James v. James

DAVIS, Judge. This appeal is from a pendente lite alimony order from the Circuit Court for Baltimore County (Kahl, J.). On September 5, 1991 Diana G. James (appellant) filed a complaint for absolute divorce against Jon L. James (appellee). On September 23, 1991 appellee filed a counter-complaint for limited divorce.

On February 3, 1992 appellee requested and was granted a master’s hearing on his request for temporary alimony and attorney’s fees. After the presentation of testimony and evidence by both parties, the master issued a report in which he recommended an award of temporary alimony to appellee of $4,500 per month and $5,000 in counsel fees. ⁴⁴² On May 15, 1992 appellee filed exceptions to the written report and recommendation of the master, and on June 11, 1992 he submitted a memorandum in support of the exceptions and requested a hearing. The trial court granted appellee’s request for a hearing. After conducting a hearing on the exceptions, the court issued a written opinion awarding appellee temporary alimony in the amount of $8,000 per month.

Judgment in accordance with that opinion was entered on August 11,1992. On August 21, appellant filed a motion to Alter or Amend the trial court’s August 11,1992 order. The trial court denied the motion, and appellant noted a timely appeal, in which she presents the following issues for our review: Whether the trial court erred in considering educational expenses when calculating an award of temporary alimony. Whether, by reason of the proposed educational program and the demonstrated likelihood it would increase appellee’s earning capacity, the trial court erred in granting an award of alimony pendente lite based, in part, on projected educational expenses that must be shown to increase earning capacity of dependent spouse.

Whether the trial court erred in not dismissing exceptions as vague and inadequate. FACTS Master’s Report and Recommendations The parties were married on October 21, 1974; they separated on May 2, 1990. No children were born during the course of the marriage. Prior to the marriage, appellee earned a Bachelor of Arts degree in Sociology and East Asian Studies.

Appellee then served with U.S. Army Intelligence from 1965 to 1968, thirteen months of which he was in Viet Nam. Thereafter, appellee returned to the United States to teach at the U.S. Military Intelligence School at Fort Holabird. In 1971 appellee began graduate school at Johns Hopkins University, where ⁴⁴³ he met appellant. Appellee was last employed from 1970 to 1973 as an administrator for a university study, a position for which he received graduate credits.

Appellee received a Masters degree in Social Relations (Sociology) from Johns Hopkins University in 1983. Neither party was formally employed during the course of the marriage. In 1983 appellee studied securities management for one year at the Advest Company. Appellee testified that he kept extensive records of investment trends.

He also testified that, during the course of the marriage, he worked on the couple’s personal finances and that essentially he was a homemaker. He claimed that he handled all the finances; wrote checks; managed investment relations; “was liaison” with lawyers, trustees, and banks; and was responsible for the maintenance and negotiated the purchase of the residence recently sold by appellant. Essentially, appellee managed appellant’s money, to the extent that the trust arrangements made by her deceased father did not already provide for such management. Appellee also had some training in family mediation, having received a training certificate in this field after studying at the Lemmon Institute in San Francisco and continued with advanced training courses in Maryland.

In 1989 appellee began training as a pro bono family mediator for the Baltimore County Divorce Mediation Project. Appellant worked for one week in a health restaurant approximately ten years ago. The parties reported an income in excess of $500,000 on the last joint tax return they filed in 1991. The income was generated by trusts established by appellant’s late father.

For the year 1990, the couple reported an adjusted gross income of $548,572. Appellant testified that she receives income from trusts and investments. According to an expense sheet filed with the master, appellant had an income of $43,000 per month and expenses totalling $28,308. Appellant’s net worth is estimated at $15,000,000, including $7,000,000 from a July 1992 trust distribution.

The couple owned a home in Baltimore County, which appellant had recently sold for $484,-000. The parties had several telephone-equipped automobiles. ⁴⁴⁴ During their marriage, the parties spent up to $20,000 per year on travel. Appellee based his expense sheet on past expenditures while residing with appellant. His expenses included traveling, phone, cars, and the educational costs of pursuing an advanced degree.

Appellee wants to attend graduate school to obtain a doctorate in Psychology in order to pursue his mediation career. He was accepted into a doctoral program in Clinical Psychology at Duquesne University in 1992. The cost of tuition and fees at Duquesne University for the advanced degree is $10,760 per year. Admittedly, appellant left appellee in May 1990.

Appellant testified that she now lives with a boyfriend in a house she had purchased for $675,000, now estimated to be valued at $1,000,-000. After the couple’s separation, appellee continued to maintain the marital residence and pay bills from the couple’s joint bank accounts, spending approximately $200,000. The residence was subsequently sold for $484,000. Appellant then paid three months rent for appellee at an apartment complex.

