Circuit Court for Montgomery County Case No. 124133-FL
C.J., Graeff, Eyler, James. R. (Senior Judge, Specially
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,
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?
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.
AND PROCEDURAL BACKGROUND
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. 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
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.
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.
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.
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.
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
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.
2014, Wife requested Husband to attend marriage mediation. He
refused. Husband resumed traveling in June 2014 and returned
in September 2014. When wife checked their laptop upon
Husband's return, she found links to dating and escort
sites, emails to "sex sites," and pictures.
of Divorce Action and Subsequent Filings
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
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.
29, 2015, the circuit court held a merits trial regarding
custody of the minor child, Amanle. 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.
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."
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.
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.
December 12, 2016, trial began. Although it was scheduled as
a three-day trial, it continued for seven days, ending June
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"
the merits of the suit, counsel for Wife stated, in pertinent
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]
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.
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."
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."
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.
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.
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.
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."
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. She wanted the court to
award her the marital home, which she believed to be worth
$750, 000,  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."
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.
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.
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"),
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. . . .
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
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.
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
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
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.Husband
asserted that the funds received from his parents constituted
a loan, not a gift, but he had not repaid his parents.
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.
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
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.
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
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.
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.
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.
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."
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
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. 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.
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 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.
World Bank required the division of retirement benefits be
granted as spousal support.
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.
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.
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.
Reinstein testified that the World Bank would honor
"either a percentage designation or a dollar amount
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.
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.
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." 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."
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.
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.
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
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. 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
finally, the fourth option was to order spousal support as a
substitute for the inability to divide the pension.
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, ...