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Summary of Opinion: Pamela H. Jeffcoat v. James W. Jeffcoat (Ct. Spec. App. of Md., Nov. 30, 1994)

Factual and Procedural Background

The parties married in 1977 and had two children (born 1983 and 1989). Appellant Pamela Jeffcoat filed for divorce from appellee James Jeffcoat. The parties accumulated substantial assets during the marriage (appellant alleged net worth of approximately $763,000 at separation). In 1991 appellee left the family home; following a meeting in April 1992 appellant asked for a divorce, appellee briefly returned and then left. Appellant alleges that upon separation appellee withdrew about $218,000 in jointly titled liquid funds into accounts in his name, borrowed approximately $82,000 on a home equity line, and spent nearly $300,000 during roughly one year of separation, leaving only about $68,000 of the joint funds by trial.

Appellee received $41,617.69 in life insurance proceeds in 1991 (policy transferred to him in 1979), which were placed initially in a joint checking account and later in an account in appellee's name. At trial the court awarded appellant one-half of approximately $17,000 in premiums paid on the policy during the marriage, deemed the remainder of the proceeds non-marital, and granted appellant a monetary award of $29,473. Appellant appealed.

This appeal was heard by the Court of Special Appeals of Maryland; the trial judge was Leonard S. Jacobson of the Circuit Court for Baltimore County.

Legal Issues Presented

  1. Did the court err by not including some of the value of marital property dissipated by appellee after separation and before trial in the value of marital property from which it could make a monetary award when appellee, immediately upon separation, removed virtually all of the parties' jointly titled liquid assets from their joint names to an account in his name alone and then over the next 13 months spent substantially all those funds?
  2. Did the court err in finding that a portion of life insurance proceeds paid more than two years prior to trial were non-marital when: (1) there was no proof of a gift of the policy, (2) there was no allegation that the policy had any value at the time of the transfer, (3) the policy was maintained only by marital funds, (4) there was no tracing of the policy proceeds to any existing asset, (5) the proceeds of the policy were commingled with marital property when received two years before trial, and (6) the commingled proceeds were further commingled with other marital assets by appellee?
  3. Is it contrary to the Family Law Statute to order the parties to pay work related day care expenses on the basis of their pro rata incomes after adjustment of their incomes for child support, and did the court err in not making a finding regarding the parties' incomes when the amount of income was disputed?
  4. Did the trial court err by not properly calculating the monetary award using the three step process of (1) identifying marital property, (2) valuing marital property, and (3) granting a monetary award?

Arguments of the Parties

Appellant's Arguments

  • The trial court should have included the value of marital property dissipated by appellee after separation when making the monetary award because appellee withdrew and spent substantial joint funds after separation.
  • The life insurance proceeds received by appellee in 1991 were marital property (not non-marital) because the transfer records read "for value received," the policy was maintained with marital funds, there was no proof of a gift, no proof of preexisting value at transfer, no tracing of proceeds to an existing asset, and the proceeds were commingled with marital funds.
  • The trial court erred by calculating day care and related expenses on a pro rata basis after adjusting incomes for child support (the court allowed appellee to deduct child support from his income and credit it to appellant in computing proportional shares), which appellant contends is improper under the Family Law statute.
  • The trial court failed to follow the statutory three-step process (identify marital property, value marital property, grant monetary award) and overlooked or failed to address certain assets (e.g., remaining funds in an account, a promissory note, disputed bank account value, household furnishings, "cash on hand").