The master determined that appellee’s minimal earning capacity was approximately $25,000 to $30,000 per year and concluded that additional education expenses for appellee were not appropriate. The master recommended awarding appellee $4,500 monthly in pendente lite alimony. Appellee filed exceptions to the master’s report and recommendations, challenging the amount of the alimony. Chancellor’s Hearing On July 14, 1992 the trial court held a hearing on the exceptions.

In a written opinion, the chancellor upheld the master’s fact-finding: (1) appellant has the ability to contribute to the temporary support of her husband, (2) neither party was employed during the course of the marriage, and (3) appellee is able to be employed. The chancellor, citing Maynard v. Maynard, 42 Md.App. 47 , 399 A.2d 900 (1979), recognized that the purpose of alimony pendente lite was based on the need of the economically dependent spouse. The chancel ⁴⁴⁵ lor stated, in passing, that the master’s recommendations regarding appellee’s pursuit of his doctoral degree was only a recommendation and was not binding on the chancellor. Applying his independent judgment, the chancellor concluded that, while some expenses were excessive, others were within reason in light of the standard of living to which the dependent spouse (appellee) was accustomed.

With regard to appellee’s proposed educational program, the chancellor opined: The Defendant has expressed his intention and desire to matriculate into graduate study at Duquesne University and has projected many of his expenses to reflect that plan. He wants, accordingly, to defer employment decisions pending-completion of his doctoral program. Although he is theoretically employable now, he should be able to increase the likelihood of gainful employment if he is permitted to enhance his credentials as he anticipates. His plans may, too, ultimately benefit the Plaintiff, whose exposure to rehabilitative and/or permanent alimony liability potential is considerable.

The Court concludes that Defendant should receive, for his living expense, education and suit money, the sum of eight thousand dollars ($8,000.00) per month as alimony pendente lite. As previously mentioned, Master Dugan has recommended that the Defendant abandon his pursuit of a doctoral degree and instead devote himself to employment. This recommendation can only be a recommendation, however, and is not susceptible of being embodied in an order of Court. Moreover, the Court will reject it, for reasons already set forth.

The chancellor thus included the appellee’s current and future educational projections in his $8,000 per month alimony pendente lite award. ⁴⁴⁶ LEGAL ANALYSIS Vagueness of Exceptions We shall consider together the first two issues raised by appellant; however, we first address the last contention presented. She asseverates that the chancellor should have dismissed appellee’s exceptions to the master’s report and recommendations for vagueness. Appellant relies upon Md. Rule S74A.d, which provides: Within five days after recommendations are placed on the record or served pursuant to section c of this Rule, a party may file exceptions with the clerk. Within that period or within three days after service of the first exceptions, whichever is later, any other party may file exceptions.

Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise. [Emphasis added.] Citing Bris Realty Company v. Phoenix Savings and Loan Ass’n, Inc., 238 Md. 84 , 208 A.2d 68 (1955), appellant asserts that appellee’s exceptions to the master’s report and recommendations “were general in form and failed to point out any finding of fact not supported by the testimony before the master, or any law misapplied by him.” Appellant summarizes her contention by claiming that “none of the numbered exceptions contained in Jon’s pleading allege error on the part of the master.” She claims that the exceptions simply observe a fact regarding the parties’ marriage and separation or states in “a matter of fact fashion” what the master found at the hearing. While pointing out that the chancellor observed that “most of the specific exceptions do not allege error of any kind on the part of the master,” appellant concedes that the court ultimately concluded that it was “possible to glean” from the exceptions appellee’s belief that the master erred in finding that appellee could earn at least $25,000 a year and in finding that his needs would be met by the award of an additional $4,500 a month. ⁴⁴⁷ Appellee counters that appellant’s argument is “almost identical to” the argument made by the husband in Best v. Best, 93 Md.App. 644 , 613 A.2d 1043 (1992), suggesting that we rejected a similar argument in that case. Best more specifically focused on Md.Rule 2-541(i), which provides: Hearing on Exceptions. — The Court may decide exceptions without a hearing, unless a hearing is requested with the exceptions or by an opposing party within five days after service of the exceptions.

The exceptions shall be decided on the evidence presented to the master unless: (1) the excepting party sets forth with particularity the additional evidence to be offered and the reasons why the evidence was not offered before the master, and (2) the court determines that the additional evidence should be considered. If additional evidence is to be considered, the court may remand the matter to the master to hear the additional evidence and to make appropriate findings or conclusions, or the court may hear and consider the additional evidence or conduct a de novo hearing. [Emphasis supplied.] Our discussion in Best devolved upon the question of whether the chancellor was empowered to conduct a de novo hearing in a case where the excepting party failed to designate evidence that should be considered in addition to that already presented to the master. We concluded that the chancellor had absolute discretion to order a de novo hearing if, under any circumstances, the court was dissatisfied with the master’s fact-finding or the evidentiary record before the court. Best, 93 Md.App. at 650 , 613 A.2d 1043 .

