Abdullahi v. Zanini

Graeff, J. Zeynab Abdullahi ("Wife"), appellant, challenges the September 4, 2017, Order of the Circuit Court for Montgomery County, and the November 29, 2017, Amended Order, which granted her an absolute divorce from Gianni Zanini ("Husband"), appellee, and divided marital assets. Wife presents multiple questions for this Court's review, 1 which we have revised as follows: 1. Did the circuit court abuse its discretion in granting the monetary award and dividing the marital property? 2. Did the circuit court abuse its discretion in declining to award wife attorneys' fees? 3.

Did the circuit court err in failing to grant an absolute divorce on the grounds of adultery? For the reasons set forth below, we shall affirm, in part, and vacate, in part, the judgment of the circuit court and remand for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND I. Background and Marriage Wife was born in Somalia and moved to the United States in August 1977. She met Husband in 1986 while they were attending school in California. 2 They were married in a religious ceremony in California in 1986, and again in a civil ceremony in 1987 in Virginia.

During the marriage, Wife and Husband had two children: Ebyan and Amanle, both of whom are now over 18 years old. On January 5, 1987, Husband received a job with the World Bank, and he and Wife moved to the Washington, D.C. area. Wife initially worked for Bechtel Eastern Power, but she left her job to pursue a master's degree in energy systems at the University of Maryland. In 1995, Wife began working for the United States Nuclear Regulatory Commission.

In 1998, the parties purchased a home in Maryland. Husband's work at the World Bank required that he travel frequently. Husband testified that, when he was home, he would participate in running the household, take the children to their activities, and go to school meetings. Wife testified that when Ebyan was young, Husband was involved in taking her to various activities, and he cooked for the family.

At some point, though, Husband stopped helping to maintain the home. In December 2010, Husband retired from his job at the World Bank. He testified that he retired because his department at the World Bank was phased out. He received a separation package and was permitted to work as a consultant.

In early 2011, Husband approached Wife to discuss moving to Italy for a year. Part of his separation package with the World Bank "was tied" to him going to Italy. From summer 2011 to summer 2012, the parties and their children resided in Italy. 3 Wife returned to work on August 1, 2012, and Husband took two additional trips in 2012. In 2013, Husband took motorcycle trips across the United States, and he took trips to Italy and Southeast Asia.

Prior to Husband leaving for his trips in July 2013, Wife requested that they attend marriage counseling together. Husband attended two sessions, and he then returned to his travels. After Husband returned from his travels at the end of October 2013, Wife found Viagra, Cialis, and other "performance enhancers" in Husband's luggage. At the end of 2013, Wife was told by her doctors that she needed surgery.

Husband was traveling at the beginning of 2014 when Wife was initially scheduled to have the surgery, so she postponed it until April 2014. Wife asserted that Husband was present after her surgery, but "he did not do anything" for her. In June 2014, Wife requested Husband to attend marriage mediation. He refused.

Husband resumed traveling in June 2014 and returned in September 2014. 4 When wife checked their laptop upon Husband's return, she found links to dating and escort sites, emails to "sex sites," and pictures.

II

Commencement of Divorce Action and Subsequent Filings In September 2014, Wife decided to pursue a divorce, and she presented Husband with a settlement agreement. On November 25, 2014, following unsuccessful settlement negotiations, Wife filed a Complaint For Absolute Divorce, Child Support & Related Relief, citing adultery as the ground for divorce, alleging dissipation of marital funds by Husband, and requesting a division of marital assets and attorneys' fees. On December 29, 2014, Husband filed his Answer and Counterclaim, in which he alleged desertion as grounds for divorce and admitted to committing adultery after June 14, 2014. In April 2015, Wife and Amanle left the marital home that was purchased in 1998 and moved to an apartment.

Each party amended their pleadings more than once. On June 3, 2015, Wife filed a Second Amended Complaint for Absolute Divorce, Alimony/Spousal Support, Custody, Child Support & Related Relief. Wife made requests for custody and child support, as well as requests for a monetary award, a portion of Husband's pension, and attorneys' fees. On June 29, 2015, the circuit court held a merits trial regarding custody of the minor child, Amanle. 5 On August 18, 2015, the court issued a Custody Order, based on an agreement by the parties, awarding Wife primary physical custody and joint legal custody, with Wife having tie-breaking authority.