Appellee's Arguments

  • The court did not need to include dissipated funds because the judge applied controlling precedent (the court indicated reliance on Ross and related authority).
  • The equitable distribution need not be an equal division; appellee maintained the trial judge followed the required statutory steps and properly characterized assets.
  • Appellee challenged the award of rehabilitative alimony (arguing lack of need or intention to rehabilitate) and objected to the court's attempted division of EE bonds on grounds that ownership of bonds cannot be transferred by the court.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sharp v. Sharp, 58 Md. App. 386, 473 A.2d 499 (1984) Where property was intentionally dissipated to avoid inclusion in a monetary award, such dissipation is a fraud on marital rights and dissipated property should be considered as extant marital property. Quoted as a correct statement of law on dissipation; used as a foundation for discussing standards and burden regarding dissipation.
Levin v. Levin, 166 Md. 451, 171 A. 77 (1934) Cited in Sharp for the proposition that intentional dissipation can be a fraud on marital rights. Indirectly cited via Sharp to support the characterization of intentional dissipation as fraud on marital rights.
Ross v. Ross, 90 Md. App. 176, 600 A.2d 891 (1992) Stated that when property was dissipated to the point of being a fraud on marital rights, the dissipated property should be considered extant for valuation. The trial court referenced Ross; the appellate court discussed Ross's language and clarified that dissipation need not be proven by an elevated standard of proof.
Aeropesca Ltd. v. Butler Aviation International, Inc., 44 Md. App. 610, 411 A.2d 1055 (1980) Stated that fraud can only be found by clear and convincing evidence. Used to note that the trial court appeared to require a fraud finding (clear and convincing standard) before finding dissipation, and the appellate court rejected imposing that elevated standard for dissipation.
Dixon v. Process Corp., 38 Md. App. 644, 382 A.2d 893 (1978) The same quantum (clear and convincing) is necessary to establish constructive fraud. Cited to explain the trial court's apparent reliance on a high standard (clear and convincing) for fraud/constructive fraud and to contrast appropriate standards for dissipation.
Klingberg v. Klingberg, 68 Ill. App.3d 513, 386 N.E.2d 517 (1979) Used for the proposition that dissipation may be found where one spouse uses marital property for personal benefit for a purpose unrelated to the marriage during its breakdown. Cited as part of the survey of jurisdictions adopting Illinois' approach to dissipation.
Monte v. Monte, 212 N.J. Super. 557, 515 A.2d 1233 (Ct.App. Div. 1986) Cited as an example of another jurisdiction treating intentional dissipation as a fraud on marital rights. Referenced among jurisdictions that consider dissipation when dividing marital property.
Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257 (1990) Relied on Illinois law to define dissipation and held burden is on dissipating spouse to prove expenditures were for a proper purpose by a preponderance of the evidence. Used to illustrate other states' approaches and to discuss burden shifting once prima facie dissipation is shown.
Melrod v. Melrod, 83 Md. App. 180, 574 A.2d 1 (1990) Property acquired during marriage is marital unless directly traceable to a nonmarital source; commingling can prevent direct tracing, making property marital. Applied to conclude that commingled insurance proceeds could not be traced as non-marital and therefore should be treated as marital property.
Rock v. Rock, 86 Md. App. 598, 587 A.2d 1133 (1991) Discussed burden allocation regarding dissipation (placed burden on dissipating spouse). Cited in the survey of Maryland cases addressing burden and proof for dissipation.
In re Marriage of Partyka, 158 Ill. App.3d 545, 511 N.E.2d 676 (1987) Once a spouse has liquidated marital assets, the charged party must establish by clear and specific evidence how funds were spent; general/vague statements inadequate. Used in surveying Illinois authority requiring specificity from dissipating spouse once prima facie dissipation is established.
In re Marriage of Smith, 128 Ill. App.3d 1017, 471 N.E.2d 1008 (1984) Examined burden of proof on dissipating spouse and related authorities; discussed evidentiary specificity and tracing. Cited in the discussion of differing state approaches and burden allocation regarding dissipation.
Barriger v. Barriger, 514 S.W.2d 114 (Ky. 1974) Applied in discussions of dissipation/fraud analogies in other jurisdictions. Cited as one of several out-of-state authorities supporting the court's survey of dissipation jurisprudence.
Cooksey v. Cooksey, 280 S.C. 347, 312 S.E.2d 581 (1984) Cited among other jurisdictions' decisions considered in Illinois courts' analyses. Referenced in the appellate court's review of how other states treat dissipation.
E.E.C. v. E.J.C., 457 A.2d 688 (Del. 1983) Cited among authorities examined in out-of-state dissipation analyses. Included in the appellate court's survey of dissipation precedent.
In re Marriage of Murphy, 259 Ill. App.3d 336, 631 N.E.2d 893 (1994) Noted that once prima facie dissipation is made, the charged party must establish by clear and convincing evidence how funds were spent; general statements are insufficient. Used to illustrate Illinois' more stringent evidentiary expectations after prima facie showing.
Manaker v. Manaker, 11 Conn. App. 653, 528 A.2d 1170 (1987) Held that the party in control of assets and charged with dissipation has the burden of accounting for those assets by a preponderance of the evidence. Presented as an example of states requiring only preponderance and attributing the burden of accounting to the dissipating spouse.
Colburn v. Colburn, 15 Md. App. 503, 292 A.2d 121 (1972) Discussed voluntary impoverishment to fraudulently deprive a spouse of alimony; applied by analogy to dissipation in Sharp. Cited to support the proposition that principles applicable to alimony fraudulent impoverishment can inform dissipation analysis for monetary awards.
Choate v. Choate, 97 Md. App. 347, 629 A.2d 1304 (1993) Stated that the burden of persuasion and initial production in showing dissipation is on the party alleging it; once a prima facie case is made, burden shifts to dissipating party to explain expenditures. Cited to describe the allocation of burdens in dissipation claims and to support the court's instruction on burden shifting.
Schweizer v. Schweizer, 301 Md. 626, 484 A.2d 267 (1984) Explained the statutory three-step process for monetary awards under Md. Code, § 8-205: (1) determine marital property; (2) value marital property; (3) grant monetary award as an adjustment of equities. Quoted to set forth the required three-step statutory framework that the trial court should follow when making a monetary award.
Holston v. Holston, 58 Md. App. 308, 473 A.2d 459 (1984) Referenced in appellee's challenge to rehabilitative alimony; Holston involved reversal of rehabilitative alimony and imposition of indefinite alimony in that case. Discussed by the court and distinguished from the present facts; appellate court found Holston did not support appellee's position.
Hull v. Hull, 83 Md. App. 218, 574 A.2d 20 (1990) Addressed denial of alimony where the wife was self-supporting and had anticipated assets; cited by appellee in arguing against rehabilitative alimony. Cited and distinguished; the appellate court found the record here supported rehabilitative alimony and did not adopt appellee's reliance on Hull.
Blake v. Blake, 81 Md. App. 712, 569 A.2d 724 (1990) Discussed the court's inability to transfer ownership of certain instruments (context: EE bonds). Applied to conclude that the trial court should not attempt to transfer ownership of EE bonds but should value and, if appropriate, make a monetary award under the statutory scheme.
Daniels v. Daniels, 557 S.W.2d 702 (Mo. App. 1977) Cited as an example of courts disregarding fraudulent conveyances intended to hinder a spouse, in support of treating dissipation as fraud on marital rights. Included in the court's survey of out-of-state authority supporting the approach to dissipation as akin to fraudulent conveyance.

