Brandon v. Brandon

ROSALYN B. BELL, Judge. The chancellor of the Circuit Court for Prince George’s County granted Dellie V. Brandon a monetary award of fifty percent of Horace Wayne Brandon’s pension, when ²¹⁸ and if received, alimony of $450.00 per month indeterminately and attorney’s fees of $2,632.40. Mr. Brandon challenges each of those awards as court error. Mrs. Brandon cross-appeals asking: “Did the Court err in granting to the Defendant [ (Cross/Appellant) ] an alimony award of $450.00 per month rather than $600.00 per month as recommended by the Master considering the facts of this case?” We discern much confusion and delay in this matter and some error.

Accordingly, we will remand. Horace Wayne Brandon filed suit for divorce alleging a separation that existed between the parties for close to ten years. Mrs. Brandon answered the complaint requesting alimony, a marital award and attorney’s fees. A full evidentiary hearing was held before the Master for Domestic Relations Causes in June of 1983.

The master recommended, inter alia, a divorce and alimony of $200 per month for five years. He also found that there was insufficient evidence to grant a monetary award. Mrs. Brandon took exception to the failure to recommend a monetary award and to the amount and duration of the recommended alimony. 1 The master filed a supplemental report enlarging upon his reason, not pertinent here, for recommending $200 per month in alimony for five years. A final decree of divorce was then entered. 2 A few months later a hearing was held on Mrs. Brandon’s exceptions.

As a result, the chancellor filed an Opinion and Order remanding the case to the master for a number of reasons, including the failure to identify and value the marital property. A second hearing was held before the master in April of 1984. The primary evidence presented at this hearing was ²¹⁹ the testimony of an economist valuing Mr. Brandon’s pension. 3 Also, Mrs. Brandon offered evidence of some changes in her financial condition. The master filed another report, this time recommending alimony of $600 per month to Mrs. Brandon “through” the date of Mr. Brandon’s retirement, and thereafter fifty percent of the retirement income, if and when collected, “after any tax deductions.” Subsequently, both parties took exceptions to this report.

Mrs. Brandon excepted to the amount of the alimony award and the denial of attorney’s fees. Mr. Brandon also excepted to the amount of the alimony award and the awarding of half of his pension. The chancellor again remanded the case to the master for the same purposes set out in the first order, including to identify and value the marital property, to make a decision on attorney’s fees, and to clarify the basis upon which he made the new recommendations. The chancellor also questioned the consideration of Mrs. Brandon’s testimony relating to changed circumstances.

The master filed a third report and both parties again took exceptions. Upon hearing those exceptions, the chancellor reviewed the record and entered an order granting Mrs. Brandon $450 per month alimony, a fifty percent vested interest in Mr. Brandon’s pension and a $2,632.40 award of attorney’s fees. Two weeks later, the chancellor modified the order, making the alimony award retroactive to the date of the first hearing approximately eighteen months prior. 4 ²²⁰ Mr. Brandon appeals from both orders. Mrs. Brandon appeals only from the first order.

INDETERMINATE ALIMONY OF $450 PER MONTH RETROACTIVE TO JUNE 20, 1983 We will consider cross/appellant’s sole issue in conjunction with appellant’s first issue, as one is merely the obverse of the other. Appellant, in his exceptions and herein, complains of the disparity between the master’s recommendations and the alimony finally awarded as to amount and duration. He points out that during the course of this litigation there were at least three different alimony awards recommended and/or entered: (1) As a result of a show cause order in April of 1983, the court ordered appellant to pay $279 per month pendente lite. (2) In June of 1983, the master held a full evidentiary hearing and recommended $200 per month for five years.

(3) The chancellor on hearing exceptions to the master’s report did not find that recommendation improper as to amount, but ordered only that it be reviewed in light of any monetary award. (4) After remand by the chancellor in October of 1983, the master recommended tripling the amount of alimony to $600 per month and extended its duration through the date of appellant’s retirement. At this subsequent hearing, the master received additional testimony concerning alimony although he stated on a later remand that he did not consider it. The sole fact he claimed to have considered in making this change was that he awarded to appellee one- ²²¹ half appellant’s pension if and when collected “after any tax deductions.” 5 (5) After the second remand and report and exceptions, the chancellor in January of 1985 awarded $450 per month alimony with no termination date.

