(Photo iStock)
(Photo iStock)

The loan that was really a bonus

CSA affirms award of indefinite alimony

Money that the husband’s employer structured as a “loan” was really a bonus or a retention incentive plan, and therefore a marital asset, the Court of Special Appeals has affirmed.

The transaction was complicated. Essentially, about $1.3 million in cash was deposited in Troy Bryant’s account when he accepted a position as a financial advisor at UBS in 2010. Each year, UBS would forgive one-ninth of the total, so that it would be forgiven entirely if he stayed nine years. Additional money also was deposited to his account while he worked there, using the same structure.

Roxanna Bryant argued that the transactions were structured that way for tax purposes, and that they were essentially an incentive plan or bonus. The Anne Arundel County Circuit Court and Court of Special Appeals agreed.

“Husband claims that the trial judge erred in not crediting his version of the loan, and that the judge ‘made it clear he did not believe a thing that Husband said.’ But this was the trial court’s prerogative,” Judge Douglas R.M. Nazarian wrote for the court.

“Nor does the label UBS and Husband put on the payments compel us to override the circuit court’s findings,” Nazarian added, “particularly when Husband and Wife did not just ‘possess,’ but actually spent the proceeds during the marriage, a reality that characterizing them as loans would ignore.”

The UBS payment money was relevant not only to the amount of marital property, but to the court’s decision to award Roxanna Bryant indefinite alimony.

Troy argued in part that the award was an abuse of discretion, as there was evidence that he had no ability to pay alimony, that Roxanna was self-supporting, and that she had failed to prove an unconscionable disparity in their standards of living if alimony was not awarded. He also argued that the court had improperly determined the couple’s pre-separation standard of living by focusing on a six-month period when they were living lavishly based on that “debt” — the money from UBS.

“The character of Troy’s financial relationship with UBS was in dispute from the beginning, and the court did not abuse its discretion in resolving those disputes as it did,” Nazarian wrote.

Troy’s argument that he was unable to pay alimony suffered greatly from the court’s determination that he had dissipated assets, spending over $2,000 per month on food and drink for the six months leading up to trial, and more than $90,000 in that same time period on undefined “living expenses.”

Troy’s expenditure of $90,000 for undefined “living expenses” over the six months preceding trial was relevant primarily to the question of whether he dissipated marital assets, the court noted.

“But those payments also bore on whether he had an ability to pay alimony, and the fact that he could not account for that much money over a six-month period gave the court more than adequate reason to believe that he could have paid, but chose not to,” Nazarian wrote.

The panel also declined to second-guess the trial judge’s finding that Roxanna Bryant, a former secretary and now a business woman, was self-supporting. The court determined that she could make between $85,000 and $104,000 a year as a salaried employee.

Troy’s expert had put he income potential at about twice that amount, but “the record supports the court’s finding that Wife could not gain more education or training to allow her to enter a more lucrative profession without sacrificing her current profession,” Nazarian wrote.

Finally, Troy claimed the award of indefinite alimony was punitive in nature. The appeals court disagreed, noting all the factors “under FL § 11-106(b) that Husband fails to mention.”

Those included the determination that wife could not become self-supporting; the parties’ “contributions to the well-being of the family” under §11-106(b)(5), and the “circumstances that contributed to the estrangement of the parties” under §11-106(b)(6).

“The parties disagreed about which of them brought about the deterioration of the marriage, but the trial court attributed it largely to Husband’s partying, drinking, and philandering,” Nazarian wrote. “Although Wife conceded that she had used drugs with Husband on occasion, she said that this took place only when he brought drugs into the house… . Wife testified that Husband had ‘another life going on [that she] didn’t know about,’ which included heavy drinking, drug use, and affairs. He was rarely home at night, and she testified that she suspected he was with other women.”

In short, the trial judge took into account numerous factors in concluding that “equity and justice and [Wife’s] financial needs make her a candidate for alimony,” and properly considered and weighed the indefinite alimony factors, the Court of Special Appeals concluded.

Troy T. Bryant v. Roxanna K. Bryant, CSA No. 2096, Sept. Term 2013. Reported. Opinion by Nazarian, J. Filed Oct. 30, 2014. Appeal from Anne Arundel County. Affirmed. RecordFax #14-1030-01, 30 pages.

 

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