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Abdullahi v. Zanini

Court of Special Appeals of Maryland

June 26, 2019

ZEYNAB ABDULLAHI
v.
GIANNI ZANINI

          Circuit Court for Montgomery County Case No. 124133-FL

          Fader, C.J., Graeff, Eyler, James. R. (Senior Judge, Specially Assigned), JJ.

          OPINION

          GRAEFF, J.

         Zeynab Abdullahi ("Wife"), appellant, challenges the September 4, 2017, Order of the Circuit Court for Montgomery County, and the November 29, 2017, Amended Order, which granted her an absolute divorce from Gianni Zanini ("Husband"), appellee, and divided marital assets. Wife presents multiple questions for this Court's review, [1] which we have revised as follows:

1. Did the circuit court abuse its discretion in granting the monetary award and dividing the marital property?
2. Did the circuit court abuse its discretion in declining to award wife attorneys' fees?
3. Did the circuit court err in failing to grant an absolute divorce on the grounds of adultery?

         For the reasons set forth below, we shall affirm, in part, and vacate, in part, the judgment of the circuit court and remand for further proceedings consistent with this opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         I.

         Background and Marriage

         Wife was born in Somalia and moved to the United States in August 1977. She met Husband in 1986 while they were attending school in California.[2] They were married in a religious ceremony in California in 1986, and again in a civil ceremony in 1987 in Virginia. During the marriage, Wife and Husband had two children: Ebyan and Amanle, both of whom are now over 18 years old.

         On January 5, 1987, Husband received a job with the World Bank, and he and Wife moved to the Washington, D.C. area. Wife initially worked for Bechtel Eastern Power, but she left her job to pursue a master's degree in energy systems at the University of Maryland. In 1995, Wife began working for the United States Nuclear Regulatory Commission. In 1998, the parties purchased a home in Maryland.

         Husband's work at the World Bank required that he travel frequently. Husband testified that, when he was home, he would participate in running the household, take the children to their activities, and go to school meetings. Wife testified that when Ebyan was young, Husband was involved in taking her to various activities, and he cooked for the family. At some point, though, Husband stopped helping to maintain the home.

         In December 2010, Husband retired from his job at the World Bank. He testified that he retired because his department at the World Bank was phased out. He received a separation package and was permitted to work as a consultant.

         In early 2011, Husband approached Wife to discuss moving to Italy for a year. Part of his separation package with the World Bank "was tied" to him going to Italy. From summer 2011 to summer 2012, the parties and their children resided in Italy.[3]

         Wife returned to work on August 1, 2012, and Husband took two additional trips in 2012. In 2013, Husband took motorcycle trips across the United States, and he took trips to Italy and Southeast Asia. Prior to Husband leaving for his trips in July 2013, Wife requested that they attend marriage counseling together. Husband attended two sessions, and he then returned to his travels. After Husband returned from his travels at the end of October 2013, Wife found Viagra, Cialis, and other "performance enhancers" in Husband's luggage.

         At the end of 2013, Wife was told by her doctors that she needed surgery. Husband was traveling at the beginning of 2014 when Wife was initially scheduled to have the surgery, so she postponed it until April 2014. Wife asserted that Husband was present after her surgery, but "he did not do anything" for her.

         In June 2014, Wife requested Husband to attend marriage mediation. He refused. Husband resumed traveling in June 2014 and returned in September 2014.[4] When wife checked their laptop upon Husband's return, she found links to dating and escort sites, emails to "sex sites," and pictures.

         II.

         Commencement of Divorce Action and Subsequent Filings

         In September 2014, Wife decided to pursue a divorce, and she presented Husband with a settlement agreement. On November 25, 2014, following unsuccessful settlement negotiations, Wife filed a Complaint For Absolute Divorce, Child Support & Related Relief, citing adultery as the ground for divorce, alleging dissipation of marital funds by Husband, and requesting a division of marital assets and attorneys' fees. On December 29, 2014, Husband filed his Answer and Counterclaim, in which he alleged desertion as grounds for divorce and admitted to committing adultery after June 14, 2014. In April 2015, Wife and Amanle left the marital home that was purchased in 1998 and moved to an apartment.

