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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1718 September Term, 1997 _______________________________

DANIEL J. FREEDENBURG

V.

ELINOR S. FREEDENBURG

_______________________________ Hollander, Salmon, Alpert, Paul E. (Ret., Specially Assigned), JJ. _______________________________ Opinion by Salmon, J. _______________________________ Filed: November 30, 1998

On August 14, 1997, the Circuit Court for Baltimore County granted an absolute divorce that dissolved the marriage of Elinor S. Freedenburg to Dr. Daniel J. Freedenburg. The ground for the The trial judge

divorce was separation for more than two years.

awarded Ms. Freedenburg alimony in the amount of $5,000 per month for five years plus $10,000 in attorney's fees. He also set

forth a formula for calculating a marital award but did not specify the dollar amount of that award or say when it should be paid. Dr. Freedenburg then noted this timely appeal and raises

three questions, which we have reworded: 1. Was the trial judge clearly erroneous when he found that the conduct of Ms. Freedenburg alone was not the sole cause of the dissolution of the marriage? Did the trial judge misinterpret or misapply the law when he awarded temporary alimony to Ms. Freedenburg despite the uncontradicted evidence that her own misconduct was the sole cause for the marriage's dissolution? Did the trial judge incorrectly calculate the value of real property when he excluded as marital debt two loans that Dr. Freedenburg claimed had been made to finance the down payment of real property?

2.

3.

Ms. Freedenburg filed a cross-appeal and asked (1) whether the trial judge erred in failing to award her permanent alimony and (2) whether the case should be remanded with instructions to consider a qualified domestic relations order ("QDRO"), and to express any other monetary award in a dollar amount.

A.

GENERAL BACKGROUND

Dr. Daniel Freedenburg (appellant) and Elinor Freedenburg (appellee) were married on October 2, 1971. On January 2, 1977, The

a son, Daniel Jefferson ("Daniel") was born to the marriage. couple separated on September 19, 1993.

During the 22-year period that the parties lived together, the two enjoyed a very comfortable and economically secure lifestyle. That lifestyle included private schooling for Daniel,

membership in a yacht club, expensive homes and motor vehicles, European travel, and frequent entertainment. Their lifestyle was

made possible by Dr. Freedenburg's substantial earnings as a forensic psychiatrist. In the two years prior to the separation,

Dr. Freedenburg averaged $200,000 annually in income, and in the year of the separation (1993), he earned over $275,000. Ms. Freedenburg graduated with a bachelor of arts degree in English from the University of Maryland in 1967, and five years later she was awarded a master of liberal arts degree from Johns Hopkins University. writing skills. She considers herself to have "excellent"

Ms. Freedenburg worked as a secretary at the

Johns Hopkins University during the first four years of the marriage. Thereafter she did community service and charitable

work but did not have any salaried position outside the home until approximately one year after the separation, when, in the fall of 1994, she secured a job with Billings Temporary -- where she worked as a temporary secretary. From January 1995 to the

present, she has worked as a secretary-receptionist for the -2-

Brightwood Retirement Community. $21,000 per annum.

As of July 1997, her salary was

In 1979 or 1980, Dr. and Ms. Freedenburg moved to a home on Jorrick Road, which is located on Gibson Island. They took up

sailing and became members of the Gibson Island Yacht Club in the early 1980's. Daniel, the couple's son, attended the Gibson

Island Country School. When Daniel was 13, he was enrolled in St. Paul's, a private school located in Baltimore County. To reduce Daniel's need to

travel, Dr. and Ms. Freedenburg bought a townhouse located on Strauff Road in Riderwood, Maryland, where the family stayed on weekdays during the school year. On weekends, holidays, and

during the summer the Freedenburg family lived on Gibson Island. Their next-door neighbors at the Jorrick Road address were Patricia and Arthur Cecil. Sometime in the early part of 1990,

the Cecils moved to a new address on Stillwater Road on Gibson Island. Nevertheless, the Freedenburgs and the Cecils continued In March of 1992, the two families went on a

to be friends.

holiday to England. During the trip to England, Ms. Freedenburg fell in love with Arthur Cecil. Later in the spring of 1992, Ms. Freedenburg

and Mr. Cecil met secretly and announced their love for one another. Between the spring of 1992 and May of 1993, Ms.

