Flanagan v. Flanagan

HOLLANDER, J. By “Divorce Order” dated March 15, 2007, the Circuit Court for Talbot County granted Stephanie Bonn Flanagan, appel ⁴⁹⁸ lee, an absolute divorce from Wayne Edward Flanagan, appellant. In addition, the court granted a monetary award to appellee of $30,000; ordered the sale of the marital home, with equal division of proceeds; awarded contribution of $1,045.81 to appellant; and awarded appellee $2,500 in attorney’s fees. On appeal, Mr. Flanagan presents four contentions, which we have recast in the form of questions: I. Did the court err in granting a divorce based on the ground of mutual and voluntary separation, and in not granting appellant a divorce on the ground of desertion?

II

Did the court err in granting appellee a marital award?

III

Did the court err in granting appellee a portion of her attorney’s fees?

IV

Did the court err in denying the motion to revise or amend the judgment, or to clarify it, where a hearing on the motion could have provided potentially dispositive reasoning prior to the transmittal of the record that could have rendered this appeal unnecessary? For the reasons that follow, we shall affirm in part, vacate in part, and remand for further proceedings. I. PROCEDURAL AND FACTUAL SUMMARY The parties were married on November 23, 1984. It was a second marriage for each, and they have no children together.

Ms. Flanagan left the family home on February 2, 2005. On April 11, 2006, appellee filed a Complaint for Absolute Divorce on the ground of constructive desertion. Appellant filed an Answer and a Counter-Complaint for Absolute Divorce on May 17, 2006, on the ground of actual desertion. Among other things, each party sought a monetary award and attorneys’ fees.

At the time of trial on September 19, 2006, appellant was 68 years old and appellee was 64 years of age. On September 15, 2006, the parties filed a Joint Statement of the Parties Concerning Marital and Non-Marital Property. ⁴⁹⁹ They agreed that the following four items were marital property: (1) their jointly-titled marital home, at 311 Kerr Avenue in Denton, Maryland, which was valued at $165,000, with a mortgage of $91,123.78, and a home equity loan of $19,998.76/ for a total equity of $53,877.46; (2) a retirement account owned by appellant, valued at $10,941.73 as of June 2006; (3) a 401(k) account owned by appellee, valued at $2,567.32, against which she had borrowed $1,886.84, for a total value of $640.48 as of August 2006; and (4) a 403(b) account owned by appellee, valued at $1,630.26 as of June 2006. The joint statement also said: “The parties agree that all issues with regard to the remaining property that they hold have been resolved.” Appellant was employed at an auto parts store, and received additional income from social security and a part-time auctioneering job. In 2006, he had a total annual income of $39,696.

According to the parties’ joint tax return, appellee earned $47,844 in 2005, as an administrator for the Grayce B. Ken-Fund. 1 2 3 She testified, however, that she contemplated retirement in October 2006, because her job was “stressful” due to personnel changes and a change in her work load, and she wanted “to be in closer proximity to a support system.” She expected to receive a monthly social security benefit of $1,061, and to seek other employment to supplement her social security. Appellee also testified that she was taking several medications for cholesterol, depression, and panic attacks, and had seen two therapists since 2002/ Appellee recounted that she moved out of the marital home on February 2, 2005, leaving appellant a letter explaining her decision. She and appellant had lived separate and apart since that date, with no hope of reconciliation. ⁵⁰⁰ The letter was admitted into evidence. In particular, appellee cited appellant’s drinking and internet sexual contacts as the reasons for her “decision,” stating that “it is more painful to live with you than face life alone.” The letter referred to an incident with a woman named Marianne (discussed infra), stating: “[Y]ou agreed during joint counseling that you would no longer engage in that behavior.

And yet you have continued despite your agreement not to.” Appellee also complained that appellant began “drinking every weeknight as soon as [he][got] home and start[ed] drinking as early as 3:30 in the afternoon on weekends.” In addition, she claimed that she “walk[ed] on eggshells” when appellant drank, fearing that he would “erupt and spew forth confrontational, threatening and accusatory verbal bile enumerating my real and imagined slights, transgressions and shortcomings covering the last twenty plus years.” Moreover, appellee commented: On the average, we spend 51 waking hours together a week. When you are sober I admire your intelligence, your wit and enjoy being with you. However, I have to deal with your varying degree of intoxication every night for a conservative average of 37 hours per week. This isn’t the quality of life I expected to be leading at this stage of my life.

Ms. Flanagan added: “I have resolved not to live my life under these conditions any longer. I want peace.” In her testimony, appellee identified two reasons for her departure from the home, which were consistent with her letter. First, she pointed to appellant’s alleged excessive drinking, which often led him to be “accusatory, argumentative, you know, all my faults, real and imagined for twenty years would be paraded out in front of me.” Second, she complained about appellant’s persistent “internet sexual contacts,” which she discovered beginning in 2002. They consisted of visits to pornographic websites, which she characterized as “just nasty,” as well as participation in “interactive chat rooms” and activity on dating websites.