         Each party amended their pleadings more than once. On June 3, 2015, Wife filed a Second Amended Complaint for Absolute Divorce, Alimony/Spousal Support, Custody, Child Support & Related Relief. Wife made requests for custody and child support, as well as requests for a monetary award, a portion of Husband's pension, and attorneys' fees.

         On June 29, 2015, the circuit court held a merits trial regarding custody of the minor child, Amanle.[5] On August 18, 2015, the court issued a Custody Order, based on an agreement by the parties, awarding Wife primary physical custody and joint legal custody, with Wife having tie-breaking authority. On July 7, 2015, a magistrate conducted a hearing as to child support issues. Child support was awarded, but the record indicates that it ended when Amanle reached the age of 18 and completed high school.[6]

         On November 14, 2016, Husband filed his Third Amended Counter-Complaint for Absolute Divorce and for Other Relief. Husband requested, among other things, that he "be granted an absolute divorce from [Wife] on the ground of a separation exceeding one year in duration," and that he "be awarded attorney's fees and legal costs incurred by him in connection with this matter."

         III.

         Trial

         Trial was scheduled to begin April 4, 2016, but counsel for Husband moved to strike his appearance and requested that the trial be postponed so that Husband could obtain new counsel. The court postponed the trial to June 28, 2016.

         On June 28, 2016, the docket entries indicate that the court again postponed the trial because no judge was available. The court postponed trial to December 12, 2016.

         On December 12, 2016, trial began. Although it was scheduled as a three-day trial, it continued for seven days, ending June 1, 2017.

         The court bifurcated the issue of attorneys' fees and the merits, hearing argument on attorneys' fees first. Counsel for Wife argued that Husband was "both a cheat and a liar," and his lies forced wife to "expend significant amounts of time and attorney fees actually getting to the truth." He stated that any fees incurred after April 4, 2016, should be borne by Husband, who caused a postponement of the merits trial, noting that the judge who granted the continuance advised that Husband "would be chargeable for some of the additional expenses" incurred.

         Addressing the merits of the suit, counsel for Wife stated, in pertinent part:

As Your Honor knows, the World Bank pension cannot be divided. The World Bank doesn't honor state orders, but they will divide his pension by way of a spousal support order, and we will provide the Court with that form, and we would ask the Court to award [Wife] one-half of the World Bank pension. We're also asking the Court [to] transfer the marital home to [Wife], and the reason for that simply is because as a result of this litigation, [Wife] has spent approximately $350, 000 in counsel fees, the vast majority of which were all precipitated by [Husband's] behavior.[7]

         Counsel also requested that the court reimburse Wife for all marital funds that Husband used "to pursue his girlfriends, to pursue his vacations, to pursue his motorcycles and various trips, et cetera," and he asked that the court transfer ownership of a Nissan Murano to Wife. Counsel requested that the court order that the contents of the former marital home be sold and the proceeds allocated between the parties and that the court award Wife attorneys' fees.

         Husband's counsel stated that Wife's opening statement was more about the attorneys' fees than the facts of the case. He stated that, although the amount of attorneys' fees was unfortunate, "[w]hen you choose [to spend] money to have a PI to get adultery on someone who has admitted it, these are your choices."

         On the merits, counsel noted that everyone agreed that there had been a one-year separation. He stated that there was no proof of adultery "inside of Maryland."

         Counsel discussed the parties' marital and nonmarital property. He noted that the parties had received loans from Husband's family in the amount of $350, 000, and Husband cashed in a third of his pension to pay off the mortgage on the marital home.

         Regarding Wife's claims that Husband dissipated marital assets, counsel for Husband stated:

You're seeing dissipation claims made on credit cards on loans. They're not even assets, and then what you're looking at when you're looking at these accountings, I mean you're looking at ATM charges, like $2. The rules about dissipation or the definition of it is the wasting of marital property or the devaluing of bank accounts to exclude them from division in a divorce. I don't think you're going to find any of that for either one of these parties.