On a supplemental order, he made the payments retroactive to June of 1983. Appellant concludes that the chancellor erred and abused his discretion in setting the final alimony award, merely “compromising” between the master’s original and modified alimony figures. Appellant has reason to complain. The problems, whatever they may have been between the master and the chancellor, were not of his making nor were they the making of appellee.

We do not, however, find the chancellor’s award as to amount in error. We do question its duration. Let us explain. Amount Our review is not of the master’s actions but those of the chancellor.

The chancellor has several options upon receipt of the master’s recommendations. He may order de novo fact-finding in whole or part, or he may rule exclusively upon the report of the master. Wenger v. Wenger, 42 Md.App. 596 , 402 A.2d 94 (1979). If he chooses this latter course, “he should defer to the fact-finding of the master where that fact-finding is supported by credible evidence and is not, therefore, clearly erroneous.

The chancellor, however ... always reserves unto himself the prerogative of what to make of those facts — the ultimate disposition of the case.” Wenger v. Wenger, 42 Md.App. at 602 , 402 A.2d 94 . The evidence and testimony before the master must be ²²² before the chancellor when he makes his decision. Dobrow v. Dobrow, 50 Md.App. 465 , 439 A.2d 596 (1982); Ellis v. Ellis, 19 Md.App. 361 , 311 A.2d 428 (1973). The master, nevertheless, serves a valuable function of tentative fact-finding, especially in light of the fact that he hears the witnesses and observes their demeanor.

Wenger v. Wenger, 42 Md.App. at 603-04 , 402 A.2d 94 . In the instant case, appellant contends that since the chancellor chose to rely on the reports of the master, he should have deferred to the facts found in the master’s first report filed after the hearing in June of 1983. He urges that to double that initial recommendation and make the alimony award indefinite was a clear abuse of discretion. If the chancellor chose not to hold a hearing de novo, the only facts relevant to the ultimate alimony award would have been those adduced at the hearing before the master in June.

Additional testimony, however, was taken before the master in April of 1984. We must look then to the basis upon which this additional testimony was taken, because this evidence was before the chancellor when he finally determined the alimony award. Md. Rule 596 § h. 6 6 provided that at a hearing on exceptions, no additional evidence could be presented “unless the exceptant has set forth in the exceptions, with particularity, the additional evidence which he desires to offer at the hearing and specifically requests in the exceptions that additional evidence be taken at the hearing, with the reasons why the evidence was not offered before the Master. The court may in its discretion (i) remand the matter to the Master to hear and make appropriate findings or conclusions in regard to the additional evidence and to report thereon, (ii) hear and consider the additional evidence, or (iii) conduct a de novo hearing.” ²²³ The exceptions to the master’s first report filed by appellee set forth no additional evidence she wished to offer.

She made no request that additional evidence be taken. Appellant, in his opposition, sought no additional testimony either. Hence, under Md. Rule 596 § h. 6 and Dobrow, supra, the chancellor was to consider only the evidence presented before the master at the first hearing in June. The chancellor, however, correctly concluded that when setting alimony he was required to consider as a factor any monetary award granted.

Md.Fam.Law Code Ann., § 11-106(b)(11)(ii)(1984). To establish a monetary award, the statute and case law require him to make findings on the identity and value of the marital property. Md.Fam.Law Code Ann., § 8-205(a) (1984); Grant v. Zich, 53 Md.App. 610 , 456 A.2d 75 (1983), aff'd. 300 Md. 256 , 477 A.2d 1163 (1984). The master had failed to do so.

The chancellor concluded that even though neither party proffered additional evidence, he must have evidence of the identity and value of the marital property to proceed. The predicament is obvious. We need not, however, concern ourselves with whether the taking of additional testimony here was necessary or appropriate because appellant does not complain about the evidence that was adduced on the second remand relative to the value of the marital property, and the master stated he did not consider the evidence relative to a change in the financial status of appellee taken at the second hearing. So far as