In December 2002, appellee discovered that appellant had made a date with another couple “to set up a sexual encounter with them at a future date.... ” She contacted the other couple and arranged, ⁵⁰¹ without appellant’s knowledge, for the two couples to meet in order to confront appellant. According to appellee, appellant denied his online activity “[u]p until that point no matter what I said____” However, appellee noted that when the other woman, Marianne, “was standing in front of [appellant] with her boyfriend ... then he could no longer deny it because [the other woman] was there in person.” Appellee indicated that she believed appellant’s behavior had stopped for a time, but resumed in 2004. In addition, appellee suggested that appellant was “threatening in his manner.” But, she described only one incident of physical force, which occurred in January 2003, when appellant “threw a wallet” at appellee after a session of joint counseling. Appellant stated that on the afternoon of February 2, 2005, as he was driving home from his job as an auctioneer at the Baltimore City tow lot, appellee called his cellphone and asked him to pull the car over.

She then told him she was leaving. Claiming that he was “totally flabbergasted,” appellant recalled that he “was close to passing out” from the news. When he returned to the marital home, all of the living room furniture and appellee’s bedroom furniture were gone, as well as several boxes that he thought had been packed to go to an auction. He found appellee’s farewell letter “on the desk next to the computer.” Appellant admitted to “prowling” for women on the internet in order to “add a little spice to [his] sex life.” He explained that in 2002 he had a “severe prostatitis attack,” which rendered him “dysfunctional.” This condition prevented the parties from engaging in a physical relationship, and “stupidly” prompted him to visit online chat rooms, through which he conversed with a woman named Marianne.

He arranged to meet her at an area restaurant, and she brought her boyfriend, Ron. 4 Appellant testified: “Marianne’s demeanor did not appeal to me. She had tattoos. She was rough.... [A]nd ⁵⁰² I really wasn’t planning on having sex with another male.” So, appellant “bought them a bucket of clams and a couple of beers and left.” Appellant claimed that, a week later, appellee told him she was taking him out to dinner. When they arrived at the restaurant, the other couple was there, and appellee “threw her arms around Marianne as if they were ancient friends____” Appellant testified: “I spun on my heel and walked out of [the restaurant] and spent the next two hours sitting in the parking lot by myself.” Appellee remained in the restaurant with appellant’s car keys.

Mr. Flanagan insisted that he had no other internet encounter after that incident. He maintained that sometime thereafter appellee “helped [him] solve the [sexual dysfunction] problem.” He added: “And together I became functional again. I had no need to go on pornographic websites.” Further, appellant recalled that the parties participated jointly in counseling. Because the internet chat rooms and the one meeting had created a serious problem between the parties, appellant claimed he “specifically promised [appellee] that [he] would never do it again,” and never broke his promise.

In addition, appellant categorically denied ever striking appellee at any time during their marriage. He explained that the wallet incident was a result of appellee rummaging through his things, and he “threw it at her [saying] here, take the whole wallet and, and be done with it.” With regard to his alcohol consumption, appellant insisted that his drinking at home was limited to “a couple of cocktails” before or with dinner every other day or so, but that “after dinner I didn’t drink anything at all.” As for social drinking outside the home, he explained: [Appellee] had a very serious problem with her husband before me, we made some agreements that if I were to have drink number three, if I was out at any social engagement, if I had drink number three ... I would hand her voluntarily the car keys. There would be no fighting over who was going to drive home because she had had some pretty wild rides in the past with her [first] husband. ⁵⁰³ The evidence regarding the parties’ financial status was uncontested.

In addition to the items of marital property previously noted on the joint statement, appellee testified that she had a credit card with a balance of $5,351.48 and appellant had a credit card with a balance of $2,365. Appellee had a seven-year-old vehicle with 142,000 miles on it, while appellant had a 1996 Subaru station wagon with over 200,000 miles. Appellant retained his own bedroom set, and the remaining furniture and household items. From the date of separation until the trial, appellant continued to reside in the marital home and pay the monthly mortgage and home equity loan.

Appellee occupied an apartment at an initial rent of $750 per month, which increased at some point to $850 per month. During the separation, appellant paid $17,749.36 toward the first mortgage and a total of $2,328.72 on the home equity loan, all but $2.00 of which was on interest, as the loan was an “interest only loan.” Appellee testified that she left approximately $3,200 in the parties’ joint bank accounts. Appellant testified that he used the money to pay for the parties’ 2004 joint taxes, as well as the mortgages and the bill for their joint auto insurance policy. In closing arguments, appellee requested a 50/50 split in the equity of the home, with no contribution from her toward the mortgage expenses.

She also requested attorney’s fees of $5,000. Appellant asked the court not to divide the equity in the house equally, because he had made all the payments on the encumbrances during the separation. He requested a monetary award to offset the payments on the house that he had continued to make. Appellant’s counsel also suggested that “it would be fairer to just leave [the parties’ retirement accounts] as they are and that any adjustments that you make be made through the equity in the house.” The court stated, in part: We have a marriage of 21 years here and there have been good years.

Unfortunately the marriage has reached a point that it has dissolved and I will tell you that I will find ⁵⁰⁴ grounds for a[n] absolute divorce. That’s the easy part. The hard part will be to fairly determine what the proper dissolution of and division of assets should be. You have made it easy by making a determination as to the personal property, leaving only the issue of the real estate, the retirement benefits and the attorneys [sic] fees for the Court.

On February 27, 2007, the court issued a “Memorandum Opinion,” 5 in which it' found voluntary separation as the grounds for divorce. However, neither party had advanced the ground of voluntary separation. In relevant part, the Opinion also stated: III. Agreement of Parties In the parties’ Joint Statement Concerning Marital and Non-Marital property, the parties agreed that all issues with regard to all property other than the marital home have been resolved.