Court's Reasoning and Analysis

The court addressed each principal contention in turn.

On dissipation (Issue I), the court examined precedent and determined the trial court erred by effectively requiring a finding of fraud (which requires clear and convincing evidence) before finding dissipation. The appellate court concluded dissipation should be governed by the ordinary civil standard (preponderance of the evidence) rather than an elevated fraud standard. The court surveyed Maryland and out-of-state authority, explaining that once the accusing party establishes a prima facie case of dissipation (here, appellee's alleged spending of nearly $300,000 in about one year following separation), the burden shifts to the dissipating spouse to produce evidence that expenditures were bona fide family or marital expenses. The court found appellant had made a prima facie showing of dissipation and instructed that appellee's expenditures should be evaluated on remand to determine whether dissipation occurred; if dissipation is found, the dissipating party should bear the loss.

On the life insurance proceeds (Issue II), the court accepted the trial court's factual finding that the policy was a gift to appellee when assigned in 1979. However, the appellate court held the trial court erred in allowing appellee to trace $41,617 of proceeds as non-marital after those proceeds had been commingled with substantial marital funds in T. Rowe Price accounts and the commingled account was substantially depleted. Relying on Melrod, the court explained that when non-marital funds are commingled with marital funds such that the non-marital portion cannot be directly traced, the property becomes marital; thus, the insurance proceeds could not be traced as non-marital.

On the income adjustment and day care allocation (Issue III), the court found the trial judge improperly computed adjusted incomes by allowing appellee to deduct child support and credit appellant with that amount in computing their relative shares for day care and related expenses. The court observed this method reduced appellee's income and increased appellant's income in a way that altered each party's proportional share to appellant's disadvantage, and that the Family Law statute permits alimony, not child support, to be deducted/credited in computing income. The appellate court instructed the trial judge on remand to recompute child support based on actual incomes as found and to include appropriate day care and related expenses in the child support award.

On the three-step monetary award process and alleged overlooked assets (Issue IV), the court cited Schweizer's articulation of the statutory three-step approach (identify marital property, value marital property, grant monetary award). The appellate court expressed concern that the trial judge may have overlooked certain assets (e.g., remaining funds in an account, a promissory note, disputed bank account value, furnishings, cash on hand). Because the case was to be remanded for reconsideration of dissipation, the court directed the trial court upon remand to reassess and ensure all marital property is considered and to recalculate an appropriate monetary award consistent with the statutory process.

On rehabilitative alimony (Issue V), the appellate court rejected appellee's claim that awarding rehabilitative alimony was an abuse of discretion. The court noted the trial court had before it a financial statement showing appellant's monthly net income of $2,075 and monthly living expenses of $6,719, and concluded this evidence did not permit reversal for abuse of discretion.

On EE bonds (Issue VI), the court agreed with appellee that the trial court should not attempt to transfer ownership of bonds directly. Instead, the bonds should be classified and valued as marital or non-marital under Md. Code Fam.Law § 8-203, and, if inequity results from titled ownership, the court should consider § 8-205 factors to decide whether a compensatory monetary award is appropriate.

Holding and Implications

Holding: The appellate court affirmed in part, reversed in part, and remanded the case to the Circuit Court for Baltimore County for further proceedings consistent with the opinion. Costs were ordered to be paid by appellee.