On July 7, 2015, a magistrate conducted a hearing as to child support issues. Child support was awarded, but the record indicates that it ended when Amanle reached the age of 18 and completed high school. 6 On November 14, 2016, Husband filed his Third Amended Counter-Complaint for Absolute Divorce and for Other Relief. Husband requested, among other things, that he "be granted an absolute divorce from [Wife] on the ground of a separation exceeding one year in duration," and that he "be awarded attorney's fees and legal costs incurred by him in connection with this matter." III. Trial Trial was scheduled to begin April 4, 2016, but counsel for Husband moved to strike his appearance and requested that the trial be postponed so that Husband could obtain new counsel.

The court postponed the trial to June 28, 2016. On June 28, 2016, the docket entries indicate that the court again postponed the trial because no judge was available. The court postponed trial to December 12, 2016. On December 12, 2016, trial began.

Although it was scheduled as a three-day trial, it continued for seven days, ending June 1, 2017. The court bifurcated the issue of attorneys' fees and the merits, hearing argument on attorneys' fees first. Counsel for Wife argued that Husband was "both a cheat and a liar," and his lies forced wife to "expend significant amounts of time and attorney fees actually getting to the truth." He stated that any fees incurred after April 4, 2016, should be borne by Husband, who caused a postponement of the merits trial, noting that the judge who granted the continuance advised that Husband "would be chargeable for some of the additional expenses" incurred. Addressing the merits of the suit, counsel for Wife stated, in pertinent part: As Your Honor knows, the World Bank pension cannot be divided.

The World Bank doesn't honor state orders, but they will divide his pension by way of a spousal support order, and we will provide the Court with that form, and we would ask the Court to award [Wife] one-half of the World Bank pension. We're also asking the Court [to] transfer the marital home to [Wife], and the reason for that simply is because as a result of this litigation, [Wife] has spent approximately $350,000 in counsel fees, the vast majority of which were all precipitated by [Husband's] behavior. [ 7 ] Counsel also requested that the court reimburse Wife for all marital funds that Husband used "to pursue his girlfriends, to pursue his vacations, to pursue his motorcycles and various trips, et cetera," and he asked that the court transfer ownership of a Nissan Murano to Wife. Counsel requested that the court order that the contents of the former marital home be sold and the proceeds allocated between the parties and that the court award Wife attorneys' fees. Husband's counsel stated that Wife's opening statement was more about the attorneys' fees than the facts of the case.

He stated that, although the amount of attorneys' fees was unfortunate, "[w]hen you choose [to spend] money to have a PI to get adultery on someone who has admitted it, these are your choices." On the merits, counsel noted that everyone agreed that there had been a one-year separation. He stated that there was no proof of adultery "inside of Maryland." Counsel discussed the parties' marital and nonmarital property. He noted that the parties had received loans from Husband's family in the amount of $350,000, and Husband cashed in a third of his pension to pay off the mortgage on the marital home. Regarding Wife's claims that Husband dissipated marital assets, counsel for Husband stated: You're seeing dissipation claims made on credit cards on loans.

They're not even assets, and then what you're looking at when you're looking at these accountings, I mean you're looking at ATM charges, like $2. The rules about dissipation or the definition of it is the wasting of marital property or the devaluing of bank accounts to exclude them from division in a divorce. I don't think you're going to find any of that for either one of these parties. Counsel stated that Husband's payments to other women did not exceed $10,000, and if the court thought it was dissipation, he would pay it back.

Counsel stated that the parties' main assets were Husband's World Bank pension, Wife's FERS and a TSP pension, the house, which was "debt free and is ready to be sold," and some vehicles. Counsel stated that it was Husband's position that "each of these parties is stuck with their own attorney's fees." A. Wife's Testimony Wife testified that she and Husband had not cohabitated under the same roof since April 2015 and there was no hope of reconciliation. Wife's annual income from her job at the Nuclear Regulatory Commission was $153,702, and her official position was Senior Staff Engineer. 8 She wanted the court to award her the marital home, which she believed to be worth $750,000, 9 and transfer ownership of the Nissan Murano, titled in Husband's name, to her. Other than those two items, she requested that the court grant her a monetary award in "an amount equalizing the difference between the value of the assets in [her] husband's name and the value of the assets in [her] name." She asked that the court award her "one half of the value of the World Bank pension." Wife testified that Husband's parents had given them $237,000 to help them buy the marital home, and they had given them $100,000 on another occasion.

