Doser v. Doser

HOLLANDER, Judge. Pamela Doser, appellant, filed a complaint for absolute divorce in the Circuit Court for Montgomery County on September 17, 1991, on grounds of desertion. Following a lengthy hearing before a Domestic Relations Master in November, 1992, Ms. Doser filed exceptions to the master’s findings and recommendations, which the circuit court heard on June 3, 1993. At the close of the hearing, the court orally overruled all exceptions but one—the finding as to the value of certain marital property—and, as to the one exception, indicated that it would remand to the master to take further testimony.

The court directed the parties to draft an order to that effect, but the parties could not agree on the content of the order. More than a year later, on August 3, 1994, the court heard de novo testimony, limited to the grounds of divorce. That day, the court issued a written order granting divorce nunc pro tunc to the date on which the master filed his Findings and Recommendations. The court also overruled all of Ms. Doser’s exceptions, including the one concerning the value of marital property.

From that judgment, Ms. Doser now appeals. ³³⁵ Appellant presents six issues for our consideration, which we have re-ordered for clarity: 1. Did the trial court commit error in failing to issue findings of fact and conclusions of law? 2. Did the trial court commit error in failing to use its independent judgment on the issue of marital property valuation and alimony? 3. Did the trial court commit error in failing to permit evidence of the marital property’s value as of the date of the divorce? 4.

Did the trial court abuse its discretion in failing to remand to the master after stating on the record that it would be remanded for further presentation of evidence concerning the value of marital property? 5. Did the trial court abuse its discretion in failing to award an adequate amount of indefinite alimony? 6. Did the trial court commit error in failing to award [Ms. Doser] her full attorney’s fees? In light of Domingues v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991) and its progeny, Kirchner v. Caughey, 326 Md. 567 , 606 A.2d 257 (1992), Bagley v. Bagley, 98 Md.App. 18 , 632 A.2d 229 (1993), and Lemley v. Lemley, 102 Md.App. 266 , 649 A.2d 1119 (1994), we answer Questions 1 and 2 in the affirmative.

Accordingly, we shall vacate the Chancellor’s order and remand for such further proceedings as the court deems necessary in order to make more specific findings with respect to each exception. We also agree, with respect to Question 3, that the court erred in failing to value the marital property as of the date of the divorce. We shall address the remaining issues for the guidance of the trial court. 1 Md.Rule 8-131(a). ³³⁶ Factual Background The parties hotly contest many of the facts. Nevertheless, the following summary—gleaned from the testimony before the master and the Chancellor, as well as their decisions— appears largely undisputed.

The parties were married on December 17, 1966. They have three children: Christopher, born in 1967; Robin, born in 1969; and John, born in 1981. Beginning in the mid-1970s, Mr. Doser occasionally left the home for extended periods, sometimes without warning and without informing Ms. Doser of his whereabouts. The parties engaged in marital counsel-ling, but whatever spawned the discord was not healed by it.

Finally, in January, 1990, Mr. Doser left the home permanently, intending to end the marriage. Mr. Doser, who was 52 years old when his wife filed for divorce, is a professional golfer. He owns a' 52% interest in a limited partnership called the Montgomery Village Golf Club (“Montgomery Village”). He also owns a minority interest of 30% in the Lake Arbor Golf Club (“Lake Arbor”).

There is no dispute that these two assets qualify as marital property. Although Mr. Doser’s annual income is disputed, it ranges between $75,000 (using only his salary from Montgomery Village) and approximately $105,000 (per his personal tax returns). Following the marital separation, Mr. Doser lived, rent-free, in an abandoned farmhouse located on the proposed site of a project with which he was involved. When Ms. Doser filed for divorce, she was a 47-year-old full-time homemaker and, during the marriage, she had no ³³⁷ appreciable income.

