IN THE COURT OF SPECIAL APPEALS
September Term, 1998
Rombro, Richard T., (Retired,
Opinion by Rombro, J.
March 3, 2000
The Circuit Court for Anne Arundel County (Hon. James C.
Cawood, Jr. presiding) granted an absolute divorce to appellant,
Joseph Caccamise, from Susan Caccamise, appellee, on the ground
Both parties appealed and present numerous
questions for our review.
Did the trial court err in awarding
alimony to appellee when she had no
grounds for divorce?
Did the trial court err in failing to
find an irrevocable trust to be marital
property subject to equitable
III. Did the trial court err in failing to
award to appellant retroactive child
support, where there was no finding that
such an award would produce an
Did the trial court err in granting use
and possession of a vehicle owned by
appellant’s business to appellee?
Did the trial court err in awarding
attorney’s fees to appellee?
Appellee’s cross-appeal presents the following questions:
Did the circuit court err in failing to
determine that the parties’ separation
was mutual and voluntary?
Did the circuit court err in determining
the amount and time period for the
monetary award by not ordering that the
award be paid with interest and by not
providing a contingency for early
III. Did the circuit court err in only
awarding $100 per month in alimony to
IV. Did the circuit court err in its
determination and calculation regarding
the contribution it ordered from
appellee to appellant on the condominium
The parties were married on January 10, 1981, and had one
child, Maria, born February 29, 1984.
the husband was 52 and the wife was 51.
At the time of the trial,
When the parties were
married, appellant owned a business with two other partners
called Technigraphics, Inc.
Testimony disclosed the business had
gross revenues in excess of eight million dollars.
salary at the time of trial was approximately $90,000 per year.
In 1984, appellant had started another business, SKW Leasing,
which bought, sold, and leased equipment to Technigraphics, Inc.
Appellee was employed at the Pentagon by the Department of
Defense, making approximately $69,000 from the time of the
marriage until 1988.
Up until the parties separated, appellee
held various small jobs, none equaling her salary from the
Department of Defense.1
The parties built a new home together, partly with the
proceeds from appellee’s sale of her prior home, a loan from
appellee’s friend, and some proceeds from the sale of appellant’s
Appellant contends that he asked appellee to seek
employment when his business began failing and that she declined.
Appellee ran a quilt shop and took care of their daughter. She
suggested that appellant’s business sell some of its inventory
and equipment to help with its decline. These details are
irrelevant to this appeal.
The house was titled in appellee’s name until
1988, when the home was refinanced and appellant’s name was added
to the deed.
Appellee has not contributed to the mortgage or
other payments since she left the marital home in October 1996.
Appellant purchased a condominium in Tampa, Florida, during
the marriage, for his daughters from a previous marriage to
reside in while they attended college.
It was sold in 1997, for
The proceeds of the sale were retained by appellant.
The marriage began to deteriorate in 1994.
argued about appellee re-acquiring her job at the Department of
Defense, and appellant’s conduct of his business.
they began to spend more time apart.
As a result,
counseling and appellant later joined the sessions.
counseling sessions ended in 1994-5.
Sexual relations ceased,
and appellee finally left the marital home in October 1996.2
appellee has had the use and possession of a Jeep owned by
appellant’s business with appellant’s permission since the
At the time of trial, both parties were employed.
was making approximately $90,000 a year and appellee earned
around $39,000 with the State of Maryland legislature.
was also the beneficiary of an irrevocable life insurance trust
Appellee states in her brief simply that she left the
marital home, and that appellant did not attempt reconciliation.
Appellant’s brief relates that appellee asked appellant to leave,
he declined, then she left.
in the amount of $600,000 established by appellant.
gives the trustee full discretion except he must distribute up to
$5,000 annually to appellee upon her request.
Appellant filed a complaint for a limited divorce in the
Circuit Court for Anne Arundel County in January 1997, asserting
as the cause of action desertion or, in the alternative,
Appellant sought joint legal custody of
their daughter, child support, a marital property determination,
use and possession of the family home, and attorney’s fees.
Appellee’s answer conceded that she left the marital home3
but asserted that appellant had constructively deserted her.
Appellee requested custody, child support, use and possession,
and attorney’s fees.