IY. Divorce Pursuant to Md.Code, Family Law Article § 7 — 103(a)(8), the testimony supports the grant of a divorce based on mutual and voluntary separation of more than 12 months. While the Wife physically deserted the marital home, the Husband allegedly constructively deserted her prior to her leaving. The undisputed testimony was that in February of 2005, [appellee] decided to leave the marital home.

She did so after years of her husband’s soliciting extramarital sexual relationships on the internet, his heavy drinking, and verbal abuse.... Neither party has attempted reconciliation. Insofar as the separation became mutual and voluntary and both parties indicate there is no reasonable expectation of reconciliation in their Complaint and Counterclaim, the Court grants an absolute divorce. (Emphasis added.) ⁵⁰⁵ V. Monetary Award Mrs. Flanagan requests that this Court grant her a monetary award.

Mr. Flanagan requests the same in his Counter-Complaint. As required by § 8-20B through § 8-205 of the Family Law Article, and the numerous appellate decisions which have followed the passage of the Marital Property Act, the Court must follow specific steps before granting a monetary award. First, the Court must identify what property is marital.... The Court must also value the marital property ... taking into account any marital debt incurred to acquire the property.

Finally, before making any award, the Court is mandated to consider each of those factors listed in § 8-205(b). With the exception of the family home, the parties have agreed on the identification and valuation of all marital property as indicated earlier. The chancellor recognized that the parties’ home was titled as tenants by the entirety. It found, according to the appraisal, that the value of the home was $165,000, with a mortgage of $91,237.28 and a home equity loan of $19,998.76. 6 There ⁵⁰⁶ fore, the court ruled that “the calculation of the marital property valuation will be the fair market value of Kerr Avenue at $165,000, less the outstanding mortgage liens of $91,123.78 and all other liens of $19,998.76, or $53,877.46.” (Emphasis in original.) The chancellor ordered the sale of the marital home, with “net proceeds of the sale ... to be divided equally between the parties.” Thereafter, the court turned to the “monetary award adjustment,” making findings with respect to the factors in Md.Code (2006 RepLVol., 2007 Supp.), § 8-205(b) of the Family Law Article (“F.L.”). 7 We pause to review the chancellor’s analysis of the eighth factor, as it is not discussed infra.

F.L. § 8 — 205(b)(8) requires the court to consider when and how the parties acquired an interest in any pension, retirement, profit sharing, or deferred compensation plan, as well as family use personal property and the parties’ marital home, and the effort expended by each party in acquiring such property. The court valued appellant’s retirement account at a total of $10,941.73, as compared to $2,310.74 for the total of appellee’s two accounts. It commented: “[Appellant’s one retirement account is worth more than four times as much as [appellee’s] accounts combined.” The court concluded: “Taking into consideration all of the above factors, this Court awards the Wife a monetary award of $30,000, which may be paid to her from the net proceeds of the sale of the Kerr Avenue home.” In addition, the chancellor awarded $2,500 in attorney’s fees to appellee. As noted, the court issued its “Divorce Order” on March 15, 2007.

Notably, it did not specify the grounds for divorce. It said, in part: ⁵⁰⁷ ORDERED that [appellee] is granted an absolute divorce from [appellant], and its is further ORDERED that each party keep their own retirement accounts; and it is further ORDERED that [appellee] shall receive a monetary award in the amount of $30,000; and it is further ORDERED that [appellant] shall receive an award of contribution in the amount of $1,045.81; and it is further ORDERED that the property known as 311 Kerr Avenue, Denton, Maryland, shall be sold by a Trustee, to be named, and the net proceeds to be distributed according to the Memorandum Opinion ..., and it is further ORDERED that [appellant] shall pay $2,500 towards [appellee’s] legal fees.... On March 26, 2007, appellant filed a Motion to Revise or Amend the Judgment and for Clarification. The court denied the motion, without a hearing, on April 18, 2007.

Appellant noted this appeal on April 20, 2007. Then, on August 13, 2007, after appellant obtained an Irrevocable Line of Credit in the amount of $3,500, in lieu of a supersedeas bond, the circuit court stayed the previously ordered sale of the marital home pending the outcome of this appeal. We shall include additional facts in our discussion, as relevant to the issues.

II

DISCUSSION A. Grounds for Divorce Appellant contends that the chancellor erred in granting a divorce on the ground of voluntary separation, arguing: “This conclusion is not supported by the evidence, as the testimony of both parties and the one witness, as well as all of the pleadings, are silent on that issue, nor is granting a divorce on that ground sustainable as a matter of law.” He also contends that appellee was not entitled to a divorce on the grounds of constructive desertion, because appellee was not “fearful of physical violence,” nor had there ever been any such violence. ⁵⁰⁸ He asserts: “The element of threatened bodily harm is clearly the linchpin necessary to prove the marital relationship cannot be sustained. Without it, a divorce based on constructive desertion cannot be granted.” Appellee responds that appellant’s “argument on the grounds of divorce alleges mistakes in both fact and law.” She maintains that “there was ample evidence in the record to support the Chancellor’s findings,” because it was “undisputed that at the time of the hearing, the parties had been physically separated for more than twelve (12) months, and there was no reasonable expectation of reconciliation. At some point after the initial separation, the separation became mutual and voluntary.” She insists that “[t]he element[s] of mutuality and separation need not coincide at the inception of the separation.” Appellee explains: The fact that separation begins with the abandonment of one spouse by the other, or with one spouse merely resigned to the reality of the division, does not preclude a subsequent conversion of the disjunction into one that is voluntary____ Both parties’ failure to seek reconciliation, coupled with their living separate and apart, and their acknowledgment that there is no reasonable expectation of reconciliation establishes voluntary separation for the statutory period. Alternatively, appellee asserts: “Assuming arguendo that the Chancellor’s analysis of the mutual and voluntary separation was flawed, there was ample evidence in the record for the Chancellor to award Mrs. Flanagan a divorce on the grounds of constructive desertion.” Moreover, she argues that any error is “harmless,” asserting: Assuming arguendo that the Court made an error in granting the divorce on the grounds of mutual and voluntary separation, what difference does it make?

