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Collins v. Collins5/30/2002
payments at issue were made prior to the divorce and had been expended as of the date of the divorce.
As observed earlier, an exception to the rule in Gravenstine is where one spouse claims that the property was "improperly dissipated by the other spouse." Choate, 97 Md. App. at 366 (citing Rock v. Rock, 86 Md. App. 598, 618-20, 587 A.2d 1133 (1991)). "Dissipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown." Jeffcoat v. Jeffcoat, 102 Md. App. 301, 308, 649 A.2d 1137 (1994) (quoting Sharp v. Sharp, 58 Md. App. 586, 401, 473 A.2d 499 (1984) (citing Klingenberg v. Klingenberg, 68 Ill. App. 3d 513, 25 Ill. Dec. 246, 386 N.E.2d 517, 521 (1979))).
The party alleging dissipation has the initial burden of showing dissipation has taken place. Welsh v. Welsh, 135 Md. App. 29, 50, 761 A.2d 949 (2000). Once the prima facie case of dissipation is proven, the burden shifts to the other party to show that the assets were expended appropriately. The court must then determine, either implicitly or explicitly, whether the joint funds were dissipated. Welsh, 135 Md. App. at 50-51.
Here, the court only expressed concern that Dr. Collins had not received any portion of the paid pension benefits. Even if we deemed that fact adequate to establish a prima facie case of dissipation, the evidence before the court was that Lt. Col. Collins' sole income during this period came from his retirement pay and that, at least, some monies were paid toward child support during this period. As he was in the process of retiring before the initiation of any divorce proceedings, there would be no reason to believe that his retirement was simply an attempt to reduce any equitable distribution award. Moreover, in consideration of the support issues, there was no finding that Lt. Col. Collins should have had a job or was otherwise voluntarily impoverishing himself during this period. Unlike the court's discussion regarding the diamonds and the stock, there is neither an express finding nor a clear basis for an implied finding that the pension funds were dissipated so as to entitle Dr. Collins to reimbursement as part of an adjustment of the equities between the parties. See Welsh, 135 Md. App. at 150-51. Therefore, we will vacate this portion of the trial court's monetary award and remand for further proceedings on the issue of dissipation of these funds.
B. Pension Award and Reservation of Alimony
Lt. Col. Collins argues that the formula the court used in making the pension award was erroneous and that the constituted pension order was improper. He also argues that the trial court erred by reserving on the issue of alimony.
1. Dr. Collins' Marital Share of the Pension
Lt. Col. Collins contends that federal law, which governs his military pension, prohibits the court from assessing a marital award for the period between July 21, 1979, the day of the marriage, and June 25, 1981, the date set forth in the Uniform Services Former Spouses' Protection Act ("USFSPA"), 10 U.S.C. ยง 1480(c) (2000). Dr. Collins argues that, because the "instant case was filed after 1982, thus has the full benefit of all USFSPA protections." The court made no specific findings as to this issue.
The pertinent provision of the USFSPA reads as follows: (c) Authority for court to treat retired pay as property of the member and spouse.
(1) Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the mem
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