         Counsel stated that Husband's payments to other women did not exceed $10, 000, and if the court thought it was dissipation, he would pay it back.

         Counsel stated that the parties' main assets were Husband's World Bank pension, Wife's FERS and a TSP pension, the house, which was "debt free and is ready to be sold," and some vehicles. Counsel stated that it was Husband's position that "each of these parties is stuck with their own attorney's fees."

         A.

         Wife's Testimony

         Wife testified that she and Husband had not cohabitated under the same roof since April 2015 and there was no hope of reconciliation. Wife's annual income from her job at the Nuclear Regulatory Commission was $153, 702, and her official position was Senior Staff Engineer.[8] She wanted the court to award her the marital home, which she believed to be worth $750, 000, [9] and transfer ownership of the Nissan Murano, titled in Husband's name, to her. Other than those two items, she requested that the court grant her a monetary award in "an amount equalizing the difference between the value of the assets in [her] husband's name and the value of the assets in [her] name." She asked that the court award her "one half of the value of the World Bank pension."

         Wife testified that Husband's parents had given them $237, 000 to help them buy the marital home, and they had given them $100, 000 on another occasion. When Husband retired, he "cashed out . . . approximately a third of his pension," amounting to approximately $800, 000, which was used to pay off the mortgage on the marital home and other family debts.

         Husband had two motorcycles that Wife contended constituted marital property because Husband purchased them with marital funds. Wife estimated that the value of these motorcycles was $8, 565 and $7, 215, and she used sources such as Craigslist and Kelly Blue Book to arrive at those values.

         The parties owned several properties; Wife's properties were in Somalia and Husband's were in Italy. Wife stated, in the Joint Statement of Parties Concerning Marital and Non-Marital Property (the "Joint Statement"), [10] that the Somalia properties were worth $0. At trial, she explained that the properties had no value because Somalia was a "war- torn country." On cross-examination, however, Wife stated:

The problem is not that it's worthless, it is, the problem is, this is Somalia where things are being blown up and my parents died without their property, and in my belief, maybe we will die before we get hold and go back there. So, that is one aspect of it.
The second aspect of it is the fact that I am one, the way, my father did not leave or my mother or so, did not leave a will, so my share would go by the Islamic law, heritage law in which case I'll get one sixteenth of that price. . . .

         Wife valued one of the Italy properties at $110, 000, whereas Husband valued it at $80, 000, and she valued the other Italy property at $375, 200, whereas Husband valued it at $202, 303. When asked how she arrived at the values for the Italy properties, Wife stated:

I looked at the properties' listing in the area as well as knowledge that when I was there, there were properties that were being sold there and the location as we say in (unintelligible) real estate, it's location, location, location. So combining all that thought plus a, what was a similar apartment listed there is what I used to come up with the value.

         Wife also testified regarding two accounts, an Allianz Bank Investment Account, and an Allianz Bank Checking Account. Wife believed that these two accounts, titled in Husband's name, constituted marital property because she and counsel determined during discovery that Husband was wiring funds from a marital account to the Allianz account.

         Wife had two types of Thrift Savings Plan ("TSP") accounts. She previously had withdrawn funds from her TSP to pay attorneys' fees. Most of the funds taken from the TSP were used to cover attorneys' fees, and some were used for other expenses, such as tuition for her son.[11]

         Wife next discussed her allegation that Husband dissipated $244, 529.41 of marital funds. As discussed in more detail, infra, the circuit court admitted some, but not all, of Wife's proposed exhibits to show how she arrived at this figure.

         B.

         Husband's Testimony

         Husband testified that, when he and Wife acquired the marital home, they paid a 20% down payment to purchase the home, and they received these funds from his parents.[12]Husband asserted that the funds received from his parents constituted a loan, not a gift, but he had not repaid his parents.

         Husband continued to live in the marital home after Wife moved out in April 2015. He was paying the expenses on the home with no contribution from Wife. As of the time of trial, they were in arrears with respect to the payment of property taxes on the marital home for 2016. He had asked Wife to contribute to expenses, including property taxes, but she "did not reply to [his] request." Husband did not have the necessary funds, so he planned to sell one of the marital vehicles to pay the taxes.

