Turner v. Turner9/30/2002
that finding may justify a conclusion that alimony be indefinite. If a court projects that a party will become self-supporting, subsection (2) provides that, if and when a party makes as much progress toward becoming self-supporting as can reasonably be expected, an award of indefinite alimony may still be justified if the standards of living will be unconscionably disparate. In other words, subsection (2) requires a projection into the future, based on the evidence, beyond the point in time when a party may be expected to become self-supporting. It requires a projection to the point when maximum progress can reasonably be expected.
Generally, the trial court's determination of unconscionable disparity under F.L. § 11-106(c) is a question of fact, subject to review under the clearly erroneous standard. See Ware v. Ware, 131 Md. App. 207, 228 (2000). As we explained in Ware:
"The existence of `unconscionably disparate' standards of living is a question of fact in the domain of the fact-finder. In fact, the trial judge is given so much discretion on this issue that [, until Roginsky v. Blake-Roginsky,] we have never reversed a trial court's award of indefinite spousal support in a published opinion." Id. at 229 (citation omitted).
In contrast, the alimony award itself is a matter within the discretion of the chancellor. Blaine, 336 Md. at 74; Ware, 131 Md. App. at 227. Absent an abuse of discretion or legal error, we will not disturb the trial court's decision. Tracey, 328 Md. at 385; Crabill, 119 Md. App. at 260. See also North v. North, 102 Md. App. 1, 13-14 (1994) (discussing definition of abuse of discretion). To the contrary, "`appellate courts will accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.'" Ware, 131 Md. App. at 227 (citation omitted).
The court found that appellee "currently" earns between $175,000 and $200,000 from BSL, and that "his earning potential is likely to increase." Appellee has not disputed those findings. To the extent that the court found that appellant currently earns $175,000 per year, or even $200,000 a year, the finding was not supported by the evidence. Among other factors, the propriety of the annual alimony award of $24,000 must be measured against the income appellee actually earns. See F.L. § 11-106(b)(9).
For 1997, the court found that the parties had a combined income in excess of $300,000. In 1998, appellee, individually, reported wages of approximately $140,000. It is fallacious, however, to construe appellee's 1998 earnings as an accurate measure of his economic position. As the circuit court noted in the Divorce Opinion, the amount appellee could draw in salary from BSL in 1998 was "undoubtedly affected" by the Company's obligation to pay $2500 per week to appellant pursuant to the Agreement, and appellee's subsequent court-ordered obligation to pay alimony in that amount. Indeed, even appellee does not assert that his income in 1998 represented a realistic picture of his earnings history or earnings capacity. Moreover, because appellee's corporate salary in 1998 ($140,000) was equal to appellant's salary pursuant to their Agreement, the parties' combined income from BSL in 1998 exceeded $260,000. Clearly, the court did not regard the $140,000 reported by appellee for 1998 as reflective of his actual earning capacity, given its finding that appellee earns between $175,000 and $200,000.
Appellee's W-2 for 1999, submitted without objection in connection with appellant's post-trial motion, merely corroborated that appellee's reported earnings for 1998 were aberrational. According to the W-2 for 1999, appellee ea
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