In December 1997, appellant filed a Supplemental Complaint
for Absolute Divorce.4
The complaint alleged the same causes of
action and requests for relief as the Limited Divorce complaint.
Appellee answered in January 1998, with the identical responses
Appellee claims that she left because the parties could
not agree on the terms of their separation.
Prior to this filing, appellee filed a Counter Complaint
for Limited Divorce on the grounds of constructive desertion or,
in the alternative, voluntary separation. Appellant answered the
complaint in March 1997.
as her answer to the first complaint.5
The Circuit Court Findings
Trial was held in the Circuit Court for Anne Arundel County
in February 1998, following which the court took the following
1. Granted the divorce to appellant on the
ground of appellee’s desertion.
Valued the property, and the businesses,
and awarded appellee a monetary award in the
amount of $425,000, “to be paid at $30,000
per year, effective April 1, 1998.”
Found that the irrevocable trust was not
marital property because it was “too
Awarded appellee $100 per month in
alimony with no termination date.
Awarded custody to appellee; ordered
appellant to pay child support; declined to
award appellant retroactive child support for
the short period of time prior to trial that
he had custody.
Granted appellee the use and possession
of the family home, and of the Jeep for a
three year period.
Granted appellee attorney’s fees of
Awarded full contribution to appellant
for the Florida condominium, and 40%
contribution for the marital home’s expenses.
After various post-trial motions, none of which are relevant
to this appeal, the court requested counsel to submit an order
Appellee also added that she left the home because of
reflecting the court’s opinions.
was signed in November 1998.
A Judgment of Absolute Divorce
This appeal followed.
Appellant Husband’s Appeal
Justification for Awarding Alimony
Appellant contends that the trial court erred in awarding
alimony to appellee when she had no ground for divorce.
The standard of review for alimony awards is the
clearly erroneous standard; the decision is upheld “unless the
chancellor’s decision was arbitrary or his judgment was clearly
wrong.” Freese v. Freese, 89 Md. App. 144, 154 (1992).
The trial court held that
the question of alimony is greatly tempered
by the monetary award. She is earning about
27% of what he does. The monetary award will
put them about equal. We will award the
minimal sum of $100.00 per month...
recognizing the need that if, and as when the
monetary award is paid, she may then have a
The court cited Quigley v. Quigley, 54 Md.App. 45 (1983), and
concluded that “just because she left doesn’t deprive us of the
right to grant alimony.
We have to have some grounds of divorce
In Quigley, the Chancellor held that the wife had not shown
a need for alimony and he therefore did not grant the reservation
On appeal, wife complained that the divorce should
have been granted to her and she would then have had “grounds”
The Quigley court noted that prior to 1980, when the General
Assembly enacted the new Maryland Alimony Law, the wife’s
argument was sound.
However, in that year the legislature, after
setting forth the factors to be considered in awarding alimony,
The existence of a ground for divorce against
the party seeking alimony is not an automatic
bar to the Court awarding alimony to that
Art. 16 sec.1(a), now codified in Md.Code,(1999) Fam.L. §11-103.
Clearly a trial court, in the exercise of its judgment,
after considering the factors listed in Md.Code, Fam.L. §11-106,
may award alimony to a “guilty” party.
Here, the trial judge
explained his reasons for the award of alimony, and we perceive
no abuse of discretion.
Irrevocable Life Insurance Trust
Appellant asserts that the trial court erred in failing to
declare the irrevocable life insurance trust as marital property
subject to equitable distribution.
This is an issue of first
impression in Maryland.
Appellant established the irrevocable trust in 1988, placing
in the trust a $600,000 life insurance policy managed by Sovran
Bank as Trustee.
The trustee controls the policy, and has the
discretion as to distribution of the proceeds.
The trustee is to
pay the net income of the trust to appellee during her lifetime,
and also has the right to distribute any or all of the principal
to appellee to provide for her care during her lifetime.
the death of appellant and appellee, the proceeds of the trust
are to be divided among appellant’s children.
The trust is
irrevocable and is not subject to any powers to “alter, amend,
modify or revoke.”
The trial court held that the irrevocable trust was not
...unlike a revocable trust, these are no
longer the property of Mr. Caccamise. Lynch
v. Lynch, 522 A.2d 234... under the trust
terms, she [appellee] receives payment from
the insurance proceeds during her lifetime.