When Husband retired, he "cashed out ... approximately a third of his pension," amounting to approximately $800,000, which was used to pay off the mortgage on the marital home and other family debts. Husband had two motorcycles that Wife contended constituted marital property because Husband purchased them with marital funds. Wife estimated that the value of these motorcycles was $8,565 and $7,215, and she used sources such as Craigslist and Kelly Blue Book to arrive at those values. The parties owned several properties; Wife's properties were in Somalia and Husband's were in Italy.

Wife stated, in the Joint Statement of Parties Concerning Marital and Non-Marital Property (the "Joint Statement"), 10 that the Somalia properties were worth $0. At trial, she explained that the properties had no value because Somalia was a "war-torn country." On cross-examination, however, Wife stated: The problem is not that it's worthless, it is, the problem is, this is Somalia where things are being blown up and my parents died without their property, and in my belief, maybe we will die before we get hold and go back there. So, that is one aspect of it. The second aspect of it is the fact that I am one, the way, my father did not leave or my mother or so, did not leave a will, so my share would go by the Islamic law, heritage law in which case I'll get one sixteenth of that price ....

Wife valued one of the Italy properties at $110,000, whereas Husband valued it at $80,000, and she valued the other Italy property at $375,200, whereas Husband valued it at $202,303. When asked how she arrived at the values for the Italy properties, Wife stated: I looked at the properties' listing in the area as well as knowledge that when I was there, there were properties that were being sold there and the location as we say in (unintelligible) real estate, it's location, location, location. So combining all that thought plus a, what was a similar apartment listed there is what I used to come up with the value. Wife also testified regarding two accounts, an Allianz Bank Investment Account, and an Allianz Bank Checking Account.

Wife believed that these two accounts, titled in Husband's name, constituted marital property because she and counsel determined during discovery that Husband was wiring funds from a marital account to the Allianz account. Wife had two types of Thrift Savings Plan ("TSP") accounts. She previously had withdrawn funds from her TSP to pay attorneys' fees. Most of the funds taken from the TSP were used to cover attorneys' fees, and some were used for other expenses, such as tuition for her son. 11 Wife next discussed her allegation that Husband dissipated $244,529.41 of marital funds.

As discussed in more detail, infra , the circuit court admitted some, but not all, of Wife's proposed exhibits to show how she arrived at this figure. B. Husband's Testimony Husband testified that, when he and Wife acquired the marital home, they paid a 20% down payment to purchase the home, and they received these funds from his parents. 12 Husband asserted that the funds received from his parents constituted a loan, not a gift, but he had not repaid his parents. Husband continued to live in the marital home after Wife moved out in April 2015. He was paying the expenses on the home with no contribution from Wife.

As of the time of trial, they were in arrears with respect to the payment of property taxes on the marital home for 2016. He had asked Wife to contribute to expenses, including property taxes, but she "did not reply to [his] request." Husband did not have the necessary funds, so he planned to sell one of the marital vehicles to pay the taxes. Husband opined that the value of the marital home was $1,070,650. He believed that Wife's opinion that the marital home had depreciated in value by approximately $250,000 was inaccurate.

The parties owned two cars, a 2010 Nissan Murano and a 2013 Hyundai Elantra. Both vehicles were titled in Husband's name, and the parties agreed that the vehicles were marital property. Husband wanted to sell the Nissan Murano so that he could pay the marital home property tax arrearage. Husband and Wife initially agreed that the Nissan Murano was worth $17,000.

At trial, however, Husband stated that he thought the Nissan's value had depreciated because the car had accrued more mileage since they filed the Joint Statement. Husband also owned several motorcycles. Husband testified that he had two sources of income, his World Bank pension and the income he received from consulting for the World Bank. Upon retirement, he took one-third of his pension, approximately $800,000, as a lump sum payment, with two thirds of the pension remaining.

He used this one-third payment to pay off the mortgages that the parties had on the marital home, to pay off their credit card debt, and "to put some money towards two college savings accounts" for their son. The gross monthly amount of the pension Husband received was $11,102.66, but there were deductions each month for family medical insurance and life insurance. His net monthly pension amounted to $10,528.58. Husband also received income from consulting for the World Bank.

In 2016, he earned approximately $35,000, and in the four months prior to trial, he earned $12,100. His consulting for the World Bank was "variable and decreasing" in frequency. Husband also discussed various accounts listed on the Joint Statement. He believed that the Allianz Bank Investment Account was nonmarital because the source of funds for the account, which was solely in his name, was the proceeds of the sale of his father's ancestral home.