         Husband opined that the value of the marital home was $1, 070, 650. He believed that Wife's opinion that the marital home had depreciated in value by approximately $250, 000 was inaccurate.

         The parties owned two cars, a 2010 Nissan Murano and a 2013 Hyundai Elantra. Both vehicles were titled in Husband's name, and the parties agreed that the vehicles were marital property. Husband wanted to sell the Nissan Murano so that he could pay the marital home property tax arrearage. Husband and Wife initially agreed that the Nissan Murano was worth $17, 000. At trial, however, Husband stated that he thought the Nissan's value had depreciated because the car had accrued more mileage since they filed the Joint Statement. Husband also owned several motorcycles.

         Husband testified that he had two sources of income, his World Bank pension and the income he received from consulting for the World Bank. Upon retirement, he took one-third of his pension, approximately $800, 000, as a lump sum payment, with two thirds of the pension remaining. He used this one-third payment to pay off the mortgages that the parties had on the marital home, to pay off their credit card debt, and "to put some money towards two college savings accounts" for their son.

         The gross monthly amount of the pension Husband received was $11, 102.66, but there were deductions each month for family medical insurance and life insurance. His net monthly pension amounted to $10, 528.58. Husband also received income from consulting for the World Bank. In 2016, he earned approximately $35, 000, and in the four months prior to trial, he earned $12, 100. His consulting for the World Bank was "variable and decreasing" in frequency.

         Husband also discussed various accounts listed on the Joint Statement. He believed that the Allianz Bank Investment Account was nonmarital because the source of funds for the account, which was solely in his name, was the proceeds of the sale of his father's ancestral home. The Stocks account listed in the Joint Statement used to be titled in both his and his father's name, but after May 2014, his name was removed from the Stocks account.

         With respect to Wife's adultery and dissipation claims, Husband estimated that he spent $6, 746 traveling with other women. He spent $1, 555 on wire transfers to other women, and $775.39 in dating website fees. He agreed that a portion of the $1, 555, i.e., transfers from Western Union, constituted dissipation, but he alleged that transfers from his Allianz account were transfers of nonmarital funds. Husband admitted that he first had sexual relations with other women beginning in October 2012.

         C.

         Marc Pushkin Testimony

         Marc Pushkin, an expert in the area of pension retirement assets, testified that he was asked to look at the parties' pensions and the social security benefits that they had earned and could expect to receive in the future. He could not precisely ascertain the social security benefits that Wife would receive because "she may have continued employment, she may have more earnings," and "until the person actually retires, [one cannot] know what [her] final work history will be."

         Mr. Pushkin explained that Husband would not receive social security benefits attributable to his work at the World Bank. Husband could, however, receive social security benefits as a spouse "if he met the requirements for spousal benefits." Those requirements, which Husband satisfied, included a marriage of 10 years, being age 62 years or older, and being entitled to a benefit less than his ex-spouse's benefit.

         Mr. Pushkin testified that he could not specify precisely the benefits Husband would receive as a result of Wife's entitlement, but it generally would be 50% of what her benefit would be at her normal retirement age, although it would be adjusted if Husband took it earlier than Wife's normal retirement age.[13] Unlike with a pension, Wife would be entitled to the full measure of her social security benefits, despite Husband's ability to receive 50 percent of the amount of her benefits. That is, Wife's share would not be diminished by any benefit that Husband would receive. And Husband's election to receive Wife's social security benefits was independent of Wife's election to receive her own benefits. Mr. Pushkin also testified that various provisions that might reduce the social security benefits that Husband would receive, such as a "government pension offset" and "windfall elimination provisions," would not apply here.[14]

         Mr. Pushkin next discussed the World Bank's policy on dividing pensions. He stated:

[T]he World Bank is not subject to the normal rules of QDROs[15] because it's not under the - the normal QDRO rules under U.S. law do not apply to the World Bank so the World Bank has their own set of rules and they have what's called a spousal support order. So you have to follow the spousal support order if you want to effectuate what we would refer to as a QDRO.