It doesn’t. Both of these parties want a divorce. The only aspect of this case that is affected by the circumstances that contributed to the estrangement of the parties is the marital award. The statutory factor that requires the Chancellor to consider the circumstances that contributed to the estrange ⁵⁰⁹ ment of the parties does not require a finding of constructive desertion as a prerequisite to ordering a marital award, it only requires the Chancellor to consider the circumstances of the separation.

For the reasons set forth in Part II of this Argument, the Chancellor’s findings of fact with respect to the circumstances that contributed to the estrangement of the parties was not clearly erroneous. Any error on the part of the court in mischaracterizing the grounds for divorce was harmless (i.e. Mr. Flanagan has not been harmed by a divorce on the grounds of mutual and voluntary separation given that the Chancellor could have granted the divorce on the ground of constructive desertion, which was entirely consistent with the Chancellor’s findings of fact). In Maryland, the permissible grounds for divorce are governed by statute.

Ledvinka v. Ledvinka, 154 Md.App. 420, 436 , 840 A.2d 173 (2003) (“[D]ivorce is a creature of statute and only the grounds enumerated in the statute will support a divorce decree.”). See also, e.g., Thomas v. Thomas, 294 Md. 605, 610 , 451 A.2d 1215 (1982); Foote v. Foote, 190 Md. 171, 176 , 57 A.2d 804 (1948). F.L. § 7-103(a) provides the permissible bases for an absolute divorce, which include the following: (2) desertion, if: (i) the desertion has continued for 12 months without interruption before the filing of the application for divorce; (ii) the desertion is deliberate and final; and (iii) there is no reasonable expectation of reconciliation; (3) voluntary separation, if: (i) the parties voluntarily have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce; and (ii) there is no reasonable expectation of reconciliation; ⁵¹⁰ * * * (5) 2-year separation, when the parties have lived separate and apart without cohabitation for 2 years without interruption before the filing of the application for divorce[.] As noted, appellee’s complaint alleged constructive desertion, while appellant alleged actual desertion in his counterclaim. In its Memorandum Opinion, the court awarded a divorce on the basis of “mutual and voluntary separation of more than 12 months.” It reasoned that, following appellee’s departure from the marital home on February 2, 2005, “[n]either party has attempted reconciliation.

Insofar as the separation became mutual and voluntary and both parties indicate there is no reasonable' expectation of reconciliation ... the Court grants an absolute divorce.” In its subsequent Divorce Order, the court did not specify any ground for the divorce. See Borne v. Borne, 33 Md.App. 578 , 581 & 588, 365 A.2d 359 (1976) (“When only one ground is alleged in a complaint, and a divorce is granted, it is unnecessary for the decree to state the ground. When more than one ground is alleged, however, it is desirable that the decree specify the ground upon which the divorce is granted. This is especially true for obvious reasons when one ground is culpatory and one is non-culpatory.”).

In regard to a voluntary separation, the evidence must establish that the parties were separated voluntarily for the requisite period. In Wallace v. Wallace, 290 Md. 265, 277 , 429 A.2d 232 (1981), the Court said: [T]he proof does not support the conclusion made by the chancellor that a mutual separation for twelve months prior to the filing of the complaint existed, for the evidence indicates that this durational requirement was not met. It appears that the acquiescence of the respondent was transformed into a mutual agreement of the parties, as the court found, sometime late in June, 1977, and as the amended bill was filed on June 6, 1978 (assuming that this, and not the date the original complaint was filed, is the operative date with which we are concerned), the requisite twelve month ⁵¹¹ separation prior to the filing of the bill cannot be said to have transpired. We addressed the elements of voluntary separation in Aronson v. Aronson, 115 Md.App. 78 , 691 A.2d 785 , cert. denied, 346 Md. 371 , 697 A.2d 111 (1997).

There, the wife sought a divorce from her husband “on the grounds of adultery and a two year separation.” Id. at 81, 691 A.2d 785 . We set forth the following facts, id. at 81-82 , 691 A.2d 785 : When the trial commenced ... on those grounds, the parties had only lived separate and apart for twenty-two and a half months. Moreover, the wife had condoned the adultery in issue. Thus, the two year separation ground was not quite ripe, and there was reason to believe that the adultery would not withstand a challenge.

Under these circumstances, it is particularly noteworthy that the parties had not agreed in advance of trial to an amendment of the complaint on the ground of a one year voluntary separation. Further, their separation agreement did not suggest that both parties wanted to end the marriage. Nevertheless, with only a few weeks remaining to achieve the unassailable two year ground, trial commenced in the Circuit Court for Baltimore County. At trial, over the husband’s vigorous objection, the court permitted appellee to amend her complaint to include a claim for divorce based on a one year voluntary separation.