The trustee has the right to distribute the
property to her for health, medical care,
etc. during her lifetime. She can elect
$5,000 per year. Upon her death the children
are beneficiaries. These are all fairly
standard provisions in an irrevocable
trust... we think the interest is too
contingent to be included as marital
property. She may not survive him, so the
Trust will have no assets. It may well not
be expended before she dies. It is too
contingent to be counted. If it were, and it
should have been counted, its nature would
preclude us, in our discretion, from making
any monetary award based on this property
Trial courts are required to go through a three step
analysis in determining whether to make a marital property award:
(1) determining if the property is marital; (2) the value of the
marital property; and (3) decide whether a monetary award is
appropriate and equitable. Alston v. Alston, 331 Md. 496 (1993).
Marital property is “all property however titled acquired by one
or more parties during the marriage.” Md.Code, Fam. Law § 8-201
We agree with appellant that the irrevocable trust was
The trust was started by appellant for the
benefit of appellee during the marriage with funds accumulated
during the marriage.
The trust was funded by life insurance
policies, which are recognized as marital property. Mount v.
Mount, 59 Md.App. 538 (1984).
In Mount, the appellant argued
“that the chancellor erred in failing to include as marital
property either the value of appellee’s life insurance
/retirement policy in the face amount of $20,000.00, or the value
of his $60,000.00 life insurance policy.” Mount, 59 Md.App. at
This court held
Both of these policies should have been
included in the evaluation of the marital
property. The life insurance retirement fund
was initiated in 1964. The parties were
married in 1974, and divorced in 1983. Since
appellant made weekly payments of $11 on this
policy from 1974 to 1983, it is clear that
part of the value was acquired during the
marriage. Applying the source of funds
theory, Harper v. Harper, 294 Md. 54, 448
A.2d 916 (1982)..., that part of the value of
the life insurance retirement fund acquired
during the marriage should have been included
as marital property. Although the status of
the $60,000 life insurance policy is not as
clear, there is sufficient evidence in the
record to indicate that some premiums were
paid after the marriage and to the extent
that they were, the value so established
should be included as marital property.
Id. at 550.
The Mount Court remanded and stated that “it
will be necessary for the chancellor to determine what the ratio
is between the amounts of premiums paid on these policies during
the term of the marriage, against the amounts paid before the
marriage, and the relation of this to the cash values of the
policies at the time of the divorce.”
Id. (citing Harper,
We are also persuaded by a recent case decided by the
Supreme Court of North Dakota, Fox v. Fox, 592 N.W.2d 541, 1999
N.D. 68 (1999).
The North Dakota Supreme Court looked to the
decision reached in Herrick v. Herrick, 316 N.W.2d 72 (1982)6 in
stating that “generally trusts are includable as marital property
subject to equitable distribution by the trial court... however,
this court has also held when receipt of future benefits is too
speculative, the potential benefits should not be valued as
assets in the marital estate.” Fox, supra, 592 N.W. 2d at 546.
See Herrick, supra.
The Herrick court’s rationale, adopted in
Fox, reasoned that despite the fact that the wife did not make
financial contributions to the trust, her contributions by means
of “employment, effort and support to establishing” the funds
rendered the trust marital property because
Herrick involved the distribution of a profit sharing
trust established by the husband.
in making a division of the property, the
marriage status and obligations arising
therefrom, as a whole, must be considered.
Herrick, 316 N.W.2d at 74 (citing Keig v. Keig, 270 N.W.2d 558
We agree with the North Dakota Supreme Court cases of
Herrick and Fox and hold that an irrevocable life insurance trust
created by one spouse for the other during the marriage is the
marital property of the beneficiary spouse because of the parties
“marital status and obligations.”
judgment of the monetary award.
We therefore vacate the
On remand, the court should
determine the value of the irrevocable life insurance trust to be
included as marital property.
Retroactive Child Support
Appellant contends that the trial court erred in failing to
award him retroactive child support.
The trial judge said:
As indicated, he was paying for the property
without assistance. She paid no child
support. He paid no alimony. At this point
we don’t believe we should make either of the
latter retroactive. Of course, future child
support depends on the disposition of the
“As a general rule, the amount of a child support award is
governed by the circumstances of the case and is entrusted to the
sound discretion of the trial judge, whose determination should
not be disturbed unless he acted arbitrarily in administering his
discretion or was clearly wrong.” John O. v. Jane O., 90 Md.App.