Moreover, she suffered from post-polio syndrome. Ms. Doser has weak muscles; she has pain in her shoulders and knees, and she cannot remain standing for long. In 1988, she began taking correspondence courses toward a bachelor’s degree in psychology, which she earned in 1992. She planned to earn a masters degree and become a qualified counselor sometime in 1995.

Originally, the case was scheduled for a hearing before a master on June 22, 1992. At the hearing, however, appellant requested a continuance in order to retain an expert to value appellee’s ownership interests in the two country clubs; she asserted that she had not yet done so due to a lack of funds. The master granted the continuance, ordered appellee to put adequate funds in an escrow account to pay for the valuation, and postponed the hearing until November, 1992. Thereafter, J. Hunter Pugh, Jr., the appraiser hired by appellant, estimated in his report that, among other assets, Mr. Doser’s interest in Montgomery Village was worth over $2 million.

As Mr. Pugh anticipated being unable to attend the hearing before the master, the parties prepared a de bene esse deposition. During the deposition, Mr. Pugh explained the basis for his valuations. In particular, he specified the formulas that he used and the assumptions he had made. On cross-examination, to the surprise of appellant, Mr. Pugh acknowledged that he had grossly misread the tax returns of Montgomery Village, and that as a result, he could no longer stand by his original estimate of value.

Mr. Pugh never performed any further analysis and was not paid. On November 23 and 24,1992, the master held an evidentiary hearing. When Ms. Doser did not offer Mr. Pugh’s de bene esse deposition, Mr. Doser did so, accompanied by an exhibit, prepared by counsel, in which the “correct” numbers (taken from the tax returns) were substituted into the formulas discussed by Mr. Pugh in the deposition. Over appellant’s objection, the master accepted the combined deposition and exhibit.

Ms. Doser sought to call another expert, but because the expert had been retained only recently, the testimony was ³³⁸ excluded. Consequently, no other expert testimony was presented with respect to the value of the Montgomery Village asset. In addition, the master heard testimony from Josephine Bloom, the comptroller of Montgomery Village. Bloom averred that the partnership had some $1,587,000 of long-term liabilities, of which $722,000 were assumed as part of a large modernization effort in 1991.

The financial statements of Montgomery Village for 1991 and 1992 were introduced. Mr. Doser, as a lay witness, testified that he believed that his share of Montgomery Village was worth only $850,000, primarily due to other outstanding debts. Ms. Doser testified that Mr. Doser, in 1990, said he estimated the value of the total assets of Montgomery Village at $4 million, and thus his interest at over $2 million. The master filed his Findings and Recommendations on February 3, 1993.

In it, he found that the value of Mr. Doser’s interest in Montgomery Village was $832,000, which he rounded to $850,000. 2 He found that Mr. Doser’s annual income was $76,204 and Ms. Doser’s income was zero. The master recommended a monetary award of $433,000. With respect to alimony, the master found that Mr. Doser was going increasingly into debt supporting two households. Accordingly, the master suggested that, until the home was sold and the proceeds divided, Mr. Doser should pay $3,000 in monthly alimony, of which $2,750 would be allocated to pay the two outstanding mortgages on the marital home, and that the alimony should terminate altogether upon sale of the marital home.

In effect, the master’s recommendation would have provided Ms. Doser with $250 per month in alimony pending sale of the home, plus payment of the mortgages. The master also recommended an award of $10,000 in attorney’s fees, specifically finding that the amount was fair under the circumstances and that Mr. Doser had the ability to pay it. ³³⁹ Ms. Doser noted several exceptions to the master’s findings and recommendations. She requested a remand to the master for further testimony or, in the alternative, for a de novo hearing on all issues. Although her exceptions do not directly correspond to any particular numbered factual finding, we glean from her argument in the Exceptions that Ms. Doser challenged, inter alia, the following findings and recommendations: 1. the finding that Mr. Doser’s salary was only $76,000; 2. the finding with respect to the value of the Montgomery Village asset, based on the following errors: a. the master’s erroneous reliance on the exhibit prepared by Mr. Doser’s counsel purporting to correct the computational errors in Mr. Pugh’s appraisal; b. absent the exhibit prepared by Mr. Doser’s counsel, there is no evidence concerning the value of the Montgomery Village asset; c. the master’s erroneous failure to account for an abnormal decrease in the Montgomery Village cash flow caused by lengthy upgrades in 1991; and d. the master’s erroneous treatment of the debts of Montgomery Village as marital debt, and his concomitant use of the full amount of those debts to reduce the value of Mr. Doser’s ownership portion; 3. the recommendation against awarding indefinite alimony; 4. the recommendation of awarding rehabilitative alimony of only $250 per month; and 5. the recommendation of awarding only $10,000 attorney’s fees, rather than the $18,000 her counsel had billed her.