Ultimately, the court granted appellee an absolute divorce on that ground. On appeal, the husband challenged the grounds for divorce. We began our analysis by reviewing the Court of Appeals’s decision in Wallace, 290 Md. 265 , 429 A.2d 232 . We said, 115 Md.App. at 96-97 , 691 A.2d 785 (some citations omitted; italics in Aronson ; boldface added): What the [Wallace] Court said is pertinent here: In order to establish the existence of the twelve month voluntary separation ground for divorce a vinculo ... three elements must be shown: (i) an express or implied agreement to separate, accompanied by a mutual intent ⁵¹² not to resume the marriage relationship; (ii) voluntarily living separate and apart without cohabitation for twelve months prior to the filing of the bill of complaint; and (iii) that the separation is beyond any reasonable hope of reconciliation.

Id. at 275 [ 429 A.2d 232 ] (emphasis added); see also Smith v. Smith, 257 Md. 263, 266 [ 262 A.2d 762 ] (1970). Indeed, the Court of Appeals has consistently held that voluntariness requires an agreement to live separate and apart, coupled with a common intent to terminate the marriage. See Sullivan v. Sullivan, 234 Md. 67, 72 [ 197 A.2d 910 ] (1964); Foote v. Foote, 190 Md. 171, 179 [ 57 A.2d 804 ] (1948).... See also John F. Fader, II & Richard J. Gilbert, Maryland Family Law, § 3-5(d), at 83 (2d ed.1995)____ In contrast, “[acquiescence in or assent to what one cannot prevent does not amount to a voluntary agreement to separate.” Fader & Gilbert, supra, § 3-5(d), at 83; see also Lloyd v. Lloyd, 204 Md. 352, 359 [ 104 A.2d 595 ] (1954) (“Even the realization by both husband and wife that their separation is final ... does not of itself establish an agreement that they shall live apart.”).

Nevertheless, the elements of mutuality and separation need not coincide at the inception of the separation. Indeed, an involuntary separation may later be transformed into a voluntary separation. Wallace, 290 Md. at 277 [ 429 A.2d 232 ]; see also Fader & Gilbert, supra, § 3-5(d), at 83. Thus, a separation that begins as a desertion may later achieve “voluntary” status.

We noted in Aronson that proof of a mutually voluntary separation was lacking. We explained, id. at 103 , 691 A.2d 785 : [A]ppellee never affirmatively represented that both parties wanted to end the marriage. Instead, in response to a question from her attorney about whether appellant objected to ending the marriage, she merely said: “We really never talked about it, but he never objected.” Apart from testimony that appellant agreed to the separation, she failed to describe statements or conduct by appellant that evinced ⁵¹³ his intent to end the marriage. Moreover, appellee’s assertion that the parties agreed that she would move out of the marital home does not distinguish between an agreement to separate, which appellant concedes, and an agreement to separate for the particular purpose of terminating the relationship, which appellant contests.

In concluding that vacatur of the divorce decree was required, we explained, id. at 97-98 , 691 A.2d 785 (some citations omitted; italics added in Aronson ; boldface added): In sum, the cases teach that a voluntary separation must be accompanied by a mutual intent to terminate the marriage; mutuality of intent is a component of voluntariness. Voluntary, “ ‘when used in reference to a common act of two or more persons affecting their common relationship ... means that they acted in willing concert in the doing of the act.’ ” In order to be awarded a decree of divorce for voluntary separation, the plaintiff must establish that the parties entered into a mutual and voluntary agreement to separate and not to resume the marital relationship. The separation for the purposes of the statute commences on the date that this agreement occurs even if the parties have separated prior to reaching this agreement. Bernard A. Raum, Maryland Domestic Relations Law § 4:16 (1996) (emphasis added; footnotes omitted).

Appellee’s position is at odds with Wallace and Aronson ; there was no evidence below of an agreement to separate that existed for the requisite duration. Specifically, no evidence was presented as to whether or when appellant affirmatively agreed to terminate the relationship. When appellee left the marital home in February 2005, there was no evidence that the parties had a mutual agreement to separate with the intent to end the marriage. To the contrary, the evidence clearly showed that it was a unilateral decision of appellee.

Moreover, as we made clear in Aronson , one party’s acquiescence to what he cannot prevent does not constitute a volun ⁵¹⁴ tary agreement to separate. Nor was there evidence of such an agreement by April 11, 2005, i.e., one year before appellee filed her Complaint for Absolute Divorce. See F.L. § 7-103(a)(3)(voluntary separation is ground for divorce if “the parties voluntarily have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce ”) (emphasis added). See also, e.g., Wallace, 290 Md. at 277 , 429 A.2d 232 (“[T]he requisite twelve month separation prior to the filing of the bill cannot be said to have transpired.”).

Appellee’s reliance on the filing by appellant of a Counter-Complaint for Absolute Divorce is also unavailing. That filing, on May 17, 2006, did not demonstrate that appellant agreed to terminate the nuptial bond at the time that is relevant, i.e., at least one year prior to April 11, 2006 — or assuming that appellant’s Counter-Complaint established a new date by which the separation could be measured, one year prior to May 17, 2006. See Wallace, 290 Md. at 277 , 429 A.2d 232 (assuming without deciding that the date of the amended complaint was relevant date for purposes of voluntary separation). Moreover, appellant’s Counter-Complaint based on desertion did not establish his agreement to a no-fault divorce.