406 (1992). In Voishan v. Palma, 327 Md. 318(1992), the Court of
Appeals stated that “while [child support] awards... will be
disturbed only if there is a clear abuse of discretion, a
reviewing court must also be mindful that the federal call for
child support guidelines was motivated in part by the need to
improve the consistency of awards.” Id. at 331.
Maryland law provides for the awarding of retroactive child
support in §2-101 of the Family Law Article:
The Court may award child support for a
period from the filing of the pleading that
requests child support [emphasis added].
Although retroactive support is allowed, it is by no means
The trial court has discretion whether to award
support retroactively, and we do not believe that there was an
abuse of discretion in the present case.
Appellant had custody
of the child; however, his income was considerably more than
appellee’s and his financial condition was not so dire that he
could not support his child for those few months on his own.
court did not abuse its discretion in failing to make the child
support award retroactive.
Dunlap v. Forenza, 128 Md.App. 357
Use and Possession of Third Party’s Property
Appellant argues that the trial court erred in granting the
appellee the use and possession of a Jeep owned by appellant’s
business, Technigraphics, Inc.
At the time of the award,
appellant was the only stockholder of the business.
been using the vehicle during the marriage with appellant’s
permission, and continued to do so after the separation.
the trial judge decided that the child should remain primarily
with appellee, he granted her use and possession of the family
home and the vehicle for a three year period.
Maryland provides for use and possession awards “when the
court grants an... absolute divorce, regardless of how the family
home or family use personal property is titled, owned, or
leased.” Md.Code, Fam. Law §8-208(a).
these powers pendente lite.
The court may exercise
We agree with appellant that
use and possession of the Jeep owned by appellant’s business
should not have been granted because the vehicle did not qualify
as family use personal property within the use and possession
(1) Family use personal property” means
tangible personal property: (i) acquired
during the marriage; (ii) owned by 1 or more
of the parties; and (iii) used primarily for
family purposes. (2) “Family use personal
property” includes: (i) motor vehicles... (3)
“Family use personal property” does not
include property: (1) acquired by inheritance
or gift from a third party; or (ii) excluded
by valid agreement [emphasis added].
Md.Code, Fam. Law §8-201(d)(1). The Jeep in the instant case was
owned by the business and not one of the parties.
Appellant argues that the trial court erred in awarding
attorney’s fees to appellee, when it held:
His income is much greater than hers, and he
has far better access to additional funds.
We believe it appropriate to award $10,000 as
a contribution towards counsel and expert
fees. The difference between this and the
last category is $1,725 in her favor, which
can be paid within 30 days.
“The award or denial of counsel fees is governed by the abuse of
discretion standard.” Doser v. Doser, 106 Md.App. 329, 359
Appellant first asserts that the outcome of appellee’s case
precludes the award of attorney’s fees.
He argues that because
the court found that appellee had no ground for divorce the court
abused its discretion in awarding $10,000 to appellee.
he contends that attorney’s fees cannot be awarded for alimony.
The Family Law Article of the Annotated Code of Maryland, §11-110
Proceeding includes a proceeding for (i)
alimony...at any point in a proceeding under
this title, the court may order either party
to pay to the other party an amount for the
reasonable and necessary expense of
prosecuting or defending the proceeding
Furthermore, §12-103 provides for the award of costs and counsel
fees in a child support case.
Appellee was thus not precluded
from receiving attorney’s fees.
Appellant also argues that the trial court failed to go
through an analysis before awarding attorney’s fees and that the
value assigned to the fees was incorrect.
attorney’s fees, the trial court must consider “(1) the financial
resources and financial needs of both parties; and (2) whether
there was substantial justification for prosecuting or defending
the suit.” Md.Code, Fam. Law §11-110.
See also Fam. Law §12-103.
We hold that the circuit court did not abuse its discretion here.
The trial judge stated in his opinion that he considered the
financial situations of the parties.
In the record transcript,
appellee counsel stated that her fees for the suit were up to
$13,000 not including the five days of trial.
The court then
awarded $10,000, which it believed were reasonable and necessary
There was no abuse of discretion.