Freedenburg and Mr. Cecil carried on a clandestine, yet chaste, affair. The two had frequent rendezvous where they would talk,

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embrace, and kiss.

They did not engage in sexual relations,

however, during this stage of their relationship. As might be expected, Ms. Freedenburg and Mr. Cecil kept their love secret from their spouses. This explains why Mrs.

Cecil, in the early part of 1993, called Dr. Freedenburg and told him that a home next door to theirs on Stillwater Road was about to be put up for sale. Mrs. Cecil believed that it would be nice

if the Freedenburgs could once again be the Cecils' next-door neighbors. Dr. Freedenburg also thought such close proximity to In her

the Cecils would be a good idea, as did Ms. Freedenburg.

words, "I was in love with Art [Cecil] and knew I was in love with Art and . . . in my dream world state I wanted to be next door to him again, which was crazy." With Ms. Freedenburg's

encouragement, and due to the fact that he had always wanted to live near the water, Dr. Freedenburg signed a contract in April 1993 to purchase the Stillwater Road property for $850,000. The

contract was subject to the contingency that the contract would not be binding unless the Freedenburgs were able to sell their home on Jorrick Road. Thereafter, while still unaware of his

wife's involvement with Mr. Cecil, and even though the Jorrick Road property had not yet been sold, Dr. Freedenburg withdrew the contingency and his contract to purchase the Stillwater Road property was accepted. Ms. Freedenburg, in late May or early June 1993, confessed to her husband that she was in love with Mr. Cecil. Dr.

Freedenburg asked his wife to try to work things out and to go to -4-

marriage counseling, but his efforts to salvage the marriage were unavailing. In September 1993, Ms. Freedenburg told her husband

that she was still in love with Mr. Cecil, and the parties separated permanently. Due to the aforementioned troubles in the marriage, Dr. Freedenburg put the Stillwater property in his name alone. A

loan in the amount of $614,979 was made to Dr. Freedenburg by the Old Lion Bank; this loan was secured by a mortgage on the Stillwater Road property signed by Dr. Freedenburg. According to

Dr. Freedenburg's trial testimony, approximately $150,000 of a $200,000 down payment was made from the proceeds of two loans. The first loan was in the amount of $86,372 that was borrowed on a life insurance policy issued by Northwest Insurance Company. The Northwest Insurance Company policy was owned by Dr. Freedenburg's solely owned corporation, i.e., Daniel J. Freedenburg, M.D., Chartered. The second loan was in the amount

of $64,000; this latter sum was raised by borrowing that amount from two insurance policies that were owned by Daniel. When

Daniel was approximately three years old, he inherited income from a trust of which Dr. Freedenburg was the trustee. As a

trustee, Dr. Freedenburg used income from the trust to pay the premiums on the policies. Dr. Freedenburg borrowed the cash

value of the policies owned by Daniel to make a portion of the down payment on the Stillwater Road property. In the spring of 1997, approximately six weeks before the hearing on the divorce, Dr. Freedenburg borrowed approximately -5-

$84,000 from NationsBank and secured the NationsBank loan by placing a second mortgage on the Stillwater Road property. According to Dr. Freedenburg's testimony, $64,000 of the NationsBank loan was used to pay back the monies borrowed from the life insurance policies owned by Daniel. As previously mentioned, the parties separated on September 19, 1993. For one year after that separation, Daniel

lived in the condominium located on Strauff Road in Riderwood. From Monday to Thursday, Dr. Freedenburg lived with Daniel in Riderwood while Ms. Freedenburg lived in the marital home on Gibson Island; from Friday to Sunday Ms. Freedenburg lived at the Riderwood address with Daniel, and Dr. Freedenburg lived on Gibson Island. place and This arrangement allowed Daniel to stay in one

minimized the disruption in his life caused by his After one year, however, Dr.

parents' marital problems.