Voluntary separation is a no-fault ground, while appellant counterclaimed based on desertion, which is a fault-based ground. Cf. Wagner v. Wagner, 109 Md.App. 1, 12 , 674 A.2d 1 (“The trial court subsequently granted Mr. Wagner a divorce ... on grounds of desertion, having found Ms. Wagner to be at fault for the demise of the marriage.”), cert. denied, 343 Md. 334 , 681 A.2d 69 (1996); Lemley v. Lemley, 102 Md.App. 266, 281 , 649 A.2d 1119 (1994) (“With the introduction of ‘no-fault’ divorce based on a voluntary one-year separation ... or an involuntary separation ... the issue of constructive desertion as grounds for divorce rarely reaches this Court.”). As we recognized in Aronson , the fact that a party seeks to end the marriage on the basis of fault does not establish the party’s ⁵¹⁵ acquiescence to a no-fault termination.

We explained, id. at 98 , 691 A.2d 785 (emphasis added; citation omitted): The essential difference, apart from time, between the one year separation and the two year separation embodied in F.L. § 7-103(a)(5) is that the one year separation must be “founded upon a ground which is consensual and not culpatory, manifesting an intention to permit the marriage relationship to be terminated in law, as well as in fact, without regard to fault.” See also Matysek v. Matysek, 212 Md. 44, 48-50 , 128 A.2d 627 (1957) (suit by spouse seeking fault-based divorce may militate against finding of voluntary agreement to separate in later suit). Accordingly, we agree with appellant that the court erred in granting a divorce on the ground of voluntary separation. Nevertheless, we are equally convinced that any error was harmless. We explain.

In Flores v. Bell, 398 Md. 27, 33-34 , 919 A.2d 716 (2007), the Court of Appeals recently summarized the harmless error doctrine as it applies to civil cases: It has long been the policy in this State that this Court will not reverse a lower court judgment if the error is harm less. Greenbriar v. Brooks, 387 Md. 683, 740 [ 878 A.2d 528 ] (2005); Crane v. Dunn, 382 Md. 83, 91 [ 854 A.2d 1180 ] (2004). The burden is on the complaining party to show prejudice as well as error. [8] Greenbriar, 387 Md. at 740 [ 878 A.2d 528 ]; Crane, 382 Md. at 91 [ 854 A.2d 1180 ]; Beahm v. Shortall, 279 Md. 321, 330 [ 368 A.2d 1005 ] (1977). Precise standards for determining prejudice have not been established and depend upon the facts of each individual case.

Fry v. Carter, 375 Md. 341, 356 , 825 A.2d 1042 (2003); see also State Deposit v. Billman, 321 Md. 3,17 , 580 A.2d 1044 (1990) (reiterating that appellate court balances ⁵¹⁶ the probability of prejudice from the face of the extraneous matter with the circumstances of the particular case). Prejudice can be demonstrated by showing that the error was likely to have affected the verdict below; an error that does not affect the outcome of the case is harmless error. Crane, 382 Md. at 91 , 854 A.2d 1180 ; Beahm, 279 Md. at 331 , 368 A.2d 1005 . We have also found reversible error when the prejudice was substantial.

Fry, 375 Md. at 356 , 825 A.2d 1042 . The focus of our inquiry is on the probability, not the possibility, of prejudice. Crane, 382 Md. at 91 , 854 A.2d 1180 ; Harford Sands, Inc. v. Groft, 320 Md. 136, 148 , 577 A.2d 7 (1990). We discussed the standard of review in civil cases in Crane, 382 Md. 83 , 854 A.2d 1180 , noting as follows: “Prejudice will be found if a showing is made that the error was likely to have affected the verdict below. ‘It is not the possibility, but the probability, of prejudice which is the object of the appellate inquiry.’ ...

Substantial prejudice must be shown. To justify the reversal, an error below must have been ‘... both manifestly wrong and substantially injurious.’ ” Id. at 91-92 , 854 A.2d 1180 (citations omitted). The harmless error doctrine is perhaps invoked more often in connection with a procedural error than with a substantive error. But, the doctrine applies with equal force to legal errors, so long as no substantial injury to the appellant results from the error.

See, e.g., Storetrax.com, Inc. v. Gurland, 397 Md. 37, 51-53 , 915 A.2d 991 (2007) (in review of lower court’s choice of law analysis, holding that where “we cannot discern the difference, if any, in the outcome of this case whether the laws of Maryland or Delaware are applied to the facts of the present case ... any technical error on the part of the Circuit Court in its analysis of choice of law principles was harmless”). The court did not specify a ground in the Divorce Order. Although the Memorandum Opinion found a voluntary separation, we discern no substantial injury that accrued to appellant as a result of that finding, rather than a finding of desertion or ⁵¹⁷ constructive desertion. As appellee underscores, appellant clearly wanted a divorce, as evidenced by his counter-complaint, and he obtained the relief he sought, i.e., an absolute divorce.

Moreover, there was an adequate factual basis in the record for an absolute divorce on the grounds of either actual or constructive desertion. In Ricketts v. Ricketts, 393 Md. 479, 487-88 , 903 A.2d 857 (2006), the Court explained: Desertion may be constructive or actual. See, e.g., Walker v. Walker, 209 Md. 428, 431 , 121 A.2d 195 (1956). We have defined actual desertion as “the voluntary separation of one of the married parties from the other, or the refusal to renew suspended cohabitation, without justification either in the consent or the wrongful conduct of the other party ... [Furthermore,] the separation and intention to abandon must concur, and desertion does not exist without the presence of both.