Appellee Wife’s Cross-Appeal
Voluntary and Mutual Separation
Cross-Appellant (“Appellee”) asserts that the trial court
erred in failing to find a voluntary and mutual separation as the
ground for the parties’ divorce.
A court may decree a divorce on
the ground of voluntary separation if:
(i) the parties voluntarily have lived
separate and apart without cohabitation for
12 months without interruption before the
filing of the application for divorce; and
(ii) there is no reasonable expectation of
reconciliation. MD.CODE.ANN, Fam.Law §7103(a)(3).
The trial court concluded:
We cannot find it a voluntary separation.
believe Mr. Caccamise never wanted the
separation to occur. Part of this may have
been because he didn’t want to go through the
horror story of a divorce which unfolded
before us, but we cannot question his
motives. Mrs. Caccamise left....
We refuse to upset the trial court’s decision because
appellant’s testimony revealed that appellee was the party who
left the marriage and we find nothing in the transcript of
appellee’s testimony to indicate otherwise.
Monetary Award and Method of Payment
Appellee asserts that the trial court erred in determining
the monetary award and method of payment.
It is well settled
that “a trial court decision in granting a monetary award will
not be overturned unless the judgement is clearly erroneous and
due regard will be given to the trial judge’s opportunity to
judge the credibility of the witnesses.” Gallagher v. Gallagher,
118 Md.App. 567, 580-1 (1997).
Appellee objects to the court’s evaluation on several
We turn to a discussion of these points.
The trial court evaluated all the property and determined
that husband’s net marital assets totaled $950,000.00.
argues that her marital asset award should have been $475,000.00
or one half.
Upon the dissolution of most long term marriages, the trial
judge divides the marital property equally.
This is not
required, Deering v. Deering, 292 Md. 115, 131 (1981), but has
become the practice.
The court, after a consideration of the
factors listed in F.L. §8-205, may decree an unequal division and
state the reasons for such an allocation.
Here, the trial court,
explaining the disparity, said:
Considering all the work he put into the
business, the age of the parties, and all
other relevant factors, we believe $425,000
Because the parties were 51 and 52 years of age at the time of
the trial, we fail to see what significance the trial judge
attached to that.
As to the second point, the working spouse
would normally be the one putting time and energy into the
The trial judge here did not enumerate what work the
husband had done beyond the ordinary which would account for
Finally, the court considered “all other
The judge, however, did not set forth what
other relevant factors he considered so that we could determine
whether there was an abuse of discretion in the division of the
The Family Law Article §8-205 sets forth
eleven factors that the court is to consider in making a monetary
On remand, the court should set forth which factors
influenced an unequal division of the marital property.
As to the payment of the monetary award, the court held:
How should this be paid? A business is not a
liquid asset. We believe it ought to be paid
at $30,000.00 per year, effective April 1,
We first observe that the method of payment is entrusted to
the sound discretion of the trial judge.
Here, the payment is to
take place over a period of fourteen years and no interest is to
The purpose of the award is to put the parties in
roughly equal financial positions, and indeed the trial judge
stated that was his intent.
We fail to see how a payout of
$30,000.00 per year over a fourteen year
accomplishes that goal.
period with no interest
As this Court held recently in a case in
which the division of the marital property was grossly
The judgment here defeats the purpose of the
monetary award, which is to achieve equity
between the spouses where one spouse has a
significantly higher percentage of the
marital assets title [in] his name.
Long v. Long,
Md.App. No. 52, Sept. Term, 1999 (filed January
What is true of the division of the monetary award applied
equally to the method of payment.
While an immediate payment in
full is not required, the terms of the payment must be fair and
We therefore vacate the judgment.
On remand, the
trial judge should determine, after a hearing if necessary,
whether the award can be paid in a more expeditious manner or, if
not, whether a reasonable amount of interest should be paid to
appellee for the period of time she is required to wait to
collect the amount the court determines is due her.
Appellee objects to the trial court’s statement:
The 401(k) plan is his, is worth $66,735.00
and will be divided on an “if, as and when”
basis, and isn’t part of the equation.
The court’s evaluation of appellant’s pension was not in
Appellee suggests in her brief that since the court did
not consider appellant’s pension as part of the parties’ position
he was in error. Even a cursory reading of the transcript
discloses that the court did not “ignore” the pension.
specifically decreed that it would be paid on an “if, as, and
This is permitted by Family Law §8-204(b)(2), which
provides that if a party objects to the distribution of
retirement benefits on an “if, as and when” basis that party
shall give written notice that he or she intends to present
evidence of the value of the benefits.