The Stocks account listed in the Joint Statement used to be titled in both his and his father's name, but after May 2014, his name was removed from the Stocks account. With respect to Wife's adultery and dissipation claims, Husband estimated that he spent $6,746 traveling with other women. He spent $1,555 on wire transfers to other women, and $775.39 in dating website fees. He agreed that a portion of the $1,555, i.e., transfers from Western Union, constituted dissipation, but he alleged that transfers from his Allianz account were transfers of nonmarital funds.

Husband admitted that he first had sexual relations with other women beginning in October 2012. C. Marc Pushkin Testimony Marc Pushkin, an expert in the area of pension retirement assets, testified that he was asked to look at the parties' pensions and the social security benefits that they had earned and could expect to receive in the future. He could not precisely ascertain the social security benefits that Wife would receive because "she may have continued employment, she may have more earnings," and "until the person actually retires, [one cannot] know what [her] final work history will be." Mr. Pushkin explained that Husband would not receive social security benefits attributable to his work at the World Bank. Husband could, however, receive social security benefits as a spouse "if he met the requirements for spousal benefits." Those requirements, which Husband satisfied, included a marriage of 10 years, being age 62 years or older, and being entitled to a benefit less than his ex-spouse's benefit.

Mr. Pushkin testified that he could not specify precisely the benefits Husband would receive as a result of Wife's entitlement, but it generally would be 50% of what her benefit would be at her normal retirement age, although it would be adjusted if Husband took it earlier than Wife's normal retirement age. 13 Unlike with a pension, Wife would be entitled to the full measure of her social security benefits, despite Husband's ability to receive 50 percent of the amount of her benefits. That is, Wife's share would not be diminished by any benefit that Husband would receive. And Husband's election to receive Wife's social security benefits was independent of Wife's election to receive her own benefits. Mr. Pushkin also testified that various provisions that might reduce the social security benefits that Husband would receive, such as a "government pension offset" and "windfall elimination provisions," would not apply here. 14 Mr. Pushkin next discussed the World Bank's policy on dividing pensions.

He stated: [T]he World Bank is not subject to the normal rules of QDROs [ 15 ] because it's not under the - the normal QDRO rules under U.S. law do not apply to the World Bank so the World Bank has their own set of rules and they have what's called a spousal support order. So you have to follow the spousal support order if you want to effectuate what we would refer to as a QDRO. The World Bank required the division of retirement benefits be granted as spousal support. D. Douglas White Testimony Douglas White, an expert in Certified Public Accounting, testified that he was retained to help Wife prepare her 2015 tax returns and to compute her 2015 federal and Maryland state tax liabilities resulting from her withdrawal of $200,000 from her TSP retirement account in 2015.

Of the $200,000 that was withdrawn from her TSP, $186,686 was taxable, and the total tax and penalty due to her withdrawal from the TSP alone was $97,797. As of the date of trial, Wife still owed taxes for the 2015 tax year. She was on an installment plan with the IRS, paying $655 per month on the remaining balance owed. E. Paul Reinstein Testimony Paul Reinstein, a family law attorney, testified regarding World Bank pension orders.

He stated that the World Bank does honor pension orders, but he explained: World Bank is non-ERISA. It is not subject to the federal ERISA legislation but they have historically honored domestic relations orders. Not Q[D]ROs but domestic relations orders as long as they designate the payment as spousal support. That's just a unique feature of a World Bank pension plan in terms of what they will recognize.

As long as it is designated as spousal support or alimony they will recognize the order. That's just unique to the World Bank. Mr. Reinstein testified that the World Bank would honor "either a percentage designation or a dollar amount designation." With respect to the $425,000 that Wife had accrued in attorneys' fees, Mr. Reinstein opined that this amount was reasonable given the litigation regarding World Bank pension issues, as well as custody and child support. Additionally, the fees and time spent pursuing a deposition of Husband's expert witness, Timothy Voit, who in the end did not testify, were appropriate.

And, due to Husband's equivocation as to when his acts of adultery first began, it was appropriate to expend time and fees to determine the truth regarding the beginning of his adulterous acts. F. Hadrian Hatfield Testimony Hadrian Hatfield, an expert in family law, testified on behalf of Husband. Mr. Hatfield explained that the World Bank pension scheme for pre-1998 employees does not provide survivor benefits to an ex-spouse. The World Bank will "not accept an order that purports to divide a pension." Mr. Hatfield explained that, in Maryland, the court can either reduce a pension to present value and account for that amount in a monetary award or a set off of assets or "award an if, as, and when type of payment from the pension or even a division of pension assets." 16 He stated that an "if, as and when" division of the pension assets was not available with a World Bank pension, explaining that, similar to a pension from a foreign government, the court did not "have the power to tell those folks what to do with their pension benefits." Mr. Hatfield then opined that there were four options for the World Bank pension.

