Circuit Court for Harford County

Case No. 12-C-17-003373

UNREPORTED*

IN THE APPELLATE COURT

______________________________________

MONIKA NIELSON

______________________________________

Beachley,

______________________________________

* This is an unreported opinion. This opinion may not be cited as precedent within the rule

of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule

1-104(a)(2)(B).

*This is an unreported

The Circuit Court for Harford County granted appellant Monika Nielson (“Wife”)

an absolute divorce from appellee Howard Dean Nielson (“Husband”). Wife noted a

timely appeal from the court’s order as it relates to the award of alimony and child support,

presenting the following questions:

1. Did the court err or abuse its discretion in denying [Wife’s] request for

indefinite alimony?

2. Did the court err or abuse its discretion in setting the period of

For the reasons that follow, we conclude that the trial court did not make sufficient

findings of fact in its award of rehabilitative alimony to Wife. We therefore vacate the

alimony award and remand the matter to the trial court to make further findings in

accordance with this opinion. Because the issues of alimony and child support are

interrelated, we also vacate the child support award. We otherwise affirm the court’s

judgment of absolute divorce.

FACTUAL AND PROCEDURAL BACKGROUND

Husband and Wife married in Denmark in August 1998, while Husband was on

active duty in the United States Army. While residing in Germany, where Husband was

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daughter in 2007. In 2008, Husband and Wife moved to the United States and established

a marital home in Harford County.

On December 22, 2017, Husband filed a complaint for absolute divorce, alleging

that he and Wife had separated without reasonable expectation of reconciliation in June

2015, when he moved into the basement of their home. He set forth counts of constructive

for absolute divorce, alleging counts of adultery, desertion, and one-year voluntary

possession of the family home and family use personal property, child support, and

alimony.

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The divorce trial began on May 10, 2022, and continued on May 11, 2022, and June

27, 2022. At the start of the hearing, Husband and Wife each expressed a desire to be

granted a divorce based on a one-year separation. Wife also sought alimony, child support,

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children. The trial court incorporated the parenting agreement into its final order of

custody, permitting it to be changed only upon the filing of subsequent pleadings and a

this appeal.

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use and possession of the family home (with a request for an equal division of the proceeds

of the sale), and a determination of the child dependency tax credit for the children.

Wife, age 49 at the start of trial, testified that she met Husband, who was on active

military duty, through friends in Germany when she was 23 years old. Husband and Wife

began a romantic relationship, and shortly thereafter they moved in together. They married

couple’s expenses while they lived in Germany.

In approximately 2001, Husband left active duty to serve in the Army Reserves,

then left the Army entirely when he landed a contractor position in Bosnia. By the time

the couple’s children were born in 2006 and 2007, Husband was working for the U.S.

Department of Defense. Wife received three years of paid maternity leave from the

German government after the birth of each child. While the parties were living in

Germany, Wife earned degrees equivalent to a Bachelor of Arts in Office Management and

a Master of Arts in Economics.

In April 2008, Husband informed Wife that he had obtained employment at the

Aberdeen Proving Ground in Maryland and that the family would be moving to the U.S. in

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During the move to the U.S., most of Wife’s belongings were lost in transit, so she

filed an insurance claim, receiving an approximately $50,000 settlement from the

Department of Defense. Wife said Husband deposited the money into his bank account.

Wife also left Germany with an approximately $10,000 “nest egg.” Husband told Wife the

money was to be used as a down payment for a house in Bel Air, which was titled solely

Wife said that Husband pushed her to get a job, but the cost of childcare for two

toddlers was prohibitive. Wife was able to begin work when the younger child started

kindergarten in 2012, procuring a job as a sales associate working 15 to 20 hours per week

at a Marshall’s department store within walking distance of the marital home.

In March of 2016, however, Wife was involved in a car accident that rendered her

unable to return to work. The accident left her with spinal injuries, nerve damage, and

limited use of her hands. She was totally disabled from March 16, 2016, through May 9,

2016, and was instructed not to lift anything weighing more than ten pounds.

Wife was advised to undergo surgery to treat her injuries, but Husband claimed they

could not afford the insurance co-pay. Wife underwent four surgeries related to the injuries

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receiving cortisone and steroid shots in her back, going to physical therapy when she could

afford to, and wearing a back brace.

With the help of a friend, Wife found work as a receptionist at a fitness studio in

of government subsidies, Wife was able to receive unemployment benefits of

the cost on her own until 2021. Once translated, Wife’s educational documents equated

her German degrees to a Bachelor of Arts in Office Management and a Master of Arts in

Economics. Nonetheless, her only job experience in Germany had been secretarial in

nature.

In December 2021, Wife received a $42,000 settlement related to the car accident.

She testified that she is storing those funds in a safe at a friend’s house, and intends to use

the money to pay for her children’s college education.