Implications:

  • The trial court's apparent requirement of a fraud finding (clear and convincing evidence) before finding dissipation was erroneous; dissipation should be determined by the ordinary civil standard (preponderance of the evidence) with burden-shifting once a prima facie case is made.
  • Funds or proceeds that have been commingled with marital funds such that the non-marital portion cannot be directly traced should be treated as marital property for valuation and distribution purposes.
  • The trial court's method of adjusting incomes for day care obligations by deducting child support from one party and crediting it to the other was improper under the Family Law provision cited; child support should not be treated like alimony for that purpose.
  • On remand the trial court must reconsider dissipation, reevaluate and value all marital property per the statutory three-step process, recompute child support and day care allocation consistent with the opinion, and address EE bonds through valuation and potential monetary adjustment rather than direct title transfer.
The opinion did not purport to set new statutory law but clarified application of existing principles and directed specific remedial steps for the trial court on remand.

PAMELA H. JEFFCOAT v. JAMES W. JEFFCOAT.

FISCHER, Judge.

Pamela H. Jeffcoat appeals from a judgment of the Circuit Court for Baltimore County arising out of divorce proceedings brought by her against James W. Jeffcoat, appellee.

In this appeal, appellant raises the following issues:

I. Did the court err by not including some of the value of marital property dissipated by appellee after separation and before trial in the value of marital property from which it could make a monetary award when appellee, immediately upon separation, removed virtually all of the parties' jointly titled liquid assets from their joint names to an account in his name alone and then over the next 13 months spent substantially all those funds?
II. Did the court err in finding that a portion of life insurance proceeds paid more than two years prior to trial were non-marital when: 1) there was no proof of a gift of the policy, 2) there was no allegation that the policy had any value at the time of the transfer, 3) the policy was maintained only by marital funds, 4) there was no tracing of the policy proceeds to any existing asset, 5) the proceeds of the policy were commingled with marital property when received two years before trial, and 6) the commingled proceeds were further commingled with other marital assets by appellee?
III. Is it contrary to the Family Law Statute to order the parties to pay work related day care expenses on the basis of their pro rata incomes after adjustment of their incomes for child support, and did the court err in not making a finding regarding the parties' incomes when the amount of income was disputed?
IV. Did the trial court err by not properly calculating the monetary award using the three step process of (1) identifying marital property, (2) valuing marital property, and (3) granting a monetary award?

Facts

The parties married in 1977, and two children were born of the marriage, James Richard, born in 1983, and Evan Cleave, born in 1989. Appellant insists the union was problematic from its outset. Appellee contends there were few stresses in the marriage until 1991, when appellee began law school. In 1991, appellee left the family home, apparently at appellant's suggestion. At a meeting on or about April 27, 1992, appellant informed appellee that she desired a divorce. Appellee responded by returning to live in the family home. Appellant's attorney threatened court action if appellee did not leave the family home and appellee complied.

During the course of the marriage, the parties were able to accumulate substantial assets. According to appellant, their net worth totalled $763,000 at the time of separation. Upon leaving, appellee withdrew joint funds totaling approximately $218,000 and placed them in his name alone. He also borrowed the maximum amount possible on their home equity line of credit, approximately $82,000. Appellee placed these funds in a bank account in his name. In addition to his control of the parties' joint funds, appellant avers that appellee had income from earnings and other sources totaling $88,000. Appellant alleges appellee spent almost $300,000 during the one year period of the parties' separation. According to appellant, appellee had spent all but approximately $68,000 of the joint funds by the trial date.

On October 23, 1979, appellee's father transferred the ownership of Metropolitan Life Insurance Policy # 716102822 PR on the father's life to appellee. When transferred, the policy was subject to a loan of $6,494. Appellee received $41,617.69 from Metropolitan Life upon his father's death in 1991. The proceeds from the insurance policy were placed in a joint checking account and, after the separation, in an account in appellee's name.

The trial court ruled that appellant could only receive one half of $17,000 in premiums paid on the policy during the course of the marriage. The remainder of the insurance policy was deemed by the trial court to be non-marital property of appellee. A monetary award of $29,473 was granted to appellant. Appellee was permitted to retain the proceeds of the insurance policy on appellee's deceased father as non-marital funds.

I.

Appellant's contention that the court erred in failing to find that appellee dissipated marital funds rests primarily on an allegation that the trial judge used an incorrect standard in evaluating appellee's actions in spending marital monies. Appellant contends that the trial judge required that appellant prove fraud in order to show dissipation of assets had taken place. In Sharp v. Sharp, 58 Md. App. 386, 399, 473 A.2d 499 (1984), writing for this Court, Judge Alpert stated:

[W]here a chancellor finds that property was intentionally dissipated in order to avoid inclusion of that property towards consideration of a monetary award, such intentional dissipation is no more than a fraud on marital rights, see Levin v. Levin, 166 Md. 451, 453[, 171 A. 77] (1934).