On June 3, 1993, at the hearing on the exceptions, Ms. Doser argued that the flaw in Mr. Pugh’s analysis justified reopening testimony with respect to all property issues. The court apparently agreed with Ms. Doser that the master’s finding with respect to the value of the Montgomery Village asset was flawed, because it indicated that it intended to refer the case back to the master to take further testimony with ³⁴⁰ respect to the asset. 3 The court did not, however, specify the particular ground upon which it relied in reaching its conclusion. Moreover, the Chancellor indicated that further testimony should be restricted to the value of Mr. Doser’s interest in Montgomery Village. As we have noted, at the close of the hearing, the Chancellor directed the parties to draft an order for the court’s signature reflecting its decision.

When the parties returned to court on July 8, 1994, still unable, after thirteen months, to agree on the language of the order, there was some confusion as to the purpose of the hearing. Mr. Doser, uncertain whether testimony was to be taken, subpoenaed Ms. Doser so that there would be no excuse for continuing the proceedings on the grounds that not all parties were present. On the other hand, Ms. Doser anticipated that the court would grant a divorce but did not expect that the court would take testimony or decide any other issues. Based on the court’s earlier comments, she expected the court to remand to the master for further proceedings, and so she filed a motion objecting to any bifurcation of the ³⁴¹ proceedings.

But the Chancellor apparently believed that, on June 3, 1993, everyone had agreed that any testimony would be taken by the Chancellor himself, and that the case would not be remanded. Thus, the court concluded the hearing and called counsel into chambers. What was said there is not in the record. On August 3, 1993, the trial court heard testimony concerning only the grounds for divorce.

At the close of the hearing, the Chancellor said, in pertinent part, as follows: Okay. The Court does find that testimony [adduced] this morning between the parties and the corroborating witness satisfies the legal requirements for a divorce as prayed. The Court will grant the divorce, and before I sign any order, I will take under advisement the issue of whether it should be referred back to the Domestic Relations Master or not. The hearing ended without further testimony or significant discussion.

