Beck v. Beck

²⁰¹ CATHELL, Judge. On June 17, 1993, appellee, Patricia A. Beck, filed a Complaint for Limited Divorce in the Circuit Court for Talbot County (Horne, J., presiding). On July 6, 1993, appellant, Donald G. Beck, filed a counterclaim for absolute divorce. After a two-day trial, the trial court entered a judgment on June 7, 1995.

The trial court granted appellant an absolute divorce on grounds of adultery and denied appellee’s request for alimony. The trial court did grant appellee a monetary award of $384,000 and $30,000 in counsel fees. Both parties appeal from the judgment of the trial court. Appellant/cross-appellee presents three issues for appeal: 1.

May a trial court find that the value of certain marital property is greater than what the evidence supports and, thereby, arrive at a higher monetary award, in favor of one party, then the actual total value of marital property otherwise found by the trial court justifies, given the trial judge’s reasoning? 2. Did the trial judge in the instant case abuse his discretion by prohibiting Appellant’s counsel from introducing newly-discovered evidence at trial based on perceived discovery failures? 3. Where a self-supporting, adulterous party to a Maryland divorce is unable to prove a ground for divorce and unsuccessfully pursues claims for pendente lite and permanent alimony, may the trial judge award that party substantial counsel fees based on her unsuccessful pursuit of such alimony? Appellee/cross-appellant presents two issues for review: Did the trial court err in failing to include as extant marital property amounts Dr. Beck had gambled away or otherwise used to have a good time after the marriage had undergone an irreconcilable breakdown?

Did the trial court err in admitting parol testimony to contradict the clear language in a release that a mortgage had been paid during the marriage, thereby making the property partially marital? ²⁰² We discuss each question presented by appellant and appellee individually. We shall relate the pertinent facts in the discussions below as necessary. I. APPELLANT’S QUESTIONS A. The Tortola Property Before making its monetary award to appellee, the trial court determined which property was marital property and valued that property as required by § 8-205 of the Maryland Code, Family Law Article (1984, 1991 Repl.Vol., 1995 Supp.) (FL). The trial court determined that the total value of the marital property was $1,779,908.

The court further found that appellee “should receive a monetary award which will result in her having the equivalent of 58% of the parties’ marital property.” The marital property included, among other assets, a residence located at Little Apple Bay, Tortola, British Virgin Islands (the Tortola property). Appellant argues that the trial court erred in determining the amount of the monetary award to which appellee was entitled. More specifically, appellant argues that in determining the value of the Tortola property, the trial court based its valuation on information not entered into evidence. This overvaluation of the Tortola property in turn, appellant contends, caused the monetary award to be greater than it should have been.

In Mayor of Rockville v. Walker, 100 Md.App. 240 , 640 A.2d 751 , cert. granted, 336 Md. 354 , 648 A.2d 464 (1994), we stated: It is hornbook law, memorialized in Md.Rule 8-131(c), that “[w]hen an action has been tried without a jury, the appellate court ... will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of witnesses.” This means that if, considering “the evidence produced at trial in a light most favorable to the prevailing party ...,” there is evidence to support the trial court’s determination, it will not be disturbed on appeal. Moreover, “[i]f there is any competent, ²⁰³ material evidence to support the factual findings below, we cannot hold those findings to be clearly erroneous.” Id. at 256, 640 A.2d 751 (citations omitted). In making his determination as to the value of the Tortola property, Judge Horne was presented with numerous conflicting valuations. He ultimately valued the property at $312,500.

Based upon our review of the record, this determination could have come from several sources: 1) the “Joint Statements of Marital and Non-Marital Property” required by Maryland Rule S74; 2) appellant’s admission at trial that he had, during his deposition, testified that, in his opinion, the value was between $300,000 and $325,000; 3) appellant’s S72 statement containing his admission of value of $300,000; or 4) all of the above. The S74 and S72 Statements On February 2, 1995, appellant filed “Defendant’s Proposed Joint Statement Of Parties Concerning Marital And Non-Marital Property Pursuant To Maryland Rule S-74.” In this proposed statement, appellant valued the Tortola property at $312,500. The parties later filed a “Joint Statement Concerning Marital And Non-Marital Property Pursuant To Maryland Rule S-74” on April 7, 1995, wherein the parties valued the Tortola property at $312,500. As we shall indicate, appellant also filed an S72 Statement.

Appellee argues that in valuing the Tortola property, the trial court could rely on the S74 and S72 Statements despite the fact that they were never formally offered and received into evidence during the two-day trial. We agree and explain. Maryland Rule S72, “Pleading,” provides, in subsection (f), that financial statements “shall be filed by the litigants in all actions in which alimony ... is claimed.” Maryland Rule S74 requires that the parties file a joint statement, as to their property, its classification (marital, nonmarital, or hybrid thereof), and value as agreed upon by the parties. It also requires that the statement include any properties, the classification and value of which the parties cannot agree upon.