This correct statement of the law was expressed slightly differently in Ross v. Ross, 90 Md. App. 176, 190, 600 A.2d 891, vacated on other grounds, 327 Md. 101, 607 A.2d 933 (1992), wherein we observed:

When a court finds that property was dissipated to the point of being a fraud on marital rights, it should consider the dissipated property as extant to be valued with other existing marital property.

The quoted language in Ross apparently led the trial court in this case to say "I can't find in this case, based on the evidence I have heard, that there was a use of marital funds such as would constitute a fraud on the marital rights of the parties, and, therefore, I grant the motion on the issue of dissipation of assets."

It appears the court believed it had to find fraud before it could find dissipation of marital funds. Fraud can only be found by clear and convincing evidence. Aeropesca Ltd. v. Butler Aviation International, Inc., 44 Md. App. 610, 623, 411 A.2d 1055 (1980). The same quantum of proof, clear and convincing evidence, is necessary to establish constructive fraud. Dixon v. Process Corp., 38 Md. App. 644, 657, 382 A.2d 893 (1978). The trial court's finding is understandable in view of the holding in Ross, supra, relied upon by the trial court. Upon reflection, however, we see no adequate reason to require a higher degree of proof to establish dissipation than any other aspect of marital property. Under a proper standard, the trial court should be able to find dissipation by a preponderance of the evidence.

The case at bar is a perfect illustration of the injustice that may result by imposing an unreasonable burden of proof on a party who accuses the other of dissipation of assets. The parties in this case over a period of less than fifteen years accumulated substantial assets; although both were employed, neither had a large income. In spite of the expense of raising two children, and even sending them to private schools, they had acquired a net worth of over $760,000. It is clear that they were able to accomplish this by hard work, frugality, and sound fiscal management. Notwithstanding this past record of sound fiscal management, in one year following the separation of the parties, appellee spent almost $300,000 of the parties' money. This should be sufficient to establish a prima facie case of dissipation.

Many state courts have considered dissipation of marital assets in determining the division of marital property. In Sharp v. Sharp, 58 Md. App. 386, 473 A.2d 499 (1984), this Court held that

where a chancellor finds that property was intentionally dissipated in order to avoid inclusion of that property towards a consideration of a monetary award, such intentional dissipation is no more than a fraud on marital rights, see Levin v. Levin, 166 Md. 451, 453, 171 A. 77 (1934), and the chancellor should consider the dissipated property as extant marital property . . . to be valued with other existing marital property.
Sharp, 58 Md. App. at 399, 473 A.2d 499. In its discussion of dissipation, the Court examined other jurisdictions that have addressed intentional dissipation of marital assets for the purpose of avoiding equitable distribution. Foremost is Illinois, which has statutory law expressly providing that a chancellor in dividing marital property should consider dissipation of assets. Ill. Ann. Stat. ch. 40, § 503(c)(1) (Smith-Hurd 1980 Vol., 1983-84 Cum. Supp.). This Court, in Sharp, 58 Md. App. at 401, 473 A.2d 499, cited Klingberg v. Klingberg, 68 Ill. App.3d 513, 25 Ill.Dec. 246, 250, 386 N.E.2d 517, 521 (1979), for the proposition that "[d]issipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown."

A number of states have statutes that specifically list dissipation of assets or fraudulent conveyances as a factor for the court to consider. Lawrence J. Golden, Equitable Distribution of Property, § 8.15 (1983, 1993 Cum. Supp.) (listing Arizona, Illinois, Indiana, Montana, and West Virginia).

Some states that have addressed dissipation of marital assets have followed Illinois law. Courts generally seem to adopt the Illinois Court's definition of dissipation. See e.g., Monte v. Monte, 212 N.J. Super. 557, 515 A.2d 1233 (Ct.App. Div. 1986); Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257 (1990).

In Melrod v. Melrod, 83 Md. App. 180, 574 A.2d 1, cert. denied, 321 Md. 67, 580 A.2d 1077 (1990), this Court held that there was no evidence suggesting that the husband had dissipated proceeds from a sale of a partnership in order to deprive the wife of her marital rights. Melrod, 83 Md. App. at 194, 574 A.2d 1. This suggests that, to prove dissipation, the party claiming dissipation must present affirmative evidence. In Rock v. Rock, 86 Md. App. 598, 587 A.2d 1133 (1991), this Court placed the burden on the dissipating spouse. Rock, 86 Md. App. at 619-620, 587 A.2d 1133. Recently, in Ross v. Ross, 90 Md. App. 176, 190, 600 A.2d 891 (1992), this Court cited Sharp and held that "[t]he spouse alleging dissipation has the burden of proving dissipation and the value of such property."