First, the court could "issue your standard type of pension division order," which was not acceptable because the World Bank would refuse to honor it, and the parties would be back in court. Second, the court could issue a monetary award, although there would have to "be enough marital property available to do that," and the court would have to value the different properties. In that regard, Mr. Hatfield stated: [W]e would typically have an expert look at the World Bank pension benefits, look at the mortality tables, and in circumstances with international pensions, you have to look at the currency fluctuation risk and render an opinion as to the present value of those benefits. * * * For a monetary award, it's my opinion that a Court would have to have a present value for the pension. And I think it's very difficult to issue a monetary award and be sustained on appeal if you haven't valued it.

The third option, in Mr. Hatfield's opinion, was a set off, where the court could give a similarly valued property to Wife without any division of the World Bank pension. He stated: Now, the issues that you run into are of course still valuation - you want to make sure that the setoff is as close as possible to the true value. [ 17 ] You've got to look at tax consequences. If you're setting off against pension interests, presumably you want the interest to be as close as possible to the same, so is it in pay status or not are considerations that the Court would have. And in my opinion, if it's possible, that's probably the cleanest way to do things.

And finally, the fourth option was to order spousal support as a substitute for the inability to divide the pension. Mr. Hatfield thought that setoff was the best option, followed by a monetary award, an alimony order, and an order purporting to divide a pension. Mr. Hatfield agreed that, if the court ordered Husband in a spousal support order to pay Wife 50 percent of his pension on a monthly basis as he receives it, that would be close to an "as, if, and when" award. He stated, however, that there would be two issues with this option: [T]he continuing modification ability of it and determination of alimony is different from the division of assets.

And then there's the whole control issue .... * * * ... [Wife] would not have control over the asset in the same fashion. That is, it wouldn't be her ownership interest as if it were a non-World Bank or for the jurisdiction pension that is if it were a U.S. based pension, she would become the owner of her interest. G. Closing Arguments In closing, Wife's counsel requested that Wife be awarded a divorce based on the grounds of adultery, and that the court sign a spousal support order and award Wife 50% of Husband's World Bank pension, including her share of any cost of living adjustments ("COLAs"). Additionally, Wife asked that the court award her the marital home and the Nissan Murano, that the court "make a monetary award based on the ownership of the interest set forth in the 9-207 [Joint] [S]tatement," and that the court restore all dissipated funds, which she asserted was $77,029, "by adding them to [Husband's] column of marital assets." Counsel also requested that the court award Wife attorneys' fees and expert witness fees, stating that Husband made the case "more difficult and time consuming than it needed to be," and "[a]s a result, it cost far more than it should have." Counsel cited to difficulties, including Husband's initial refusal to pay pendente lite child support, which led to a hearing ordering him to pay, Husband's initial fight over custody, until he reached an agreement with Wife, and Husband's refusal to provide Mr. Voit's expert report, though Husband ultimately did not call him as a witness.

Counsel for Husband requested that the court award Husband a divorce based on the no-fault ground of a one-year separation. He asserted that Husband's initial lie about a discreet period of time prior to 2014 when he was committing adultery did not justify Wife's exorbitant legal fees. He argued that Wife had failed to prove her initial claim that Husband dissipated over $200,000 of marital funds. As to Husband's World Bank pension, Husband's position was that both his and Wife's pensions "should just be left alone," with each party keeping their respective pensions.

Counsel noted that "the pension was never valued," and as a result, many of the "avenues that th[e] Court would have to resolve this issue of a World Bank pension" were unavailable. With respect to the marital home and the parties' personal property, counsel asserted that they should be sold and the proceeds divided between the parties. Counsel argued that Wife was not entitled to an award of attorneys' fees. Counsel stated that "these people should go their separate ways with what they have," and any monetary award granted should be "small." IV.