As ²⁰⁴ to each of the relevant items covered by Rule S74, any dispute as to classification and value or both must be set out. This required statement results from the procedure set out in subsection (d) of Rule S74, which provides the method whereby the final joint statement, including any disputes, is to be formulated and ultimately filed with the court. Appellee filed her Plaintiffs Proposed S74 Statement on February 2, 1995. Thereafter, appellant filed Defendant’s Proposed S74 Statement on February 9, 1995.

In it, he agreed with appellee that the value of the Tortola property was $312,500. Therefore, as to each individual S74 Statement, an assertion as to value was made, and both parties agreed to. the value of the property. These proposed statements, under the rule, were required to be filed in the case. A pleading entitled Parties Joint Statement Concerning Marital and Non-marital Property pursuant to Maryland Rule S74 was filed by both parties, as required, prior to trial.

In that statement, although contending that the Tortola property was only partially marital (the wife contended that it was completely marital), appellant again agreed that its value was $312,500. Additionally, on July 1, 1993, appellant filed the “pleading” required to be filed by Maryland Rule S72, his financial statement. The rule mandates that such statements when filed are a “part of the formal pleadings.” In that statement, he valued the Tortola property at $300,000. Thereafter, on July 27,1993, appellee filed her financial statement.

In it, she valued the Tortola property at $275,000. In MCIC, Inc. v. Zenobia, 86 Md.App. 456, 487 , 587 A.2d 531 (1991), rev’d in part on other grounds, Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 , 601 A.2d 633 (1992), we noted that a trial judge had considered facts contained in a memorandum filed by the plaintiff in opposition to the defendant’s motion for summary judgment: [T]he Court of Appeals indicated that under Maryland law there is a prima facie presumption that an attorney has the authority to bind his client by his actions relating to the conduct of litigation. The Court noted that this was partic ²⁰⁵ ularly the case where admissions were made in the course of trial. We believe the rule is properly extended to admissions made on behalf of a client in documents drafted and filed in the ordinary course of litigation---- [W]e defined broadly an admission to include “the words or acts of a party opponent ... offered as evidence against him.

Admissions are considered to be substantive evidence of the facts admitted.” Because we regard the statements made in the Opposition as admissions ... and made on behalf of cross-appellants in the course of this litigation, the trial court properly considered this evidence.... [Empahsis added; citation omitted.] We then discussed the contents of variously filed complaints and the adoption in them of other complaints and held “blinder Maryland law, party admissions in pleadings are considered to be substantive evidence of the facts admitted.” Id. at 488 , 587 A.2d 531 . In the case sub judice, the joint S74 Statements to the effect that the Tortola property was valued at $312,500 were not only filed in the regular course of the proceeding, they were required by rule to be filed. They were, therefore, admissions by the parties in a judicial proceeding. Additionally, the S72 Statements were required to be filed by Rule S72, which expressly defines such statements as “[p]leading[s].” In his S72 Statement, appellant valued the property at $300,-000.

The trial court therefore had before it admissions by appellant that the Tortola property was valued at between $300,000 and $312,500. We hold that the facts and averments as to the properties made in the statements required to be filed by Maryland Rules S72 and S74 constitute judicial admissions and may be considered as evidence without the necessity for the formal introduction at trial of these documents. That admissions by parties contained in such statements may be used as evidence is buttressed by the Rules Committee’s proceedings relative to the passage of Rule S74. ²⁰⁶ In the Rules Committee’s formal'submission of proposed rule S74 to the Court of Appeals, the committee report’s introductory statement provided, in part: Proposed Rule S74 emanates from a recommendation of the Conference of Circuit Judges. In divorce cases where the disposition of property or a monetary award based on marital property is at issue, the filing of a joint statement before trial, identifying all of the property at issue and the positions of the parties with respect to that property will greatly assist the court in understanding and resolving the disputes.

The Committee found the need for such a requirement sufficiently pressing that it proposed a new Subtitle S Rule rather than await the comprehensive revision of that subtitle. The proposed Rule contains a procedure similar to the one prescribed for preparing a joint record extract, and incorporates the desired form in the body of the Rule. Finally, section e provides sanctions for failure to comply with the joint statement requirement generally similar to those available for noncompliance with discovery orders. Ninety-Sixth Report of the Standing Committee on Rules of Practice and Procedure, 13 Md.Reg. 2305 (1986).

It explained, similarly, in the “Explanatory Note”: Proposed Rule S74 responds to concerns expressed by the conference of Circuit Judges in a letter of October 14, 1985. Trial judges around the State routinely encountered litigants who were unprepared to present evidence as to the value of marital and non-marital property. In view of the mandate of Code Family Law Article, § 8-201 that “the court shall determine the value of all marital property”, the conference felt that a summary statement filed in advance of trial would aid trial judges in deciding issues of the nature and value of property. [Emphasis added.] Id. at 2306. In the explanatory note, the committee commented on the stipulatory nature of the process: Although at least one Circuit had directed the filing of joint stipulations as to the nature and value of property, no ²⁰⁷ specific procedure for arriving at these stipulations existed.