After applying to many jobs, Wife finally obtained a part-time position as an

administrative assistant in January 2022, earning $972 per month (more than $400 less than

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the amount she received while on unemployment).

to at least 43 jobs in a 25-mile radius from her home in the four months prior to trial, Wife

was still seeking full-time employment and taking classes at night to catch up on modern

technology.

In response to the court’s inquiry, Wife said she did not think she was capable of

Wife advised the court she was seeking indefinite alimony, child support, fifty

percent of the children’s medical costs (both were about to require braces, and the son had

a problem with his leg that required constant medical attention), the ability to claim the

children as dependents on her taxes, and use and possession of the family home for six

months after entry of the final divorce decree.

Husband, then aged 51, testified at the continuation of the trial on May 11, 2022.

He said that after the expiration of Wife’s paid maternity leave in Germany, it was his

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indicated that her monthly income was $1,460.02 and that her monthly expenses were

$7,612, leaving her a deficit of $6,151.98. On August 3, 2021, Wife filed an amended

financial statement, showing monthly income of $946.58 and expenses of $7,362, for a

deficit of $6,415.42.

year.

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expectation that she would work, because his military income alone was not enough to

the move to the U.S. was deposited into an account bearing both their names, to which

Wife had full access. The money, he said, had been spent on upgrades and repairs to the

marital home, replacing the misplaced personal property, and vacations to Ocean City.

mortgage on the house, plus utilities, insurance, and $830 per month in child support.

Husband stated that the parties agreed to these monetary contributions when he moved out

of the marital home, and the parties stipulated that his monthly payments to Wife, including

mortgage, utilities, and insurance, were in the approximate amount of $3,200. Husband

acknowledged, however, that after losing a job, he had not paid the mortgage for five to

ten months in 2019 or 2020. Husband asserted that the house had little or no equity.

Husband agreed that his salary as a cyber security expert had increased dramatically

when he became a contractor for the federal government, permitting him to reach a stable

salary of $105,000 by 2018. A new job in 2021 increased his salary to approximately

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$133,000, and he was on track to make $155,000 in 2022.

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Husband believed Wife was capable of working and becoming self-supporting

because she was an “intelligent woman” who communicates well with others, with

“educational credentials to back her.” He saw no physical impediment to her being fully

employed.

paid. Husband also requested that Wife not receive use and possession of the marital home

for more than three months, as it was his desire to sell the house.

of the year, due to her car accident).

2017 Husband earned $70,793. Wife earned $860 in unemployment.

2018 Husband’s tax return showed income of $1,029. Wife earned no income.

(Husband agreed, however, that the 2018 tax return was not accurate, as he

had not been unemployed that year. Another document admitted into

evidence showed he made $105,877).

2019 Husband earned $105,581. Wife earned no income.

2020 Husband earned $106,631. Wife earned some salary from January through

December.

2021 Husband earned $133,245. Wife earned $1,400 per month unemployment

through June or July.

2022 The parties stipulated that Husband’s salary would be $155,000 because of

overtime payments. Wife earned $972 per month through the time of trial.

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employment, Wife, who has “some degree of education and training,” would be

required to finish the courses she is taking, and then find suitable employment.

the 24-year marriage was “modest at best.”

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court’s opinion “included a detailed and thorough discussion” of the statutory factors, and

found that the wife was capable of earning $20,800 per year, but “the court did not

explicitly compare that level of income with Wife’s reasonable needs,” and did not make

a finding as to whether the wife would be wholly or partly self-supporting at that income

level. Id. at 185–86. Because of the trial court’s failure to make a specific finding of the

about whether the parties’ standards of living will be unconscionably disparate for FL §

11-106(c)(2) indefinite alimony, “[a] trial court must evaluate and compare the parties’

respective post-divorce standards of living” based on their “respective financial means.”

Id. at 189. By awarding the wife “a specific amount of alimony for a specific duration”

without first making “any meaningful prediction about Wife’s future prospects for self-

Here, the trial court did not make a finding as to the needs of the parties, instead

merely stating: “I reviewed their expense statements and have taken that into account.”

The trial court’s failure to make a finding as to Wife’s reasonable needs makes it impossible

for us to determine when and if Wife will be self-supporting or whether the parties’

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60,000 or somewhere in between is not known.” See St. Cyr, 228 Md. App. at 188

(“Nevertheless, by making an inconclusive finding on the issue of when Wife ‘will have

made maximum financial progress,’ the court compounded the earlier difficulty that arose

from the lack of a clear finding regarding the income Wife needed to become self-

determination, it should proceed to determine whether Wife is entitled to indefinite or

rehabilitative alimony. If the court determines that the present record is insufficient to

make the necessary findings, it may request further evidence. See id. at 195. At bottom,

we urge the court to articulate with specificity the basis for any alimony award in

accordance with our caselaw. Until the trial court has the opportunity to address these

issues on remand, “the rehabilitative alimony award that we vacate as a ‘final’ judgment

shall be given the force and effect of a pendente lite award.” Simonds, 165 Md. App. at

613. Accordingly, Husband must continue to pay Wife $2,500 per month as pendente lite

alimony, not as rehabilitative alimony. See K.B. v. D.B., 245 Md. App. 647, 678–79 (2020).