The two need not begin at the same time, but desertion begins whenever to either one the other is added.” Boyd v. Boyd, 177 Md. 687, 688 , 11 A.2d 461 (1940) (citations omitted). Here, the record supported a finding of constructive desertion, the ground alleged by appellee. 9 Moreover, the court made factual findings that were consistent with constructive desertion. We explained the showing required for a divorce based on the basis of constructive desertion in Lemley, supra, 102 Md.App. at 281 , 649 A.2d 1119 (emphasis in original; internal citations omitted): The question, as framed by the Court of Appeals, is whether [one spouse] has engaged in “such conduct as would make a continuance of the marital relationship inconsistent with the ⁵¹⁸ health, self-respect and reasonable comfort of the other.” There must be “a pattern of persistent conduct which is detrimental to the safety or health of the complaining spouse, or so demeaning to his or her self-respect as to be intolerable.” As the italicized language suggests, it is not necessary in every case to show that the safety or physical health of a spouse is threatened; a grave threat to a spouse’s self-respect alone may be sufficient. Accord Ricketts, 393 Md. at 488-89 , 903 A.2d 857 .

See also Carpenter v. Carpenter, 257 Md. 218, 224-25 , 262 A.2d 564 (1970); Stewart v. Stewart, 256 Md. 272, 278-82 , 260 A.2d 71 (1969). The findings of the court below were tantamount to a finding of constructive desertion, and were supported by the record. Notably, the court below found that appellee “decided to leave the marital home ... after years of her husband’s soliciting extramarital sexual relationships on the internet, his heavy drinking and verbal abuse.” Moreover, as appellee points out, “only slight corroboration is required,” Kelsey v. Kelsey, 186 Md. 324, 328 , 46 A.2d 627 (1946), and it may “ ‘come from the other spouse.’ ” Colburn v. Colburn, 15 Md.App. 503, 512 , 292 A.2d 121 (1972) (citation omitted). Among other things, appellant admitted to having prowled on the internet to “jazz up [his] sex life.” In sum, because the court made findings to support the award of divorce based on constructive desertion, which findings were not clearly erroneous, we regard as harmless the court’s error in its Memorandum Opinion, in which it found a voluntary separation.

B. Monetary Award We turn to appellant’s challenge to the monetary award. In connection with divorce proceedings, the Marital Property Act, codified in Title 8, Subtitle 2 of the Family Law Article, provides for the equitable distribution of marital property. Marital property is defined as “property, however titled, acquired by 1 or both parties during the marriage.” F.L. § 8- ⁵¹⁹ 201(e)(1). Under F.L. § 8-201(e)(3), marital property does not include the following categories of property: “[M]arital 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.

(Emphasis added.) When the division of marital property by title is inequitable, the chancellor may adjust the equities by granting a monetary award. See Long v. Long, 129 Md.App. 554, 579 , 743 A.2d 281 (2000) (recognizing that the judge has “all the discretion and flexibility he needs to reach a truly equitable outcome.”). In Ward v. Ward, 52 Md.App. 336, 339-40, 449 A.2d 443 (1982), we elucidated the concept of the monetary award, stating: The monetary award is ... an addition to and not a substitution for a legal division of the property accumulated during marriage, according to title. It is “intended to compensate a spouse who holds title to less than an equitable portion” of that property....

What triggers operation of the statute is the claim that a division of the parties’ property according to its title would create an inequity which would be overcome through a monetary award. (Internal citation and emphasis omitted). In order to determine whether to grant a monetary award, the chancellor must follow a three-step procedure. See F.L. §§ 8-203, 8-204, 8-205; Alston v. Alston, 331 Md. 496, 499-500 , 629 A.2d 70 (1993); Gordon v. Gordon, supra, 174 Md.App. 583, 623-24 , 923 A.2d 149 (2007); Collins v. Collins, 144 Md.App. 395, 409 , 798 A.2d 1155 (2002).

First, for each disputed item of property, the chancellor must determine whether it is marital or non-marital. F.L. §§ 8 — 201(e)(1); 8-203. Second, the chancellor must determine the value of all marital property. F.L. § 8-204.

Third, the chancellor must decide if the division of marital property according to title ⁵²⁰ would be unfair. If so, the chancellor may make a monetary award to rectify any inequity “created by the way in which property acquired during marriage happened to be titled.” Doser v. Doser, 106 Md.App. 329, 349 , 664 A.2d 453 (1995). See F.L. § 8-205(a); Long, 129 Md.App. at 578-79 , 743 A.2d 281 . 10 In regard to a monetary award, the chancellor is required to consider the statutory factors contained in F.L. § 8-205(b). See Ware v. Ware, 131 Md.App. 207, 213-14 , 748 A.2d 1031 (2000); Doser, 106 Md.App. at 350 , 664 A.2d 453 .

F.L. § 8-205(b) states: (b) Factors in determining amount and method of payment or terms of transfer. — The court shall determine the amount and the method of payment of a monetary award, or the terms of the transfer of the interest in property described in subsection (a)(2) of this section, or both, after considering each of the following factors: (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 subsection was acquired, including the effort expended by each party in ⁵²¹ 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. Ordinarily, it is a question of fact as to whether all or a portion of an asset is marital or non-marital property. The value of each item of marital property is also a question of fact. We review the chancellor’s factual findings under the clearly erroneous standard.