Other courts disagree as to who bears the burden of proving the purpose of a conveyance. In some states, once the injured spouse makes a prima facie case that marital funds were spent once the marriage was breaking up, the burden shifts to the dissipating spouse to prove that the funds were spent for a proper purpose. Golden, at 375-376 (1993 Supp.). In In re Marriage of Partyka, 158 Ill. App.3d 545, 110 Ill.Dec. 499, 511 N.E.2d 676 (1987), the court held:

Once it is established that one party has liquidated marital assets, the party charged with dissipation must establish by clear and specific evidence how the funds were spent; general and vague statements that they were spent on marital expenses or bills are inadequate to avoid a finding of dissipation.
Partyka, 110 Ill.Dec. at 503, 511 N.E.2d at 680 ( citing In re Marriage of Smith, 128 Ill. App.3d 1017, 84 Ill.Dec. 242, 471 N.E.2d 1008 (1984)). In In re Marriage of Smith, 128 Ill. App.3d 1017, 84 Ill.Dec. 242, 471 N.E.2d 1008 (1984), the Illinois court examined many of its own opinions as well as the decisions of other jurisdictions, including Barriger v. Barriger, 514 S.W.2d 114 (Ky. 1974), Cooksey v. Cooksey, 280 S.C. 347, 312 S.E.2d 581 (1984), and E.E.C. v. E.J.C., 457 A.2d 688 (Del. 1983), in order to determine that the burden of proof is on the party charged with the dissipation. More recently, the court noted:

Once a prima facie case of dissipation is made, the party charged with dissipation must establish by clear and convincing evidence how the funds were spent; general and vague statements are not enough.
In re Marriage of Murphy, 259 Ill. App.3d 336, 197 Ill.Dec. 671, 673, 631 N.E.2d 893, 895 (1994). Illinois appears to be the only state requiring the dissipating spouse to prove by clear and convincing evidence that the funds were used for a marital purpose. See Golden, at 384 (1993 Supp.).

Whereas in Illinois the dissipating spouse must prove by clear and convincing evidence that the property was not dissipated, other states require proof only by a preponderance of the evidence. In Manaker v. Manaker, 11 Conn. App. 653, 528 A.2d 1170 (1987), the Connecticut court held that the "party which has control over marital assets and is charged with their dissipation has the burden of accounting for those assets." The court continued, "This burden is met by a preponderance of the evidence." Manaker, 528 A.2d at 1173. The Connecticut court referred to In re Marriage of Smith, 128 Ill. App.3d 1017, 84 Ill.Dec. 242, 471 N.E.2d 1008 (1984), and opined that the Illinois court's use of the language of "clear and specific evidence" referred to "the probative value of evidence and not the quantum of the evidence which was necessary to sustain the burden of proof." Manaker, 528 A.2d at 1173.

The Court of Appeals of Virginia, in Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257 (1990), relied on Illinois law to define dissipation. Citing In re Marriage of Smith, 128 Ill. App.3d 1017, 84 Ill.Dec. 242, 471 N.E.2d 1008 (1984) and Manaker v. Manaker, 11 Conn. App. 653, 528 A.2d 1170 (1987), the court stated that once the aggrieved spouse shows marital funds were either withdrawn or used after the breakdown, the burden rests with the party charged with the dissipation to prove the money was spent for a proper purpose. Clements, 397 S.E.2d at 261. The court then held that the burden is on the dissipating spouse to prove by a preponderance of the evidence that the funds were used for some proper purpose. Clements, 397 S.E.2d at 261.

Although some courts refer to dissipation of marital assets as a fraudulent conveyance, they do not seem to require that the injured spouse prove dissipation by an elevated standard. See Monte v. Monte, 212 N.J. Super. 557, 515 A.2d 1233 (1986) (citing Sharp and holding that intentional dissipation is no more than a fraud on marital rights); Daniels v. Daniels, 557 S.W.2d 702, 705 (Mo. App. 1977) ("This court should look through his transparent maneuver just as courts have always disregarded fraudulent conveyances employed to hinder and delay creditors."); Barriger v. Barriger, 514 S.W.2d 114 (Ky. 1974).

A survey of case law does not support the argument that the injured spouse must prove the dissipation of assets by clear and convincing evidence. To analogize dissipation of assets to be a fraud on marital rights does not require a standard any higher than is used for any other aspect of marital property. In Sharp, the Court cited Colburn v. Colburn, 15 Md. App. 503, 292 A.2d 121 (1972). In Colburn, the Court held that the purpose of the husband's acts was to impoverish himself voluntarily "so as to fraudulently deprive his wife of her claim for alimony." Colburn, 15 Md. App. at 515-516, 292 A.2d 121. The Sharp Court then stated that, even though Colburn dealt with alimony, there was no reason why the same principles involving fraud and intentional dissipation could not be applied to the determination of a monetary award. Sharp, 58 Md. App. at 400, 473 A.2d 499.

