State, 52 Md.App. 225, 231 (1982) (discussing Maryland Rule 8-131(a)'s predecessor, Md. Rule 1085). Thus, when a party fails to draw the court's attention to a claimed error and the court fails to decide the issue, the party is estopped from obtaining review of the issue on appeal. In that regard, Melissa contends that the court's disability and indefinite alimony ruling are foreclosed from our review because Gary failed to raise any objection to the admission of two letters documenting an award of disability benefits from the Social Security Administration. As explained, infra, Melissa's assertions are misconceived. Therefore, Gary's contentions that the circuit court erroneously found Melissa permanently disabled and wrongly awarded her indefinite alimony are properly before us for our consideration.

To be sure, no objection was raised when Melissa offered into evidence her Social Security Administration notices of disability benefits awards. Gary never quarreled with their admission. Rather, Gary's contentions are premised on whether Melissa satisfied her burden of proving her permanent and total disability. These contentions were debated below at great length through the admission of conflicting evidence and argument of counsel.

At the close of the two-day trial, Melissa's counsel argued that an award of Social Security disability benefits to Melissa created a nearly irrebuttable presumption that Melissa was, in fact, disabled, therefore lacking the capacity to work and earn any additional income. Specifically, counsel asserted:

Your Honor, this is a case, I think it's clear that it's a matter of he said, she said, who's telling the truth. I mean, according to [Gary], my client is working out during this time and she says she's not able to hardly clean the house and she's boxing and she's riding a bike, doing push-ups, etcetera, three times a week at home and at the gym. So their testimonies couldn't be more diametrically apart than what it is. I believe my client is a very credible witness. We have an individual here that up until spring of 2004, she was leading a, living a healthy life. They were having problems in their marriage. She got, she hurt her back through no fault of her own. She got depressed. It got so bad that she was not able to work. She did file for social security disability. [Gary] even encouraged her to do that. She was granted that social security disability. As you know, the [c]ourt, judicial notice, you have to be totally disabled to be eligible to receive that. She had to go through a whole process, trial and medical records, etcetera. Through that process she was found to be totally disabled. I think [Gary] here is trying to retry that case. He hasn't presented any evidence to the contrary. His only evidence is his testimony, which, to me, lacks a lot of credibility, that she's been able to do all these things.

(emphasis added).

In response, the circuit court asked both parties if there was any authority supporting Melissa's assertion that no further evidence of physical or mental impairment was required to support a finding that she was totally and permanently disabled. The court unequivocally inquired:

[Are there] any cases that you can point me to, any Maryland cases that discuss the, the effect of a social security disability finding in a case like, in, in a case like, is there a presumption of correctness, is there no presumption or correctness, is there, is it simply evidence[?]

Thereafter, during the following colloquy, the court expressed concerns regarding the lack of medical evidence to support Melissa's ...

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