Circuit Court Ruling and Amended Order On September 13, 2017, the circuit court issued a Judgment of Absolute Divorce pursuant to one-year separation. The court ordered that Husband transfer title and ownership of the Nissan Murano to Wife for the fair market value of $17,000, and the marital home be sold. It awarded Wife a monetary award of $62,313.45 ("$22,000.00 for [Husband's] dissipation of marital funds and $40,313.45 for [Wife's] portion of the motorcycles that [were] marital property"), and it awarded Wife "spousal support to represent [Wife's] distributive share of [Husband's] World Bank pension in the amount of $2,000 per month with the cost of living increase to be adjusted pro rata in addition to the monthly amount." On September 25, 2017, Wife filed a motion to alter or amend the court's judgment. She asserted: The Order and Judgment 1) contained certain mathematical and other errors, which when corrected would result in a different monetary award to [Wife]; 2) which provided for more than one monetary award, may be rectified by combining the awards set forth in the Order and Judgment into one award; 3) provided for an inequitable distribution of retirement benefits; 4) ordered the former marital home sold, inappropriately ordered [Wife] to pay a portion of [Husband's] living expenses in the home which he occupies; 5) inaccurately accounted for the values of the parties' non-marital property; 6) failed to include all of the funds dissipated by [Husband] in its monetary awards; 7) declined to grant [Wife] attorney's fees despite evidence of substantial fees incurred due to [Husband's] untruths, misrepresentations and other actions throughout this litigation; and 8) failed to address [Wife's] request for expert witness fees and costs, including expenses necessitated by [Husband's] untimely production of an "expert report." Wife requested: (1) a monetary award of at least $98,653; (2) Husband's World Bank pension be equally divided; (3) Wife's retirement benefits be divided on an "if, as, and when" basis; (4) Husband be responsible for taxes and costs of marital home until sold; and (5) Husband be ordered to pay attorneys' and expert fees.

On September 25, 2017, Husband also filed a motion to alter or amend the court's judgment. He raised several errors, including: (1) the court included in Wife's monetary award $40,313.45 for the value of Husband's motorcycle collection, but that was 100% of the value, and half the value was $20,156.73; (2) the court ordered that Husband transfer title of the Nissan Murano to Wife, but the court lacked authority to transfer title to that asset; (3) the court erred in determining that Husband's Allianz account was marital; and (4) the court erred in failing to award Husband attorneys' fees. On November 29, 2017, the circuit court issued an Amended Order. The amended order stated that "any and all orders set forth in this Court's Opinion ... and Judgment of Absolute Divorce ... not specifically revised in th[e] Amended Order ... remain in effect." It granted, in part, and denied, in part, both Wife's and Husband's motions to alter or amend, and provided, in pertinent part: ORDERED, that [Wife's] monetary award shall be revised to reflect that [Wife's] portion of motorcycles that are marital property is $20,156.73 [as opposed to $40,313.45]; and it is further, ORDERED, that [Husband] shall retain title and ownership of the 2010 Nissan Murano, and that its full fair market value of $17,000 shall be added to [Wife's] monetary award, in order to secure replacement transportation for [Wife]; and it is further, ORDERED, that [Wife] shall be awarded the monetary award of $59,156.73 from [Husband] ($22,000.00 for [Husband's] dissipation of marital funds, $20,156.73 for [Wife's] portion of motorcycles that are marital property, and $17,000.00 fair market value of 2010 Nissan Murano to secure replacement transportation), and this amount shall be reduced to judgment in favor of [Wife], if it is not paid to [Wife] within 90 days of the entry of this Order[.] This appeal followed. 18 DISCUSSION Wife raises several contentions of error.

Before addressing these contentions, however, we consider Husband's motion to dismiss. I. Motion to Dismiss Husband contends that Wife's appeal should be dismissed because, after she noted her appeal to this Court, she accepted title to the Nissan Murano and a $22,000 payment toward the monetary award, and "her acceptance of, and thus acquiescence of, the monetary award" renders her appeal moot. As explained below, we disagree. To be sure, the general rule is that a party may not acquiesce in a judgment and accept its benefits while attacking the judgment on appeal.

See Dietz v. Dietz , 351 Md. 683 , 689, 720 A.2d 298 (1998) ; Turner v. Turner , 147 Md. App. 350 , 809 A.2d 18 (2002) ; Chimes v. Michael , 131 Md. App. 271 , 748 A.2d 1065 , cert. denied , 359 Md. 334 , 753 A.2d 1031 (2000). In Chimes , the case upon which Husband relies, we stated: It is well settled in Maryland, and the law generally is to the effect, that, if a party, knowing the facts, voluntarily accepts the benefits accruing to him under a judgment, order, or decree, such acceptance operates as a waiver of any errors in the judgment, order, or decree and estops that party from maintaining an appeal therefrom. Id. at 280 , 748 A.2d 1065 (quoting Fry v. Coyote Portfolio, LLC, 128 Md. App. 607 , 616, 739 A.2d 914 (1999) ). The Court of Appeals similarly has stated that " '[t]he right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal.' " Dietz , 351 Md. at 689 , 720 A.2d 298 (quoting Rocks v. Brosius , 241 Md. 612 , 630, 217 A.2d 531 (1966) ).