The burden of persuasion and the initial burden of production in showing dissipation is on the party making the allegation. Choate v. Choate, 97 Md. App. 347, 366, 629 A.2d 1304 (1993). That party retains throughout the burden of persuading the court that funds have been dissipated, but after that party establishes a prima facie case that monies have been dissipated, i.e. expended for the principal purpose of reducing the funds available for equitable distribution, the burden shifts to the party who spent the money to produce evidence sufficient to show that the expenditures were appropriate.

It appears that appellant has established a prima facie showing of dissipation. The burden is now upon appellee to produce evidence of the bona fides of his expenditures. Appellee's expenditures should be evaluated by the court to determine whether dissipation has taken place. The court must determine whether joint funds have been spent for other than family purposes with the intention of reducing the amount of money available to the court for equitable distribution. If the court finds that monies have been dissipated, the party responsible should bear the loss.

II.

In 1979, Cyril Jeffcoat, appellee's father, assigned ownership of a life insurance policy on Cyril's life to appellee. Appellant contends that the proceeds of the policy are marital property because the transfer instruments indicate the policy was transferred "for value received." Appellee testified the policy was a gift from his father, and the trial court so found. We do not believe that the trial judge was clearly erroneous in reaching the conclusion that the policy was a gift and, therefore, non-marital property. When received, the policy was subject to a loan. This loan was repaid with marital funds, and the policy premiums were paid with marital funds. The court credited appellant with one-half of the approximately $17,000 in premiums paid and deemed that the remainder of the $41,617 received was the non-marital property of appellee. Upon receipt of the policy proceeds after Cyril's death, appellee placed the proceeds in a T. Rowe Price account along with other marital funds.

During the course of the separation, appellee took control of all of the liquid assets of the parties, approximately $200,000. He put those assets in T. Rowe Price accounts. It appears from the evidence that the proceeds of the insurance policy were commingled with marital funds of the parties. The trial court credited appellant with one-half of the premiums paid from marital funds, and permitted appellee to trace the remaining $41,617 in the T. Rowe Price account as non-marital funds of appellee. It appears to us that, in doing so, the court erred.

At the time the Rule S74 schedule was filed, there was $67,927 in T. Rowe Price account # 610099506-4. The court found that $41,617 of those funds were Cyril's life insurance proceeds. The fallacy in this approach is the assumption that appellee, after commingling the $41,617 along with substantial marital funds in a single account, spent only the marital funds. This is not possible. Since the marital and non-marital funds were commingled, it is impossible to trace $41,617 as non-marital funds. In May, 1992, the account into which appellee deposited the proceeds of insurance contained $262,113. At the time of trial, the account contained $67,927. In Melrod v. Melrod, 83 Md. App. 180, 187, 574 A.2d 1 (1990), Judge Bloom, writing for this Court, stated:

Property acquired by purchase during the marriage and not excluded by valid agreement between the parties, is marital property unless it can be traced directly to a nonmarital source of funds or property. FL, § 8-201(e)(2)(iv) is quite specific; it excludes from marital property any property acquired during the marriage that is directly traceable to a non marital source. `Directly traceable' is not synonymous with `attributable.' Since Mr. Melrod commingled his income from non-marital sources with his marital income, no specific sum of money used to acquire property or reduce an indebtedness on any property can be directly traced to any source. This inability to trace property acquired during the marriage directly to a non-marital source simply means that all property so acquired was marital property. (Citation omitted. Emphasis in original.)

Because the insurance proceeds were commingled with marital funds in an account that at one time totalled $262,113, and the commingled funds were spent down to $67,927 at the time of trial, it is impossible to trace any of the remaining funds as non-marital.

III.

The trial judge ordered appellee to pay child support of $300 per month for each child, a total of $600. Appellant does not take issue with the $600 in child support ordered by the court. In a separate provision, the judge ordered the parties to divide, in proportion to their respective incomes, day care expenses and summer camp expenses. He defined income to include appellant's receipt of alimony and child support. Appellant objects because the trial court permitted appellee to deduct child support from his income and add the amount to appellant's income in determining each of their adjusted incomes. Appellant agrees that preexisting child support may be deducted, but contends that is not applicable in this case.