If no notice is given,
then any objection to such a distribution is waived.
Here, no notice was given by appellee.
The court did not
abuse its discretion.
Finally, appellee objects to the court’s concededly
incorrect evaluation of the sale of the Tampa, Florida
condominium, in which the court considered the proceeds to be
$12,402.00 to each party when, in fact, it was $12,402.00 total.
The trial judge agreed that this was in error but made no
adjustments for it in the final order.
As this matter will be
remanded, the court can make the appropriate correction.
Amount of Alimony Award
Appellee also contends that the trial court erred in only
awarding her the “minimal amount” of $100 per month in alimony.
The trial court concluded:
The question of alimony is greatly tempered
by the monetary award. She is earning about
27% of what he does. The monetary award will
put them about equal. We will award the
minimal sum of $100 per month, effective
April 1, 1998, recognizing if, as and when
the monetary award is paid, she may then have
a greater need.
The trial court clearly considered the monetary award to
appellee in determining an amount for alimony.
v. Campolattaro, 66 Md.App. 68 (1986), this Court held that
“alimony and a monetary award are significantly interrelated and
The decision to award one or both must be
made after a consideration of them in their mutual context.” Id.
at 75 (citing Cotter v. Cotter, 58 Md.App. 529, 534 (1984)).
Appellee’s contention that the alimony award was inequitable
“Whether an award of alimony, either as to amount
or duration, is grossly inequitable, can only be determined in
light of all the factors in the case, including the monetary
Therefore, “it is thus patent that any
disposition we might make with respect to the monetary award will
most assuredly affect any alimony award made.” Id.
We agree with
the trial court’s decision to factor in the monetary award in the
Contribution for Condo and Marital Home
Finally, appellee contends that the trial court erred in its
finding as to contribution from appellee to appellant for the
Florida condominium and the marital home.
The trial court’s
findings were as follows:
He seeks contribution on the family home and
the Tampa property. With regard to Tampa, we
believe he is entitled to full contribution.
The property had to be kept going until it
was sold. That amounts to $4,275. We do not
have the same thoughts with regard to the
marital home. He lived in it, along with
their daughter, while she had to get other
lodging. We believe he is entitled to some
credit because he had to pay interest which
he can’t recover. Without knowing exact
amounts, we believe he is entitled to about
40% of what he was paying of $4,000. He
shall receive total contribution of $8,275.
Contribution is a part of traditional English law regarding
co-tenancies that was adopted in Maryland and applied to
tenancies by the entireties.
“Generally, one co-tenant who pays
the mortgage, taxes, and other carrying charges of jointly owned
property is entitled to contribution from the other.” Aiello v.
Aiello, 268 Md. 513, 518-9 (1973).
There are four exceptions
that preclude contribution; namely (1) ouster; (2) agreements to
the contrary; (3)payment from marital property; and (4) an
We affirm the decision reached by the trial court, as it was
not clearly erroneous.
“We will not substitute our judgment for
the trial court’s determination of the credibility of the
witnesses.” Keys v. Keys, 93 Md.App. 677 (1992).
The Keys court
affirmed a decision limiting appellant’s contribution when the
facts in the case were disputed.
The court rationalized its
decision by deferring to the trial court’s better understanding
and evaluation of the facts:
We are bound by this oft enunciated
principle, especially in the arena of marital
disputes where notoriously the parties are
not in agreement as to the facts, and
therefore, we must be cognizant of the
court’s position to assess the credibility
and demeanor... and since the court had
before it sufficient evidence from which it
could conclude by a preponderance [of the
Id. at 688-9.
Similarly, the trial court in the case sub
judice had sufficient evidence before it to make the most
efficient determination as to whether appellant was deserving of
contribution, and how much.
We are unable to conclude that the
court’s decision was clearly erroneous.
JUDGMENT AFFIRMED IN PART;
VACATED IN PART; CASE REMANDED
TO THE CIRCUIT COURT FOR ANNE
ARUNDEL COUNTY FOR FURTHER
PROCEEDINGS; COSTS TO BE
PAID EQUALLY BY BOTH PARTIES.