There are, however, exceptions to this general rule. In Lewis v. Lewis , 219 Md. 313 , 317, 149 A.2d 403 (1959), the Court of Appeals stated: "[I]f applicable at all in a divorce case, the [acquiescence doctrine] cannot be raised where the benefits accruing to the wife, by reason of the award, provide necessary support until the final adjudication of the case." And in Dietz , the Court noted that an exception to the general rule exists where the judgment was " 'for less than the amount or short of the right claimed.' " Dietz , 351 Md. at 688 , 720 A.2d 298 (quoting Baer v. Robbins , 117 Md. 213 , 225, 83 A. 341 (1912) ). In Dietz , 351 Md. at 696 -97 , 720 A.2d 298 , the Court held that dismissal was improper, even though Mrs. Dietz deposited a check for a portion of the marital award. The Court stated that, because Mr. Dietz had not filed a cross-appeal objecting to the monetary award, and Mrs. Dietz was seeking an increase in the monetary award, there was nothing inconsistent about her acceptance of the award that was made and her appeal seeking an increase in that award.

Id. Accordingly, there was no acquiescence in the judgment. Id. at 697 , 720 A.2d 298 . Accord Smith v. Smith , 702 S.W.2d. 505 , 507 (Mo.

Ct. App. 1985) (motion to dismiss wife's appeal denied because she was paid only a fraction of the judgment awarded, husband did not appeal, and the issue on appeal was whether awards to wife would be increased). The exception discussed in Dietz weighs against Husband's motion to dismiss Wife's appeal. Here, as in Dietz , Husband did not pursue a challenge to the monetary award, and Wife contends on appeal that she is entitled to a larger monetary award, which is not inconsistent with her acceptance of a portion of the award. 19 In this case, however, there is an even stronger reason not to dismiss the appeal. In Wife's opposition to the motion to dismiss, she attached a document signed by counsel for Husband stating that Husband would not "raise the defense of acquiescence or the holding in Chimes v. Michaels [Michael] for any reason in [Wife's] appeal." 20 Husband has not disputed the authenticity of this document.

Under these circumstances, where Husband told Wife that he would not raise the acquiescence rule, Husband has waived any right to argue that the acquiescence rule requires dismissal of this appeal. See Skokos v. Skokos , 332 Ark. 520 , 968 S.W.2d 26 , 30 (1998) (appellee may " 'waive' his right to declare a waiver of appeal on the part of an appellant," by promising that "acceptance of payment under the judgment will not prejudice her right to appeal"). Accordingly, we shall deny Husband's motion to dismiss the appeal.

II

Property Disposition Turning to Wife's contentions on the merits, Wife's first argument is that the circuit court "abused its discretion in its monetary award and erred in dividing marital property and retirement" benefits. She raises multiple grounds of error in this regard. Before addressing each of these specific contentions, we set forth the general law regarding monetary awards. A. Monetary Awards The three-step process for determining whether to grant a monetary award is well settled.

First, for each disputed item of property, the judge must determine whether it is marital or non-marital. Flanagan v. Flanagan , 181 Md. App. 492 , 519, 956 A.2d 829 (2008) ; Md. Code (2012 Repl. Vol.), § 8-203 of the Family Law Article ("FL"). Marital property refers to "property, however titled, acquired by 1 or both parties during the marriage." FL § 8-201(e)(1).

The statute further provides: (2) "Marital property" includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement. (3) Except as provided in paragraph (2) of this subsection, "marital property" does not include property: (i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or (iv) directly traceable to any of these sources. FL § 8-201(e). Second, the court must determine the value of all marital property.

Flanagan , 181 Md. App. at 519 , 956 A.2d 829 ; FL § 8-204. Third, the court "must decide if the division of marital property according to title would be unfair," and if so, it "may make a monetary award to rectify any inequity 'created by the way in which property acquired during marriage happened to be titled.' " Flanagan , 181 Md. App. at 519 -20 , 956 A.2d 829 (quoting Doser v. Doser , 106 Md. App. 329 , 349, 664 A.2d 453 (1995) ). See FL § 8-205(a). In ordering a monetary award, FL § 8-205(b) sets forth the factors that the court must consider: (1) the contributions, monetary and nonmonetary, of each party to the well-being of the family; (2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both; (9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety; (10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and (11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.