         The World Bank required the division of retirement benefits be granted as spousal support.

         D.

         Douglas White Testimony

         Douglas White, an expert in Certified Public Accounting, testified that he was retained to help Wife prepare her 2015 tax returns and to compute her 2015 federal and Maryland state tax liabilities resulting from her withdrawal of $200, 000 from her TSP retirement account in 2015. Of the $200, 000 that was withdrawn from her TSP, $186, 686 was taxable, and the total tax and penalty due to her withdrawal from the TSP alone was $97, 797.

         As of the date of trial, Wife still owed taxes for the 2015 tax year. She was on an installment plan with the IRS, paying $655 per month on the remaining balance owed.

         E.

         Paul Reinstein Testimony

         Paul Reinstein, a family law attorney, testified regarding World Bank pension orders. He stated that the World Bank does honor pension orders, but he explained:

World Bank is non-ERISA. It is not subject to the federal ERISA legislation but they have historically honored domestic relations orders. Not Q[D]ROs but domestic relations orders as long as they designate the payment as spousal support.
That's just a unique feature of a World Bank pension plan in terms of what they will recognize. As long as it is designated as spousal support or alimony they will recognize the order. That's just unique to the World Bank.

         Mr. Reinstein testified that the World Bank would honor "either a percentage designation or a dollar amount designation."

         With respect to the $425, 000 that Wife had accrued in attorneys' fees, Mr. Reinstein opined that this amount was reasonable given the litigation regarding World Bank pension issues, as well as custody and child support. Additionally, the fees and time spent pursuing a deposition of Husband's expert witness, Timothy Voit, who in the end did not testify, were appropriate. And, due to Husband's equivocation as to when his acts of adultery first began, it was appropriate to expend time and fees to determine the truth regarding the beginning of his adulterous acts.

         F.

         Hadrian Hatfield Testimony

         Hadrian Hatfield, an expert in family law, testified on behalf of Husband. Mr. Hatfield explained that the World Bank pension scheme for pre-1998 employees does not provide survivor benefits to an ex-spouse.

         The World Bank will "not accept an order that purports to divide a pension." Mr. Hatfield explained that, in Maryland, the court can either reduce a pension to present value and account for that amount in a monetary award or a set off of assets or "award an if, as, and when type of payment from the pension or even a division of pension assets."[16] He stated that an "if, as and when" division of the pension assets was not available with a World Bank pension, explaining that, similar to a pension from a foreign government, the court did not "have the power to tell those folks what to do with their pension benefits."

         Mr. Hatfield then opined that there were four options for the World Bank pension. First, the court could "issue your standard type of pension division order," which was not acceptable because the World Bank would refuse to honor it, and the parties would be back in court.

         Second, the court could issue a monetary award, although there would have to "be enough marital property available to do that," and the court would have to value the different properties. In that regard, Mr. Hatfield stated:

[W]e would typically have an expert look at the World Bank pension benefits, look at the mortality tables, and in circumstances with international pensions, you have to look at the currency fluctuation risk and render an opinion as to the present value of those benefits.
* * *
For a monetary award, it's my opinion that a Court would have to have a present value for the pension. And I think it's very difficult to issue a monetary award and be sustained on appeal if you haven't valued it.

         The third option, in Mr. Hatfield's opinion, was a set off, where the court could give a similarly valued property to Wife without any division of the World Bank pension. He stated:

Now, the issues that you run into are of course still valuation - you want to make sure that the setoff is as close as possible to the true value.[17] You've got to look at tax consequences. If you're setting off against pension interests, presumably you want the interest to be as close as possible to the same, so is it in pay status or not are considerations that the Court would have. And in my opinion, if it's possible, that's probably the cleanest way to do things.

         And finally, the fourth option was to order spousal support as a substitute for the inability to divide the pension.

         Mr. Hatfield thought that setoff was the best option, followed by a monetary award, an alimony order, and an order purporting to divide a pension. Mr. Hatfield agreed that, if the court ordered Husband in a spousal support order to pay Wife 50 percent of his pension on a monthly basis as he receives it, that would be close to an "as, if, ...


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