Freedenburg moved back permanently to Gibson Island and Ms. Freedenburg moved into the condominium in Riderwood, with Dr. Freedenburg paying the mortgages on the Riderwood condominium and the Stillwater Road property. He also paid the mortgages on the

Jorrick Road home -- until it was finally sold more than two years after the parties separated. Almost immediately after the separation, Ms. Freedenburg began to have a sexual relationship with Mr. Cecil. According to

her testimony at the divorce proceedings, the two still date regularly, with Mr. Cecil frequently spending weekend nights at her condominium in Riderwood. Dr. Freedenburg, in turn, began to -6-

date one Gale Ennis in the summer of 1994.

The two traveled Later,

together on occasion and developed a sexual relationship.

Dr. Freedenburg became involved with a Virginia Meade, and they too had sexual relations after the September 1993 separation of the Freedenburgs. Since the breakup of his marriage, Dr.

Freedenburg, who was 53 at the time of his divorce, has had some health problems. In March of 1995, he experienced angina and

discovered he had a 75% blockage of the left anterior coronary artery. Dr. Freedenburg underwent multiple coronary He also had some As a

angioplasties to treat the blocked artery.

problems with hypertension and control of his cholesterol. result of these health problems, Dr. Freedenburg has been

instructed by his physicians not to exceed a 40-hour work week. Ms. Freedenburg, age 51 at the time of the divorce, is in good health. B. MARITAL PROPERTY

At the time of the divorce hearing, the parties owned 25 items of marital property. As he was required to do, the trial

judge evaluated each item of marital property; he also evaluated the marital debt. In the trial judge's opinion, the value of the

home located on Stillwater Road on Gibson Island was $850,000. The marital debt on the Stillwater Road property, according to the trial judge, was $614,979, which was the amount of the first mortgage. The trial court did not, however, include as marital

debt the approximately $150,000 which Dr. Freedenburg borrowed on his two life insurance policies and the policies owned by Daniel. -7-

The total value of all marital property, after giving Dr. Freedenburg a "Crawford Credit"1 in the amount of $38,134 and after deducting marital debt, was $1,651,774. Of that total,

$52,613 was titled in Ms. Freedenburg's name alone, and $120,203 was equity in property titled either in the names of Dr. Freedenburg and Ms. Freedenburg jointly, or as tenants by the entirety. Most of the marital property that was in Dr. The value

Freedenburg's name alone was in various pension plans. of these plans was $1,226,875.

The trial judge provided no explanation as to his reason for making the division of marital property in the way he did. simply said: He

"The court has considered all applicable factors in

deciding a marital property award and will award to the wife (45%) of the remaining assets of the marital property after payment of the marital debt previously found." In her brief, Ms. Freedenburg interprets the trial judge's written order literally, which requires Dr. Freedenburg, after deduction of marital debt, to pay Ms. Freedenburg 45% of the value of all assets that are deemed to be marital property -- even assets that are already in Ms. Freedenburg's name alone or in the name of the parties jointly or as tenants by the entirety.

A "Crawford Credit" is a credit that one co-tenant, who, after separation, lays out money to make mortgage payments or other carrying charges on property held as tenants by the entireties, is usually entitled to receive, absent an agreement between the parties. Crawford v. Crawford, 293 Md. 307 (1982). Prior to a divorce decree, the entitlement of a spouse to such credits is an equitable matter and not a matter of right. Broseus v. Broseus, 82 Md. App. 183, 192 (1990).