The issue presented on this appeal is simply whether the alleged failure of the excepting party to indicate wherein the master committed error requires the chancellor to overrule the exceptions. As appellee points out, Bris Realty involved claims against Phoenix Savings and Loan, which had gone into conservator-ship and then into reorganization under the jurisdiction of the Circuit Court for Baltimore City. Disputed claims were sub ⁴⁴⁸ mitted to a special master in chancery whose appointment required him to take testimony and make “a final determination, subject to further order of this Court____” Bris Realty excepted to certain of the final determinations by the master. Since Bris Realty had failed to point out the particular errors objected to, the court ruled on the general exceptions before it, refusing to permit Bris Realty to present testimony before the court at a de novo hearing.

The Court of Appeals held that exceptions to a report of an auditor and master will not be sustained unless his findings of fact were clearly erroneous or unless the master misapplied the law to his findings of fact. Reduced to its simplest terms, what the Court was saying in Bris Realty was that the chancellor was not obliged to hold a hearing on every phase of the litigation that the exceptant found to be unacceptable. As the Court observed in Bris, 238 Md. at 89 , 208 A.2d 68 : “One of the purposes of seeking the advice and recommendations of an auditor and master is to conserve the time of the court. If claimants had the right to offer new or additional testimony before the court, not only would .there be no saving of the court’s time but, perhaps, the whole structure of the auditor’s and master’s report would be worthless, thus requiring a remand and revision.” In the case sub judice, the chancellor, in fact, conducted a hearing on the exceptions.

Thus, unlike Bris , there was no refusal to conduct a hearing because of the court’s inability to fathom the alleged error. Moreover, Rule S74A.d contains the proviso that exceptions are waived for lack of specificity “unless the court finds that justice requires otherwise.” This language clearly authorizes the chancellor, where he deems justice requires, to entertain the exceptions. While we agree with appellant that the exceptions essentially contain a recounting of what occurred before the master as well as statements of fact regarding the history of the case, appellant acknowledges that exception number nine most closely approximates an affirmative allegation of error. Number nine states: ⁴⁴⁹ That the defendant, Jon L. James, respectfully suggests that the above stated minuscule amount of alimony does not in any way reflect his needs which were adequately demonstrated in his expense sheets and does not properly take into consideration the ability to pay demonstrated by Diana Glass James.

Significantly, the chancellor apparently agreed with appellee in his characterization of the alimony as “minuscule” since, based on the exceptions presented, the chancellor increased the alimony pendente lite from $4,500 to $8,000 per month. We believe that exception number nine was specific enough to afford appellant sufficient notice to respond and provided the degree of particularity required by law to allow the chancellor to review the findings of the master. Alimony Pendente Lite Appellant next argues that the trial court erred in considering appellee’s educational projections in making a pendente lite or temporary alimony award. Appellant argues that an educational expense is more appropriate for consideration in awarding permanent or rehabilitative alimony.

Because we find that the chancellor erred in considering the educational expenses when calculating his pendente lite alimony award, we shall vacate the order and remand the case for further proceedings consistent with this opinion. The issue before us is whether inclusion of a dependent spouse’s projected future educational expenses are proper in a pendente lite alimony award. We hold that, under the facts of this case, the award of educational expenses to appellee did not comport with the recognized purposes for alimony pendente lite. Maryland Fam.L.Code Ann. § 11-102 provides: In a proceeding for divorce, alimony, or annulment of marriage, the court may award alimony pendente lite to either party.

When interpreting this or any other statutory provision, we first look to its text. A basic tenant of statutory construction ⁴⁵⁰ requires that “statutes are construed according to their plain and ordinary meaning when those words are not ambiguous.” County Council for Montgomery County v. Supervisor of Assessments of Montgomery County, 274 Md. 116, 120 , 332 A.2d 897 (1975). Alimony pendente lite is defined as “an allowance made pending a suit for divorce or separate maintenance, including a reasonable allowance for preparation of the suit as well as for support.” Maynard v. Maynard, 42 Md.App. 47, 49 , 399 A.2d 900 (1979), citing Black’s Law Dictionary (4th ed., 1951). An award of alimony pendente lite is a monetary payment pending the outcome of litigation that has been instituted but that has not been concluded.

Id. Generally, temporary spousal support is based primarily on considerations of the reasonable needs of the recipient spouse, balanced against the other spouse’s ability to pay. Maynard, 42 Md.App. at 51 , 399 A.2d 900 {pendente lite alimony to maintain status quo and allow a spouse to prosecute or defend the action); Gonzalez v. Gonzalez, 446 So.2d 237 (Fla. Dist.

Ct.App.1984); MacReynolds v. MacReynolds, 29 Colo.App. 267 , 482 P.2d 407 (1971) (purpose of temporary alimony is to allow spouse to live in accustomed manner and provide means to litigate the controversy properly). The purpose therefore of a pendente lite alimony' award is “to maintain the status quo of the parties so the wife [or husband] would not suffer financial hardship” pending final resolution of the divorce proceedings. See