"The clear intent of [the monetary award] is to counterbalance any unfairness that may result from the actual distribution of property acquired during the marriage, strictly in accordance with its title." Brewer v. Brewer , 156 Md. App. 77 , 110, 846 A.2d 1 (quoting Ward v. Ward , 52 Md. App. 336 , 339, 449 A.2d 443 (1982) ), cert. denied , 381 Md. 677 , 851 A.2d 596 (2004). Accord Long v. Long , 129 Md. App. 554 , 578, 743 A.2d 281 (2000). "[T]he decision whether to grant a monetary award is generally within the sound discretion of the trial court." Collins v. Collins , 144 Md. App. 395 , 409, 798 A.2d 1155 (2002) (quoting Alston v. Alston, 331 Md. 496 , 504, 629 A.2d 70 (1993) ). Here, after addressing the factors above, including the parties' considerable property interests, both marital and non-marital, the court stated as follows: [A] monetary award shall be made in favor of [Wife] in the amount of $22,000 due to [Husband's] dissipation of $44,000 of marital funds and this amount shall be reduced to judgment against [Husband] and in favor of [Wife].

Another monetary award shall be made in favor of [Wife] and against [Husband] in the amount of $40,313.45 for ... half the value of the motorcycles and trailers that shall remain with [Husband]. This sum, too, shall be reduced to judgment against [Husband] and in favor of [Wife]. [Wife] also had the need to withdraw about $200,000.00 from her TSP retirement fund to pay for taxes and this litigation. As reflected in Appendix 1 , following the equalization of accounts, [Wife] retains marital assets totaling $505,084.60, which is $373,651.18 more than [Husband]. However, the non-marital assets retained by each party reflect that [Wife] retains non-marital assets in the amount of $103,350.00 and [Husband] retains non-marital assets totaling $282,453.00, which is a difference in assets of $179,103.00.

In consideration of these amounts, the Court finds a total monetary award of $62,313.45 in favor of [Wife] shall be awarded and reduced to judgment against [Husband]. The Court finds that the [Wife] shall be granted a spousal support in the amount of $2,000 per month with the cost of living increase to be adjusted pro rata in addition to the monthly amount. This award represented [Wife's] distributive share of [Husband's] World Bank pension, discussed above. [ 21 ] With this background in mind, we address Wife's specific contentions. B. Errors in Calculating Assets As indicated, the court looked to the total assets of each party, marital and nonmarital, in determining what would be an equitable monetary award.

Wife contends that the court's assessment of some of these assets was erroneous. As explained below, we agree, and therefore, we shall vacate the monetary award and remand for further proceedings consistent with this opinion. 1. Property Titled in One Party's Name Wife contends that the circuit court erred by dividing the value of property titled in one party's name and ordering the transfer of these solely titled assets. She asserts that the court did not have the authority to transfer ownership of the Allianz accounts and the Nissan, which were titled in Husband's name, and the court instead should have accounted for the values of these items in a monetary award.

FL § 8-202(a)(3) states: "Except as provided in § 8-205 of this subtitle, the court may not transfer the ownership of personal or real property from [one] party to the other." Accord Brewer , 156 Md. App. at 111 , 846 A.2d 1 . FL § 8-205(a) provides: (1) Subject to the provisions of subsection (b) of this section, after the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. (2) The court may transfer ownership of an interest in: (i) a pension, retirement, profit sharing, or deferred compensation plan, from one party to either or both parties; (ii) subject to the consent of any lienholders, family use personal property, from one or both parties to either or both parties; [ 22 ] and (iii) subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together[.] Here, with respect to the Nissan, Wife testified that it was titled in Husband's name, but it was the car she used to buy groceries and drive her son. Thus, the Nissan potentially could qualify as family use personal property, giving the court authority to transfer title to it pursuant to FL § 8-205(a).

The parties' son, however, had turned 18 by the time of the court's September 17, 2017, order. Neither party addresses whether this fact, that Amanle was not a minor at the time of the order, is relevant to the issue whether the Nissan constituted family use personal property. We need not decide the issue in this case because, although the court's initial ruling ordered the transfer of title of the Nissan, in the Amended Order, the court ordered that "Husband shall retain title and ownership of"