Although a court is permitted to draw an adverse inference if a spouse asserts the Fifth Amendment in refusing to answer whether tax returns have been filed, that inference alone is not sufficient evidence to support findings of voluntary impoverishment.

After Joan Long filed for divorce from Timothy Long, a master’s hearing was held to consider the wife’s request for pendente lite, or interim, alimony and child support.  Mrs. Long was unhappy with the masters’ recommendation, and filed exceptions in order to have the issues reviewed by a circuit court judge.

During the circuit court hearing, when the husband was asked if he had filed tax returns for the two previous years, Mr. Long refused to answer, exercising his Fifth Amendment privilege against self-incrimination.

The trial judge concluded from Mr. Long’s refusal to answer that the tax returns had not been filed.  In addition, the court concluded from the refusal that the reason Mr. Long had not disclosed his tax returns “was to keep the full amount of his full income from being disclosed.”  At the same time, the trial judge concluded: “The evidence supports the conclusion that the [husband] voluntary (sic) impoverished himself with the help of his employer by deliberately reducing his income.”

Faced with these inconsistent conclusions, the Court of Special Appeals vacated the pendente lite order and remanded the case for further consideration.

The Court of Special Appeals noted: “When a party chooses to invoke his or her Fifth Amendment rights in a criminal trial, the silence cannot be used against that party.”  However, in a civil case, the fact finder is permitted to draw an adverse inference from the refusal to testify.

Applying this rule to the Longs’ case, Judge James Eyler wrote for the Court of Special Appeals: 

“In the case sub judice, the trial court was entitled to draw an adverse inference against appellant when appellant invoked the Fifth Amendment in response to questions about the status of his 1998 and 1999 tax returns.  The trial court could not ‘penalize the exercise of the privilege,’ however.  Baxter, 425 U.S. at 318, 96 S. Ct. 1551.  A court may not find voluntary impoverishment based solely on an inference from exercise of the Fifth Amendment privilege without supporting evidence.

“Similarly, a court may not find, based on such an inference, that an individual, including appellant, sought to ‘keep the full amount of his income from being disclosed’ without supporting evidence.  Lastly, a court, based on such an inference, may not find a specific amount of imputed or undisclosed actual income without supporting evidence.”

The Court of Special Appeals sent the case back to the trial court, stating: “On remand, the circuit  court, in its discretion,  may receive additional evidence.”

Long v. Long, 141 Md. App. 341, 785 A.2d. 818 (decided November 29, 2001).

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