Turner v. Turner9/30/2002
,950, rather than the $46,450 acknowledged by appellee, and said:
Mrs. Turner seeks to attribute $48,950 in marital funds to Mr. Turner, as these constituted half of the joint bank accounts that was taken at the time he left the martial home. A similar sum was left for Mrs. Turner to utilize. Both parties have long since expended these funds. Given the even division of bank accounts at the time of separation, and the need for funds for living expenses and fees incurred, the Court will not consider these as marital property at this juncture.
Ordinarily, property disposed of before trial cannot be marital property. Collins v. Collins, 144 Md. App. 395, 412 (2002); Gravenstine v. Gravenstine, 58 Md. App. 158, 177 (1984). When a claim is made of dissipation, the party making the claim must present affirmative evidence to establish it. Jeffcoat v. Jeffcoat, 102 Md. App. 301, 309 (1994). "The burden of persuasion and the initial burden of production in showing dissipation is on the party making the allegation." Id. at 311; see Choate v. Choate, 97 Md. App. 347, 366 (1993). The Jeffcoat Court said, at 102 Md. App. at 311:
That party retains throughout the burden of persuading the court that funds have been dissipated, but after that party establishes a prima facie case that monies have been dissipated, i.e. expended for the principal purpose of reducing the funds available for equitable distribution, the burden shifts to the party who spent the money to produce evidence sufficient to show that the expenditures were appropriate.
A finding of dissipation is important with respect to the value of marital property. The Jeffcoat Court explained:
" here a chancellor finds that property was intentionally dissipated in order to avoid inclusion of that property towards a consideration of a monetary award, such intentional dissipation is no more than a fraud on marital rights, and the chancellor should consider the dissipated property as extant marital property ... to be valued with other existing property." Id. at 308 (quoting Sharp v. Sharp, 58 Md. App. 386, 399 (1994)(internal citations omitted)); see Beck v. Beck, 112 Md. App. 197, 216 (1996), cert. denied, 344 Md. 717 (1997); Choate, 97 Md. App. at 366; Rock v. Rock, 86 Md. App. 598, 618-20 (1991); Melrod v. Melrod, 83 Md. App. 180, 186-88, cert. denied, 321 Md. 67 (1990).
The question remains whether appellant established that appellee used the remaining sum (i.e., $14,950 or $12,450) for his "`own benefit for a purpose unrelated to the marriage at a time [when] the marriage undergoing an irreconcilable breakdown?'" Beck, 112 Md. App. at 215-216 (citation omitted). As noted, appellee asserted the Fifth Amendment as to his use of that portion of the withdrawal.
In Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), the Supreme Court said that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." Similarly, in Whitaker v. Prince George's County, 307 Md. 368 (1986), the Court of Appeals ruled that the Fifth Amendment does not bar "the drawing of adverse inferences against parties to civil actions when they refuse to testify." Id. at 386. Nevertheless, the Court indicated that an adverse inference alone is not sufficient to support a finding. Rather, it must be considered along with other "relevant evidence tending to prove [the disputed] fact." Id. Robinson v. Robinson, 328 Md. 507 (1992), is also instructive. There, the Court determined that the wife's assertion of privilege regarding her alleged adultery supported an inference that she committed adultery, but did not supp
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