See Rule 8 — 131(c); Noffsinger v. Noffsinger, 95 Md.App. 265, 285 , 620 A.2d 415 , cert. denied, 331 Md. 197 , 627 A.2d 539 (1993). An 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 the witnesses.” Md. Rule 8-131(c). In contrast, we review the chancellor’s determination of questions of law under a “de novo” standard of review. Shenk v. Shenk, 159 Md.App. 548, 554 , 860 A.2d 408 (2004).

Moreover, the ultimate decision regarding whether to grant a monetary award, and the amount of such an award, is subject to review for abuse of discretion. Alston, 331 Md. at 504 , 629 A.2d 70 ; Gordon, 174 Md.App. at 626 , 923 A.2d 149 ; Malin v. Mininberg, 153 Md.App. 358, 430 , 837 A.2d 178 (2003); Chimes v. Michael, 131 Md.App. 271, 282-83 , 748 A.2d 1065 , cert. denied, 359 Md. 334 , 753 A.2d 1031 (2000). Under that standard, “we may not substitute our judgment for that of the fact finder, even if we might have reached a different result .... ” Innerbichler v. Innerbichler, 132 Md.App. 207, 230 , ⁵²² 752 A.2d 291 , cert. denied, 361 Md. 232 , 760 A.2d 1107 (2000). 11 Although our review for abuse of discretion is deferential, “a trial court must exercise its discretion in accordance with correct legal standards.” Alston, 331 Md. at 504 , 629 A.2d 70 . Appellant faults the chancellor’s bottom line decision to make a monetary award of $30,000 to appellee.

In addition, he challenges several of the circuit court’s antecedent determinations, which we shall discuss, infra. After reviewing the relevant factors drawn from F.L. § 8-205(b), the chancellor concluded, in a single sentence, that $30,000 was an appropriate award. As noted, it said: “Taking into consideration all of the above factors, this Court awards the Wife a monetary award of $30,000, which may be paid to her from the net proceeds of the sale of the Kerr Avenue home.” Because the circuit court did not adequately explain the basis for its monetary award, and because the award resulted in appellee’s entitlement to almost 90% of the value of the marital property, we shall vacate the award and remand for further proceedings. We explain.

Appellant contends that the chancellor’s award of $30,000 to appellee exceeded his expected share of the proceeds of the marital home ($26,938.73), and thus gave appellee “the entire value of the marital property.” He also maintains that “the order of ‘contribution’ awarded to [appellant] appears to be a second marital award in his favor, in the form of a Crawford credit not referenced as such, though there can be only one marital award per case.” ⁵²³ Further, appellant argues that the award “is not supported by the facts in the record, but the rest of the relevant sentence in the Memorandum Opinion is even more indicative of the confused rationale employed.” According to appellant, “[t]his pronouncement makes no rational sense, the Court having already ordered that the proceeds were to be divided equally, stating that those proceeds would be $26,938.73 each.” Appellant continues: That figure [of $26,938.73] is an outer-limits figure, in that it does not reflect the potential costs of sale, and the receipt of $26,938.73 each would be ... the best case scenario. Of course, it is arithmetically impossible to pay $30,000 out of $26,938.73, and as the Court has already ordered each party to keep his or her retirement account, as well as failed to consider the existence or value of any other marital property, this pronouncement is clearly erroneous. Appellee rejects appellant’s assertion that the chancellor’s statement that the $30,000 could be paid “from the net proceeds of the sale of the Kerr Avenue home” was incompatible with the fact that each party’s share of the proceeds would be less than $ 30,000. She argues,: [T]he Chancellor is not required to dictate to [appellant] exactly how he is to pay the entire marital award.

Clearly, [appellant] will need to pay [appellee] $3,061.27 in excess of the proceeds from the sale of the marital home. Whether [appellant] chooses to withdraw money from his retirement account, borrow the funds, or use funds that he currently has is his choice. The reference to the net proceeds of the sale related more to the timing of when the marital award should be paid (i.e. at the time the house is sold) as opposed to the source for one hundred percent of the funds. In addition, appellee disputes appellant’s argument that the award of $30,000 to her exceeded the value of the marital property.

She notes that appellant’s retirement account was valued at “$10,941.73, which was more than four times that of [appellee’s] retirement accounts.” “Clearly,” she argues, “the marital award of $30,000 does not exceed [appellant’s] share of ⁵²⁴ the net proceeds and his retirement accounts, to say nothing of the vehicle, personal property and household items that he retained.” Finally, she argues that appellant mischaracterized the award of contribution as a second monetary award. She explains: The award of contribution is based on equitable principles having no relationship to the Marital Property Act. Kline v. Kline, 85 Md.App. 28, 47 [ 581 A.2d 1300 ] (1990), cert. denied, 322 Md. 240 [ 587 A.2d 246 ] (1991). Instead, contribution is based on the law of tenancy, including, as in this case, tenancies by the entireties.

Colburn v. Colburn, 265 Md. 468 [ 290 A.2d 480 ] (1972). The award of contribution is not a matter of right and is within the sound discretion of the trial court. Keys v. Keys, 93 Md.App. 677, 681 [ 614 A.2d 975 ] (1992). Although under the Marital Property Act, the Chancellor has the ability to consider all factors that give rise to principles of equity, including contribution, contribution can be awarded even if