Following the hearing, the court issued a written Order that provided, in pertinent part, as follows: Upon Consideration of the Report and Recommendations of the Domestic Relations Master ..., the Plaintiffs Exceptions ..., the Defendant’s Response ..., the Transcript of the Proceedings convened before the Master ... on November 23, 1992 and November 24, 1992, [and] the arguments of counsel at the hearing on the Plaintiffs Exceptions before this Court, it is this 3rd day of August, 1994 by the Circuit Court for Montgomery County, Maryland, ORDERED, that Proposed Recommendations and Findings and Recommendations of the Domestic Relations Master are, and the same are hereby adopted, ratified, affirmed and accepted by this Court, as of the date of its filing, to wit: February 3, 1993, subject to the following; and it is further ORDERED that the Plaintiffs Exceptions to the Report and Recommendations of the Domestic Relations Master are overruled and denied, subject to the following; and it is further ³⁴² ORDERED, that' Master’s Proposed Judgment of Absolute Divorce is hereby adopted, ratified, affirmed and accepted by this Court as of the date of its filing, to wit: February 3, 1993, as more fully set forth herein, and it is further ORDERED, that based on the hearing before the Domestic Relations Master ... it is hereby ADJUDGED, that the Plaintiff, PAMELA W. DOSER, be and she is hereby granted an absolute divorce from the Defendant, JOHN C. DOSER, nunc pro tunc, upon receipt of testimony to obviate any stateness; and it is further ****** ORDERED, that the Defendant shall pay to the Plaintiff the sum of $3,000 per month as alimony, effective February 1, 1993, until such time as the marital home ... is sold and transferred as ordered elsewhere herein, with the Defendant able to satisfy $2,750.00 of this alimony obligation by making timely monthly payments of the two mortgages on the marital home and the remaining portion of the monthly alimony obligation to be paid to the Plaintiff ... and it is further ***** Hi ORDERED, that a monetary award is hereby granted to the Plaintiff, payable by the Defendant, in the amount of $433,000.00, including the value for Montgomery Village Golf Club, with any adjustment to be made according to Order of Court ... and it is further, ORDERED, that-the Defendant shall pay to the Plaintiff the sum of $10,000.00 as his share of her attorney’s fees and costs. This amount shall be paid out of the Defendant’s share of the sale proceeds of the marital home, if not previously paid; and it is further ORDERED, that the marital home and the jointly-owned personal property therein shall be immediately listed for sale, with the net proceeds to be distributed equally between the parties, subject to other provisions in this Judgment of Absolute Divorce.... ³⁴³ (Underline in original, italics added). Neither the Chancellor’s oral comments (to the extent they constitute his opinion) nor his Order of August 3, 1993, otherwise addresses the substance of any of appellant’s exceptions. Discussion I. Findings Of Fact And Independent Judgment Appellant challenges the trial court’s failure to address with specificity appellant’s exceptions to the master’s findings of fact, including the value of the marital property.

As a consequence, she argues, by adopting the master’s recommendations in toto, the Chancellor failed to exercise his independent judgment with respect to the issues underlying the monetary award, alimony, and attorney’s fees. A master’s findings of fact are merely tentative and do not bind the parties until approved by the court. Lemley, 102 Md.App. at 278 , 649 A.2d 1119 (citing Wenger v. Wenger, 42 Md.App. 596, 603 , 402 A.2d 94 , cert. granted, 286 Md. 755 (1979), appeal dismissed per stipulation, January 1,1980). In reviewing exceptions to a master’s findings of fact, the chancellor must address each exception and explain, with specific references to the record, how and why the chancellor resolves a given exception.

Domingues v. Johnson, 323 Md. 486, 496-97 , 593 A.2d 1133 (1991); Lemley v. Lemley, 102 Md.App. at 278-79 , 649 A.2d 1119 . See also Kirchner, 326 Md. at 572-73 , 606 A.2d 257 (chancellor must also address the grounds upon which the ultimate conclusions rest). Even when the chancellor has overruled the exceptions, the chancellor is not excused from the duty to explain. Lemley, 102 Md.App. at 279 , 649 A.2d 1119 .

This is true because, upon due consideration of the master’s recommendations, the court may use the master’s facts to support what it concludes in its independent judgment is the optimal resolution. Bagley, 98 Md.App. at 31-32 , 632 A.2d 229 . “A given set of facts does not lead mechanically to a single, automatic disposition but may support a range of discretionary dispositions.” Wenger, 42 Md.App. at 602 , 402 A.2d 94 . As a consequence, the chancellor’s decision ordinari ³⁴⁴ ly will not be overturned on appeal. Bagley, 98 Md.App. at 31-32 , 632 A.2d 229 .

In Bagley , we summarized the proper interaction between a master and chancellor in an exceptions hearing. We said: As a general rule, a master’s findings of fact are given deference under the clearly erroneous rule. Where a party argues that facts found by the master have no foundation in the record, however, deference under the clearly erroneous rule recedes. The chancellor must carefully consider the allegations and decide each such question. “The chancellor should, in an oral or written opinion, state how he resolved those challenges.