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Although there is no way to be sure, this may not have been intended by the trial judge.2 C. FAULT THAT LED TO THE ESTRANGEMENT OF THE PARTIES

The trial judge said at the conclusion of the hearing: I'm also going to say . . . that contrary to [Dr. Freedenburg's] argument, I find as the court did in Bangs and in Wallace, that the subsequent adulteries of both the parties were incidental too and not the cause of the breakup of, the dissolution of the marriage. I couldn't help but to think when the testimony first started with Mrs. Freedenburg where . . . [she] talked about the problems of the voyage on the boat. I don't know what goes into the breakup of a 20-some-year marriage, but it wasn't only an intellectual, at first, and then later physical attraction to the next-door neighbor. There's a lot more that goes into it. So the award will be on that basis. The rest of the thing that had been outlined by counsel I'll take in numerical order and set

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In Ward v. Ward, 52 Md. App. 336 (1982), we explained: The monetary award is thus an addition to and not a substitution for a legal division of the property accumulated during marriage, according to title. It is "intended to compensate a spouse who holds title to less than an equitable portion" of that property. . . . What triggers operation of the statute is the claim that a division of the parties' property according to its title would create an inequity which could be overcome through a monetary award.

Id. at 339-40 (citation omitted). We can think of no equitable reason why the trial court would want to give a spouse a monetary award based on a percentage of the value of property that was already in the receiving spouse's own name, or was in the name of the husband and wife jointly. In the case at hand, 45% of the $1,651,775 is $743,298.75. Because Ms. Freedenburg is already entitled to one-half of the jointly owned property (50% of $120,203) and all of the property titled in her own name ($52,613), if the court's order is read literally, Ms. Freedenburg would receive a total of $856,013.25 ($743,298.75, plus $60,101.50, plus $52,613). Dr. Freedenburg's share of marital property would be $795,761.75, or $60,251.50 less than Ms. Freedenburg would receive.

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forth in an opinion and order that I will get out to you as soon as I can. The court's reference to the "voyage on the boat" related to testimony by Ms. Freedenburg that in the early 1980's the parties purchased a sail boat that was used mainly for "day sailing." They were part of a yacht squad and also sometimes went on weekend sail boat outings. new to sailing. According to Ms. Freedenburg, "I was So we had some captain

I wasn't natural at it.

and mate stress conflicts, I'd say. was, but it could be stressful."

I don't know how typical it

Other than this rather fleeting

reference to "captain and mate stress conflicts" in the "early `80's," Ms. Freedenburg's trial testimony is remarkable in that she never either explicitly or implicitly blamed Dr. Freedenburg for any marital discord. In fact, other than the aforementioned

"captain-mate" discord, she never testified to any discord at all. She was asked how Dr. Freedenburg treated her in the period She replied:

between 1989 and 1993.

He is very bright, and along with that brightness comes a certain amount of arrogance. I mean he pretty much ran the show. I'd say in our own home setting, you know, it just -- he ran the show pretty much. Immediately after this answer, the trial judge asked: "He was sort of the captain of the ship, like he was on the sailboat?" That question was ignored, and Ms. Freedenburg's counsel segued to another subject without ascertaining from Ms. Freedenburg whether the fact that her husband was bright, yet arrogant, and

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"ran the show at home" in any way annoyed her or in any way lead to the estrangement of the parties. D. ALIMONY AWARD

In his written order dated August 14, 1997, the trial judge said: Alimony, the court finds, should be rehabilitative and not permanent. The court has considered all the relevant factors and awards the wife alimony in the amount of five thousand dollars ($5,000) per month for a period of sixty (60) months. The court also finds that the husband owes twenty-seven thousand three hundred ninety four dollars ($27,394) in past alimony, and so orders this to be paid. The trial judge did not give any hint as to how he arrived at the $5,000-a-month alimony figure nor did he give his reasons as to why he thought permanent alimony was unjustified. Additional facts will be set forth as necessary to answer the questions presented.

ISSUE I Appellant argues that the trial judge was clearly erroneous when he concluded that the romance between Ms. Freedenburg and Mr. Cecil was not the sole cause of the dissolution of the marriage. Appellant posits that there simply was no basis in the Moreover, Dr.

record to support that factual finding.

Freedenburg argues -- and we agree -- that this finding of fact was an important one because "the circumstances that contributed to the estrangement of the parties" is a factor that the legislature

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has set forth as a fact that must be evaluated in determining alimony (Md. Code Ann., Fam. Law

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