In Durkee v. Durkee, the Court of Special Appeals reviewed the circumstances under which a court granting a divorce may reserve ruling on the issue of alimony, and the factors that permit the court to “impute” income to a spouse.

Michael and Katherine Durkee were married in 1982. During their marriage, two children were born. Mr. Durkee obtained a masters degree in computer science from Johns Hopkins University and developed skills in the field of computer technology. Mrs. Durkee became a stay-at-home mom. In 1998, Mrs. Durkee filed a complaint for divorce.

Shortly before the couple separated in 1998, Mr. Durkee lost his job, and decided to become self-employed. As a consequence, his average annual income fell from $93,000 to near zero. In the meantime, Mrs. Durkee took a job that earned her $13,159 in 2000.

Although Mrs. Durkee’s complaint included a request for permanent alimony, in recognition of her husband’s lack of income during the period leading up to the divorce trial, Mrs. Durkee’s counsel asked the trial judge to reserve ruling on the request for alimony. The trial judge expressed concern about the possibility that Mr. Durkee would resume earning substantial income, such that there could be “unconscionably disparate” financial circumstances between these two former spouses, and as a result, the judge reserved ruling on the request for alimony.

Mr. Durkee appealed to the Court of Special Appeals, contending that the court erred in leaving this issue open, and also in “imputing” income to him for the purposes of computing child support.

The Court of Special Appeals quoted the following statement about the purpose of alimony from Tracey v. Tracey, 328 Md. 380, 391 (1992):

“[A]limony's purpose is to provide an opportunity for the recipient spouse to become self-supporting.  The concept of alimony as life-long support enabling the dependent spouse to maintain an accustomed standard of living has largely been superseded by the view that the dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living.”

Nevertheless, the courts are still empowered under Title 11 of the Family Law Article of the Maryland Code to award indefinite alimony and to reserve on the issue of alimony. However, there are circumstances under which a reservation “would not be appropriate.” Quoting from Turrisi v. Sanzaro, 308 Md. 515, 528-30 (1987), the Court of Special Appeals noted:

“[I]n view of the Act’s emphasis on promotion of economic self-sufficiency, its favorable approach to alimony for a definite period, and its opposition to the notion of alimony as a lifetime pension, it would not be appropriate to reserve simply because there may be some vague future expectation of circumstances that might show a basis for alimony.  By the same token, the possibility that a claimant might become aged, infirm, or disabled, or that standards of living could conceivably be unconscionably disparate at some unknown future date, thus potentially invoking § 11-106(c), would not provide a basis for reservation. ...

On the other hand, ... [if] the record contains evidence from which the chancellor could find that the claimant, in the reasonably foreseeable future, will be in circumstances that would justify an award of rehabilitative or indefinite alimony, it would not be an abuse of discretion to reserve.”

In the Durkees’ case, there was not a probability, but a mere possibility, that Mr. Durkee’s income would increase within a reasonable time. Consequently, the Court of Special Appeals ruled the trial court should not have reserved on alimony, stating, “we conclude that the question of when, if at all, appellant’s business would prove economically successful fell within the category of ‘vague future expectation of circumstances,’ which Turrisi rejected as a ground for reservation.”

An appropriate course for the trial court to have taken would have been to “consider a relatively small award of immediate alimony, which would be subject to modification in the event of a change in circumstances.” Because the trial court would have very likely awarded some alimony had it not reserved the issue, the Court of Special remanded the case to the trial court for further consideration of the alimony issue.

The second issue raised by Mr. Durkee related to the trial judge’s implicit finding that he had voluntarily impoverished himself. The Court of Special Appeals noted:

"A parent is voluntarily impoverished ‘"whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources."’”

The Court quoted from prior rulings that list the factors to be considered:

“To determine if a parent is ‘voluntarily impoverished,’ the chancellor should consider several factors, including:

1. his or her current physical condition. 
2. his or her respective level of education;
3. the timing of any change in employment or financial circumstances relative to the divorce proceedings.
4. the relationship of the parties prior to the divorce   proceedings;
5. his or her efforts to find and retain employment;
6. his or her efforts to secure retraining if that is needed; 
7. whether he or she has ever withheld support;
8. his or her past work history;
9. the area in which the parties live and the status of the job market there; and
10. any other considerations presented by either party.’”

The Court of Special Appeals rejected Mr. Durkee’s contention that the trial court was required make an express finding of voluntary impoverishment. The evidence supported the trial court’s implicit finding of voluntary impoverishment.

The Court also rejected the argument that there could be no finding of voluntary impoverishment because the decline in income occurred during rather than after the marriage, stating:

“[P]arents who impoverish themselves for reasons unrelated to avoidance of their existing child support obligations nonetheless fall within the class of persons for whom income can be imputed in accordance with the factors outlined above.  Moreover, we have not been provided with any authority for the proposition that a court may not find voluntary impoverishment unless the decline in income occurs after the separation.”

 Durkee v. Durkee, No. 158, September Term 2001, in the Court of Special Appeals of Maryland, filed May 1, 2002.

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