Omayaka v. Omayaka

In Omayaka v. Omayaka, 417 Md. 643, 12 A.3d 96 (2011), the plaintiff ("wife") filed a complaint for divorce on grounds of voluntary separation. 417 Md. at 647. The defendant ("husband") denied that he and his wife had ever agreed to voluntarily live apart for the statu-tory period required for a divorce by voluntary separation. Id. In addition, he further submitted a counterclaim for absolute divorce alleging in "count II" of his coun-ter-complaint that his wife had dissipated the parties' marital assets. Id. Specifically, the husband, in part, asserted: COUNT II DISSIPATION OF MARITAL ASSETS 11. The husband did refinance the marital home. Pursuant to an agreement between the parties, the wife's counsel was to place her share of the pro-ceeds in an escrow account until she had accounted for the transfer of marital funds in the amount of $80,000. By a June 13th 2006 communication, the parties understood that the wife's counsel was to release all but $40,000 to her and would provide an accounting of what, if anything, was taken and how the marital money was spent. To date, no such accounting has been provided. 12. The wife has clearly dissipated the marital funds, these funds were transferred during the pen-dency of litigation and not spent for any family use purposes. Indeed some of these funds were wired to an overseas bank account and/or to persons that the husband is not aware of or was privy to. Id. at 647-48. During trial before the Circuit Court for Prince George's County, the defendant called his wife as his first witness regarding his counterclaim for absolute divorce. Id. at 648. The wife's testimony included two concessions: "that (1) while married to her husband, she opened two bank accounts in her name only, and (2) from March of 2005 through December of that year, she made 'over the counter' withdrawals of approximately $80,000 from those accounts." Id. at 648-49. The wife, however, denied the allegations of dissipation, attesting that when she and the defendant lived together "each one of them had their own accounts. So the way she spent her money, she spent her money, and he just spent his own money." Id. at 649. She further explained that "the only joint account that they had was where they used to pay their bills." Id. At the conclusion of the trial, the circuit court granted the wife an absolute divorce and denied the husband's counterclaim for dissipation, noting that he had failed to meet his burdens of production and persuasion. Id. 649-51. The husband protested the court's conclusion, arguing, "Your Honor, . . . for dissipation -- You're putting all the burden on us." Id. at 650. The circuit court responded, indicating: "I think I just explained that I did not believe that you had made a case. That's not a "prima facie" case. We are at the conclusion of all of the evidence. So it's not a question of a "prima facie" case. The question is, did he meet the burden? And I suggested that he didn't meet the threshold question. And then I went on to say that even accepting that he did meet it, then the next question is, does she explain adequately where the funds went? And I found that she had." Id. at 650-51. Thereafter, the following colloquy ensued: The husband's counsel: But she didn't put on any evidence, Your Honor, about how the money was spent. THE COURT: She did. She said that she spent it on her credit cards, her $5,000 loan, her clothing, food, mortgage, sent to the other two children; she went through the whole litany of that. The husband's counsel: . . . There's no evidence in the record that she spent the money for what she said. THE COURT: There is evidence. I heard her say so under oath from the stand. The husband's counsel: There's no corroborating evidence, Your Honor. THE COURT: I don't recall in the Code where the testimony needs to be corroborated. If you can give me a case that requires that, I'll be happy to look at it. Id. at 651. The husband consequently noted an appeal to this Court. Id. at 646. Before argument, however, the Court of Appeals issued a writ of certiorari on its own initiative to ad-dress the parties' contentions regarding a dissipation arguments' burden of persuasion and produc-tion. Id. After reviewing the parties' contentions on appeal, the Court of Appeals began its analysis observing that "if there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous," because the circuit court's judgment regarding dissipation is solely a factual one. Id. at 653 (quoting Fuge v. Fuge, 146 Md. App. 142, 180, 806 A.2d 716 (2002)). The Court further reasoned that when the circuit court is called to assess the credibility of witnesses, the court is "entitled to accept -- or reject -- all, part, or none of the testimony of any witness, whether that testi-mony was or was not contradicted or corroborated by any other evidence." Id. at 659. Specifically, the Court noted: . . . The circuit court expressly found that "here has been evidence presented that the wife spent sub-stantial sums of money during the marriage." If that evidence had been presented through the testi-mony of other witnesses, or if the husband had not questioned the wife about how she spent the money, there would be merit in the husband's argument that he "made out a prima facie case of dis-sipation." The husband, however, elected to question the wife about how she spent the funds that she withdrew from her bank accounts in 2005, thereby presenting the circuit court with both (1) evidence of the withdrawals, and (2) the wife's explanation of what she did with the money. While the husband was certainly entitled to argue that the wife's explanation was unworthy of belief, the circuitcourt was not required to agree with that argument. Id. at 657. Therefore, the Court concluded that the circuit court's finding was not clearly erroneous because it was entitled to find that the wife had adequately explained where the withdrawn funds from her bank accounts had gone. Id. at 659. In sum, in Omayaka v. Omayaka, the plaintiff filed a complaint for divorce on grounds of voluntary separation. Id. at 647. In response, the defendant ("husband") denied that he and his wife had ever resolved to voluntarily live apart for the statutory period required for a divorce by voluntary separation and further submitted a counterclaim for absolute divorce alleging in "count II" of his counter-complaint that his wife had dissipated the parties' marital assets. Id. 12. The wife has clearly dissipated the marital funds, these funds were transferred during the pen-dency of litigation and not spent for any family use purposes. Indeed some of these funds were wired to an overseas bank account and/or to persons that the husband is not aware of or was privy to. (Id. at 647-48.) Thereafter and during the trial before the Circuit Court for Prince George's County, the defendant called his wife as his first witness on his counterclaim of divorce. Id. at 648. The wife's testimony included two concessions: "that (1) while married to her husband, she opened two bank accounts in her name only, and (2) from March of 2005 through December of that year, she made 'over the counter' withdrawals of approximately $80,000 from those accounts." Id 648-49. As a consequence, the husband noted an appeal to this Court. Id. at 646. The Court of Appeals, however, issued a writ of certiorari on its own initiative to address the parties' conten-tions regarding a dissipation arguments' burden of persuasion and production. Id.