Additionally, we must also vacate the child support award because the issues of alimony

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of them, it must weigh the award of any other.” St. Cyr, 228 Md. App. at 198 (quoting

Turner v. Turner, 147 Md. App. 350, 400 (2002)).

In light of the length of the marriage and the large disparity between the parties’

expected incomes,

a detailed discussion of its reasoning. See Kelly v. Kelly, 153 Md. App. 260, 279 (2003)

marriage as part of their evaluations. It is obvious, then, that the legislature decided that a

long marriage called for more alimony than a short one.”); St. Cyr, 228 Md. App. at 196

(“In cases involving dramatic income disparities after long marriages, this Court has found

an abuse of discretion in a trial court’s failure to award indefinite alimony.”).

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We

the range anticipated by the trial court ($40,000–$60,000), Wife’s income would then be

25.8% to 38.7% of Husband’s. Although there is “no hard and fast rule regarding any

disparity” in income that would warrant an award of indefinite alimony, Tracey, 328 Md.

at 393, we observe that this Court and the Maryland Supreme Court (formerly the Court of

Appeals) has accepted trial courts’ findings of unconscionable disparity in cases involving

a similar level of disparity of incomes. See Tracey, 328 Md. at 393 (28%); Caldwell v.

Caldwell, 103 Md. App. 452, 464, (1995) (43%); Rock v. Rock, 86 Md. App. 598, 613

(1991) (20–30%); Broseus v. Broseus, 82 Md. App. 183, 196–97 (1990) (35%); Bricker v.

Bricker, 78 Md. App. 570, 577 (1989) (35%).

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In its consideration of rehabilitative versus indefinite alimony, the trial court made

the following comment:

(continued)

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reiterate, however, that the focal point under FL § 11-106(c)(2) is not disparity of income,

but whether “the respective standards of living of the parties will be unconscionably

disparate.”

Finally, Wife avers that the trial court erred or abused its discretion in declining to

order Husband to pay her approximately $16,000, as a “retroactive support award”

considered as marital property and monetary award.” The court further found that, in any

event, Wife was not harmed because she received the benefit of living in the house even

when the mortgage was not paid.

indefinite alimony, and we do not fully understand the court’s description of it as an

“advantage” of rehabilitative alimony specifically. On remand, the court should be careful

not to rely on the ability of the parties to request a modification in making its decision. See

Lee v. Lee, 148 Md. App. 432, 452–53 (2002).

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At trial, Wife’s counsel made clear that Wife was not requesting any retroactive

support award other than the amount of unpaid mortgage, and she does not argue on appeal

that the court erred by not ordering retroactive support payments for the entire pre-trial

period. Essentially, her argument is more akin to a request for enforcement of the parties’

oral agreement than a request for retroactive support.

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Pursuant to FL § 12-101(a)(1), “Unless the court finds from the evidence that the

amount of the award will produce an inequitable result, for an initial pleading that requests

child support pendente lite, the court shall award child support for a period from the filing

of the pleading that requests child support.” Wife requested child support pendente lite in

her counterclaim filed April 24, 2019. The trial court was therefore required to award child

agreement, $770 for utilities and insurance and $1,600 for the mortgage, were not

differentiated as either child support or alimony.

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to make mortgage payments was his testimony that, at some point in either 2019 or 2020,

he missed “several” mortgage payments, “probably” more than five, and “maybe” more

than ten, though he did not believe it was more than ten missed payments.

We agree with Husband that the record is insufficient to prove the exact number of

months Husband did not pay the mortgage. Nor does the record establish the number of

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Even if we accept, as Wife argued at trial, that the entire $3,200 Husband agreed

to pay each month was child support, and Husband failed to pay the mortgage for 10

months, Wife would not be entitled to $16,000. Because Husband was paying $1,600 in

child support during the months when he did not pay the mortgage ($830 directly to Wife

and $770 in utilities and insurance), and the ultimate child support award was $1,880, he

was only short a total of $2,800 ($280 per month for 10 months). Furthermore, other than

those months when he did not pay the mortgage, Husband was paying $1,320 per month

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missed mortgage payments after Wife filed her counterclaim in April 2019. Under these

circumstances, we perceive no error in the court’s determination that an award of

retroactive support would be inequitable. As noted by the trial court, other than speculative

economic damage to Wife when the house is eventually sold,

Wife did not explain how

she was harmed by Husband’s failure to pay. Although the couple’s support agreement

CASE REMANDED TO THE CIRCUIT

COURT FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION.

COSTS TO BE PAID BY APPELLEE.

According to Wife’s recent filings in the circuit court, the house is currently in

the process of being foreclosed.