Having determined which facts are properly before him, and utilizing accepted principles of law, the chancellor must exercise independent judgment to determine the proper result.” * ❖ ❖ The Court was cognizant of the “substantial” burden carried by the chancellor. In this vein, the Court stated: The necessity that the chancellor rule on challenges to findings of fact which may involve testimony spread throughout hundreds of pages of transcript, the difficulty of making a decision as to the best interest of a child without personally observing the witnesses, and the critical nature of the decision that must be made, as well as the wide discretion that is necessarily afforded that decision by the appellate courts, all speak to the care and attention that must be given the case by a chancellor. Domingues, 323 Md. at 497 , 593 A.2d 1133 . 98 Md.App. at 30 , 632 A.2d 229 (other citations to Domingues omitted; emphasis ours). To assist the chancellor, the litigants must provide specific citations to the record; the court need not comb the record for evidence supporting or refuting a finding.

Domingues, 323 Md. at 496 , 593 A.2d 1133 ; Lemley, 102 Md.App. at 279 n. 2, 649 A.2d 1119 ; Bagley, 98 Md.App. at 31 , 632 A.2d 229 . This rule applies even when the proponent of the exception is arguing that the record is devoid of any evidence. Domingues, 323 Md. at 496 , 593 A.2d 1133 . When a party ³⁴⁵ fails to cite to the record, however, the chancellor must still address each exception.

Bagley, 98 Md.App. at 31 , 632 A.2d 229 . “At a minimum, [the chancellor is] required to summarize briefly the evidence in the record that supports each challenged fact.” Lemley, 102 Md.App. at 279 , 649 A.2d 1119 (footnote omitted). In the instant case, the record does not reflect that the trial judge complied with Domingues and its progeny by evaluating the evidence adduced before the master. The Order merely states that the “Plaintiffs Exceptions to the Report and Recommendations of the Domestic Relations Master are overruled and denied.” Similarly, apart from the issue of concerning Montgomery Village, the Chancellor’s oral comments, to the extent they constitute his opinion, do not address the exceptions which had been noted. Without a clear determination of the factual disputes, the Chancellor’s adoption of the master’s recommendation cannot be considered a proper exercise of independent judgment.

Thus, the court failed to comply with the clear dictates of Domingues, Kirchner, Bagley, and Lemley. Therefore, as in each of those cases, this case must be remanded for further consideration so that the Chancellor may address specifically each exception to the Master’s findings of fact.

II

The Date Of The Divorce Decree ' Appellant complains that the trial court erroneously valued the marital property as of the date of the master’s findings, which preceded, by almost two years, the date on which the court resolved appellant’s exceptions. The Chancellor, in his order, indicated that he was granting the divorce nunc pro tunc “to obviate any staleness.” Ms. Doser argues that the court’s refusal to permit updated evidence as to current value and granting the divorce nunc pro tunc constituted reversible error. The power to grant an absolute divorce is vested solely in the circuit court pursuant to Md.Code Ann., Fam.Law Art. ³⁴⁶ (“FL”) § 7-103 (1991 & Supp.1995). This section, primarily concerned with the grounds upon which the court may grant absolute divorce, does not expressly limit the power to grant a divorce nunc pro tunc.

Nevertheless, we are of the view that, under the circumstances, the Chancellor’s entry of divorce nunc pro tunc was inappropriate. In Prince George’s Co. v. Commonwealth Land Title Ins. Co., 47 Md.App. 380 , 423 A.2d 270 (1981), we said: Black’s Law Dictionary (5th ed. 1979) at page 964 defines the term “nunc pro tunc ” as follows: Lat. Now for then.