It appears that appellant is correct. The trial judge's method improperly determines the parties' income. Appellee's income is diminished while appellant's income is increased. This method of analysis alters to appellant's disadvantage the proportion that each must pay. In addition, this is contrary to Md. Code (1984, 1991 Repl. Vol., 1994 Cum. Supp.), § 12-204(a)(2)(ii) of the Family Law Article, which permits alimony payments, not child support, to be deducted from and credited to income.

In addition, appellant complains that the trial court improperly calculated appellee's income by failing to consider his bonus and the value of certain benefits. It is not clear to us whether the trial judge considered those aspects.

On remand, the trial judge should recompute the child support based upon the actual incomes of the parties, as found by the trial judge, and include in the amount of child support awarded an appropriate amount for day care and related expenses.

IV.

Appellant avers that the trial court erred in fixing the monetary award in a number of areas. Appellant notes that the judge failed to utilize the three-step process in determining a monetary award as set forth in Md. Code (1984, 1991 Repl. Vol.), § 8-205 of the Family Law Article. As explained in Schweizer v. Schweizer, 301 Md. 626, 629-630, 484 A.2d 267 (1984), the three-step process requires:

(1) [T]he court shall determine which property is marital property. . . . § 8-203(a).
(2) The court shall determine the value of all marital property. § 8-204.
(3) [Upon compliance with (1) and (2)], the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. The court shall determine the amount and the method of payment of a monetary award. . . . § 8-205(a).

Appellant contends that the trial judge, in making the monetary award, granted appellant an equal division in certain assets but, without explanation, overlooked other assets. For example, the judge disposed of $41,617 in insurance proceeds (previously discussed in section II) but ignored the $26,310 remaining in the account, effectively leaving it with appellee. Appellant also refers to a promissory note in appellee's name that the court failed to address. Appellant also contends that the disputed value of a Provident Savings Bank account # 2091364 was overlooked. Appellant claims the court did not address the dispute over furnishings located at 12 Jones Valley Circle, appellee's residence, valued at $5,000 by appellee and $10,000 by appellant. In addition, appellee referred in his testimony to "cash on hand" and cash in Maryland National Bank totalling $14,730, which the court failed to consider.

Appellee, on the other hand, insists that the equitable division does not need to be equal. Appellee maintains the trial judge followed the required steps.

It appears from our review of the record that the trial judge may have inadvertently overlooked certain assets. His failure to refer in any way to the items appellant claims were overlooked lends credence to appellant's assertion that these items, and perhaps others, were overlooked. Since this case is being remanded for the trial judge to reconsider the dissipation aspect, it is appropriate for the trial court to reaccomplish the making of an appropriate monetary award taking into account all of the parties' marital property.

V.

Appellee has raised two issues in his brief for us to consider. Appellee asserts that the trial judge abused his discretion in awarding rehabilitative alimony to appellant. Appellee complains that the trial judge awarded appellant $1,000 per month in rehabilitative alimony in the absence of a showing that she has a need or intention to rehabilitate herself.

Appellee cites Holston v. Holston, 58 Md. App. 308, 473 A.2d 459, cert. denied, 300 Md. 484, 479 A.2d 372 (1984) and Hull v. Hull, 83 Md. App. 218, 574 A.2d 20, cert. denied, 321 Md. 67, 580 A.2d 1077 (1990). We do not believe the cases cited support appellee's position. In Holston, this Court reversed the chancellor who had ordered rehabilitative alimony. The Holston Court ordered that the chancellor grant indefinite alimony. In Hull, the chancellor had denied alimony and we affirmed, saying, "At the time of trial, therefore, the Wife had anticipated assets of $1,100,000. As her counsel conceded during the trial, she was self supporting. . . . We find no fault with Judge Heise's decision that alimony was not required in this case."

In the case at bar, the chancellor had before him a financial statement setting out appellant's monthly net income at $2,075 and monthly living expenses of $6,719. This was sufficient evidence to foreclose a holding on our part that the chancellor abused his discretion by awarding rehabilitative alimony to appellant.

VI.

Appellee's last objection is well taken. He states that the parties acquired EE bonds during their marriage, some titled in joint names and some in appellee's name alone. The trial judge ordered that the bonds be equally divided between the parties. Appellee objects because the court cannot transfer ownership from one party to another. Blake v. Blake, 81 Md. App. 712, 569 A.2d 724 (1990).

Appellee states, and we agree, "the appropriate process would be to determine whether or not the property is marital and pursuant to Md. Code Ann., Fam.Law § 8-203, value the property. Then the court should consider the factors set forth in Md. Code Ann. Fam. Law § 8-205 as to whether or not a monetary award should be made to compensate one or the other party for any inequity resulting from a division of the EE bonds according to title." The question of the bonds should be considered along with the other items of marital property belonging to the parties.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

COSTS TO BE PAID BY APPELLEE.

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JEFFCOAT v. JEFFCOAT
(Nov 30, 1994)