The Committee has patterned the procedure in proposed new Rule S74 after the procedure prescribed for filing a joint record extract in Rule 1028 c 2. [Emphasis added.] Id. The minutes of the meeting of the Rules Committee where the recommendation of proposed Rule S74 was discussed, in part, indicate: With regard to exceptions, it was again pointed out that the exceptions come into play only if the joint statement fails to fairly reflect the position of the parties. Ms. Ogle-tree stressed that the entire purpose of the procedure and the resulting statement, is to narrow the issues (relating to property) that are actually in dispute. The Reporter noted that the “exceptions” process is one more step to insure that the information before the court is complete and accurate .... ...

Judge Wilner ... advised that presently, without such a procedure, there is an avalanche of undisputed matters wasting the court’s time. The proposed procedure, Judge Wilner continued, simply narrows the areas of dispute for the court. The procedure has an additional benefit, he added, of promoting settlements. [Emphasis added.] Court of Appeals Standing Committee on Rules of Practice and Procedure, Minutes of a Meeting of the Rules Committee Held at Washington College, Chestertown 80-32 (July 20-21, 1986). While the Court of Appeals, when it finally adopted the rule in 1987, rearranged certain sections and added a source of funds provision in respect to property that the parties agree is nonmarital, it otherwise adopted the rule without substantive change.

It is clear that the purpose of the rule was to provide for a method by which, through the use of the admissions or stipulations contained in the S74 Statements, the trial courts, in the absence of other evidence, would, nevertheless, be able to comply with the Family Law Article provision mandating that the trial courts “shall determine the value of all marital ²⁰⁸ property.” FL § 8-204. In the statement, the parties are required to agree as to the classification and valuation of property in which there is no dispute. The purpose of the rule was also to reduce the complexity of the property issues by reducing the disputes in respect to them through the generation of admissions and stipulations resulting from the procedures contained in the rule. These statements are, by rule, required to be produced in the course of litigation.

We reiterate that the admissions and stipulations contained in Maryland Rule S72 and S74 Statements, when filed in a case as required, may be considered as evidence by trial courts without the necessity of a formal introduction of such statements at trial. In the case sub judice, the admissions or stipulations of appellant’s S72 and S74 Statements were properly before the trial court. They contained admissions of value of the Tortola property ranging from $300,000 to $312,500. Judge Home found the value of the property to be $312,500.

He did not err. B. The Marital Home The marital home, known as Ryder’s Rest, was jointly owned by the parties and was valued at $450,000. The lot was purchased by the parties during the course of the marriage for $68,500 in 1983. At trial, appellee’s counsel asked appellant “whether he could identify the source of the funds used to purchase [the Ryder’s Rest] lot.” Appellant answered, “I believe I can at this point.” Appellee’s counsel then tried to impeach appellant with statements made in his previous deposition testimony.

On further examination by appellant’s counsel, “[ajppellant’s lawyer attempted to introduce an exhibit that consisted of certain documents that reflected the source of those funds.” Appellee’s counsel objected on the basis that the document “was not produced to [appellee] during the course of discovery.” The trial court, declining to receive the exhibit, stated: ²⁰⁹ [I]t would appear that the [appellant] has failed to obey the order compelling discovery, and the Court, pursuant to Rule 2-433(b), will enter such order in regard to the failure as the Court feels is just, including one or more of the orders set forth in Section (a), and the Section 2-433 — Rule 2-433, Section (a), Subsection (2); the Court will order that the [appellant] not be allowed to support or oppose claims with the materials, the use of the materials that he failed to provide to counsel for the [appellee] in accordance with the order of the Court compelling the production of these materials. It is clear, under Maryland Rule 2-433(a)-(b), that the trial court may, when one of the parties violates an order compelling discovery, “prohibit[ ] that party from introducing designated matters in evidence.” Md. Rule 2-433(a)(2); see also Bartholomee v. Casey, 103 Md.App. 34, 48 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995). It is especially crucial for the trial court to exclude such evidence “[o]n the eve of trial ... [where] ‘the injury inherent in failure to make discovery is unfair surprise.’ ” Bartholomee, 103 Md.App. at 48 , 651 A.2d 908 (quoting John A. Lynch, Jr. & Richard W. Bourne, Modern Maryland Civil Procedure, § 7.8(c), at 597 (1993)). Appellant argues that the trial court abused its discretion by excluding all evidence that “tended to prove that ... over $60,000.00 in his non-marital property was directly traceable to the parties’ Ryder’s Rest realty.” Appellant further argues, “In the instant case, there was no evidence that Appellant’s failure to provide the exhibit in question to the Appellee’s trial counsel sooner than the first day of trial was willful and contumacious.” “Maryland law is well settled that a trial court has broad discretion to fashion a remedy based on a party’s failure to