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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2520 SEPTEMBER TERM, 2001 ____________________________________ MURRAY J. MALIN v. MARCIE BETH MININBERG

Hollander, Sharer, Wenner, William W. (Retired, Specially Assigned) JJ. ___________________________________ Opinion by Hollander, J. ___________________________________ Filed: December 2, 2003

This

case

presents

a

host

of

issues

arising

from

the

dissolution of the marriage of Murray J. Malin, appellant, and Marcie Beth Mininberg, appellee. Their union was brief; the

parties married in November 1996 and separated in November 1999. The couple's only child, Samuel, was born on July 25, 1998.1 Appellee initiated divorce proceedings in June 2000, and the trial consumed five days in July 2001. At the end of trial, the

court issued an oral opinion, which was followed by a written Opinion and Judgment of Absolute Divorce. The court's rulings

spawned this appeal; Malin presents nine questions, which we have reordered slightly: I. Did the court commit reversible error in finding that [the] husband was voluntarily impoverished? II. Did the court err in setting child support at $1,500 per month? III. Was it an abuse of discretion for the court to order [monthly] alimony in the amount of $3,500? IV. Was it an abuse of discretion for the court's award of rehabilitative alimony to extend over five years? V. Did the court exceed its authority in designating the wife's support payment as non-taxable alimony? VI. Did the court exceed its authority in ordering the establishment of what amounts to be a trust account for future expenses of the parties' child? VII. Did the court erroneously apportion between the parties the amount of money to be placed in a trust

Although custody was hotly contested at the outset of the divorce proceedings, the parties eventually reached a custody agreement that is reflected in a Consent Order of January 16, 2001. The parties share joint legal custody, and appellee has primary physical custody of Samuel.

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account for the expenses of the parties' child? VIII. Was it an abuse of discretion for the court to decline to make a monetary award to husband? IX. Was the award [to the wife] of $60,000 in attorney's fees an abuse of discretion? For the reasons stated below, we shall affirm in part, reverse in part, and remand for further proceedings. FACTUAL BACKGROUND2 Appellant was born in 1958. At the time of the marriage, he

was a thirty-eight year old practicing anesthesiologist. Appellee, born in 1969, was twenty-seven years of age when the parties married. Although appellee graduated from law school in 1994, she

failed the Bar examination twice. Appellee decided not to take the exam for a third time because, after working for a general practice lawyer for about nine months, she realized that she "didn't enjoy the practice of law ... at all"; it was "too stressful...." When

the parties met in late 1995, appellee was working at a jewelry store. In April 1996, the parties began to cohabitate at appellant's home in Bethesda. In the summer of 1996, appellee began working She was paid office and

for her father, a physician, on a part-time basis. thirty dollars an hour to handle a variety of

bookkeeping duties, earning about $1,800 biweekly.

Because many pertinent events occurred at or about the same time, we shall generally present our summary by topic rather than by chronology. 2

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Prior to the marriage, appellant disclosed to appellee his history of alcohol and drug addiction. Appellant first began

abusing Valium during his residency at Georgetown University in 1987. That year, appellant spent two months at a treatment

facility in Atlanta. Recognizing that he had a "real problem," and that it was a "life and death matter," appellant also sought treatment Alcoholics from an addictions and doctor, became involved with

Anonymous,

attended

group

therapy

sessions.

According to appellant, he remained sober from 1987 until 1999. Prior to the marriage, Dr. Malin had already purchased a house in Bethesda, although he had little equity in it. The parties

lived in appellant's home for approximately two years after they were married. Appellant also had furniture and an automobile. The parties sold appellant's furniture, netting approximately $23,000; the proceeds went into the "family coffers." Dr. Malin accumulated $290,973.49 in retirement assets prior to the marriage. During the marriage, he made additional Dr. Malin

contributions of $54,358 to his retirement accounts.

also received $29,000 from the settlement of a boundary dispute relating to non-marital property, which the parties used for living expenses. Then, in January 1999, the parties received $73,418 from Guardian Life Insurance in connection with appellant's disability claim. According to appellee, these funds were also used for

household expenses.

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Appellee came to the marriage with $31,000 in a mutual fund, as well as a car and some jewelry. expenses. Her funds were used for family

Moreover, for a period of approximately one year, while

the parties' new home in Potomac was under construction, they lived with appellee's parents. According to appellee, by living with her parents for a year, they "saved a lot of money," which they used for their new home. The parties settled on their new house in June 1999, just a few months before they separated. The purchase price was $782,581, plus settlement costs. In addition to a $60,000 deposit, the

settlement sheet reflects that the parties borrowed $600,000 to fund the purchase, and paid another $145,000 at closing. The

parties sold the house less than a year after settlement, in April 2000, for $975,000. The sale price included a built-in "high-

definition" television that cost the parties about $13,000. Apart from the mortgage, the funds used by the parties to acquire the marital home came largely from appellant's retirement account, most of which contained non-marital funds. It is

undisputed that appellant withdrew about $200,000 from his various retirement account for that purpose. The parties used a portion of that money to pay fees and taxes generated by appellant's early withdrawal of his retirement funds. Appellee responsible testified for the that, during the marriage, they she "was in

house."

Moreover,

while

lived

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appellant's home, the parties decided to renovate it, because it "needed a lot of repairs in order to be sold." Appellee testified:

... I was responsible for hiring all the contractors, overseeing the work, making sure it got done, meeting the contractors at the house. I was responsible for all the grocery shopping, the dry cleaning, the upkeep of the house, making sure it was clean and everything was taken care of. As noted, Samuel was born on July 25, 1998. According to

appellee, he was a "very difficult" baby; he cried a lot, had colic, and "rarely slept." developmental disabilities. It is undisputed that Sam has serious He was diagnosed with "pervasive

developmental disorder, not otherwise specified," an autism-related disorder characterized by lack of socialization and communication.3 Although appellee "worked until the day before [she]

delivered," and went back to work "two weeks later," she decided in July 2000 to reduce her work schedule from thirty hours a week to fifteen, in order to devote more time to Sam's needs. Appellee

explained that she did so because caring for Sam "became a fulltime job just to explore programming, find programming, all the insurance and all the billing and the reading and the educating." Appellee also drives Sam to therapy sessions at least four times a week. Given her parental responsibilities and challenges, appellee added that it was "really hard" to "squeeze" in work. Further,

The record is unclear as to whether Samuel was diagnosed in 1999 or 2000. See, e.g., E. 106 and E. 222. 5

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appellee testified: It's

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