A phrase applied to acts allowed to be done after the time they should be done, with a retroactive effect, i.e., with the same effect as if regularly done. Nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake. Nunc pro tunc merely describes inherent power of court to make its records speak the truth, i.e., to record that which is actually but is not recorded.... The key phrase in the above-recited definition is “office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake.” Our research has revealed that a number of our sister jurisdictions have ruled that the purpose of a nunc pro tunc entry is to correct a clerical error or omission as opposed to a judicial error or omission.

In Bostwick v. Van Vleck, 106 Wis. 387, 390 , 82 N.W. 302, 303 (1900), the Wisconsin Supreme Court set out “[t]he test to be applied in determining whether an error in a judgment is of a judicial character, or a mere clerical mistake which may be corrected in the court where it was made at any time, saving intervening rights of third parties and with due regard to equitable considerations,” as being ³⁴⁷ whether the error relates to something that the trial court erroneously omitted to pass upon or considered and passed upon erroneously, or a mere omission to preserve of record, correctly in all respects, the actual decision of the court, which in itself was free from error. If the difficulty is found to be of the latter character, it may be remedied as a mere clerical mistake, which will not have the effect to change the judgment pronounced in the slightest degree, but merely to correct the record evidence of such judgment. Id., at 385-86, 82 N.W. 302 (citations omitted from internal quotations). See also generally Annotation, Divorce—Decree Nunc Pro Tunc, 19 A.L.R.3d 648 (1968 & Supp.1994); 46 Am.Jur.2d Judgments §§ 196-230 (1969); 49 C.J.S. Judgments §§ 117-121 (1969); 60 C.J.S. Motions & Orders § 57 (1969).

It is clear from our discussion in Commonwealth that the function of the entry of an order or judgment nunc pro tunc is to make the record reflect an action actually and properly taken but improperly recorded due to clerical error, not to correct a judicial error or to adjust for a failure to have a matter resolved in a timely fashion. In the instant case, because the power to grant absolute divorce is vested solely in the circuit court, the master’s recommendation that divorce be granted cannot be treated as an actual order of divorce that simply had not been entered due to error. And, because the Chancellor had not yet passed on the merits, there was no order from the circuit court prior to the exception hearing. Thereafter, at the hearings on June 3, 1993 and July 8, 1994, the Chancellor did not purport to grant the divorce.

Consequently, there was nothing erroneous in the record, clerical or judicial, for the Chancellor to correct by entering the divorce decree nunc pro tunc. If the court could not impose a nunc pro tunc decree in order to grant the divorce retroactively, then, as we explain below, the court could not rely on the property values found by the master in his Findings and Recommendations. ³⁴⁸ III. Valuation Of Marital Property The law is settled that, in a proceeding for absolute divorce, the value of marital property must be decided as of the date on which divorce is actually entered. Fox v. Fox, 85 Md.App. 448, 460-61 , 584 A.2d 128 (1991); Rosenberg v. Rosenberg, 64 Md.App. 487, 507-08 , 497 A.2d 485 (1985); Wilen v. Wilen, 61 Md.App. 337, 345-46 , 486 A.2d 775 (1985); Dobbyn v. Dobbyn, 57 Md.App. 662, 674-75 , 471 A.2d 1068 (1984).

As we have noted, the court below relied on evidence of value obtained almost two years before the divorce merits hearing. Apparently, the court attempted to avoid the issue of staleness by entering the decree of divorce nunc pro tunc. But that decree was, as we have said, erroneous. Appellant strenuously complains that the master, in finding the value of the Montgomery Village asset, improperly relied on the de bene esse deposition and the supplemental exhibit prepared by appellee’s counsel.

We need not decide this issue because, as we shall explain, the court will have to take fresh testimony as to value. Consequently, the issue as to the de bene esse deposition and supplement will become moot. 4 The evidence as to the value of Montgomery Village, including the controversial de bene esse deposition and supplemental exhibit, is now about four years old. Given the size of the asset and the staleness of the evidence, the trial court, on remand, probably will not be able to rely on the earlier evidence in determining the value of the asset. Compare