Lemley v. Lemley

FISCHER, Judge. Daniel C. Lemley contests the order of the Circuit Court for Montgomery County awarding Suzanne C. Lemley: (1) custody of the pair’s two minor children; (2) a monthly child support payment in the amount of approximately $700; and (3) attorney’s fees in the amount of $10,000. Mr. Lemley ⁶²⁴ raises a variety of issues for our review, which we have reordered, reworded, and condensed for clarity: 1 I. Did the chancellor 2 err by awarding physical and legal custody of the two minor children to Mrs. Lemley?

II

Did the chancellor err in imposing on Mr. Lemley a $717.18 per month child support payment obligation?

III

Did the chancellor have jurisdiction to hold the hearing on the merits on January 9,1995?

IV

Did the chancellor afford Mr. Lemley proper notice and opportunity to be heard at the January 9,1995 hearing? V. Did the chancellor abuse his discretion in awarding Mrs. Lemley attorney’s fees? Facts Mr. and Mrs. Lemley were married in 1975. Two children were born as a result of this union: Stuart, born in 1981, and Warren, born in 1985.

At the time of marriage, Mr. Lemley had retired from the District of Columbia Fire Department with a disability pension. Mr. Lemley made various attempts at other employment, with limited success. As of the filing of this instant appeal, Mr. Lemley is employed as a computer salesman. Mrs. Lemley began full-time work as a legal secretary in 1989, and continues in that position today.

In May of 1991, Mrs. Lemley left the marital home and took the two minor children with her. Mr. Lemley then undertook the first step in the procedural odyssey that is this case, filing a petition for immediate return of the children, custody, and child support. Mrs. Lemley filed a cross-complaint for divorce. Eventually, a full hearing on the merits was held before a master, at which all contested issues were raised. ⁶²⁵ The master issued her recommendations on June 10, 1993.

Mr. Lemley failed to file timely exceptions to the master’s recommendations, and on June 21, 1993, the court initially granted Mrs. Lemley’s complaint for absolute divorce. The judgment awarded Mrs. Lemley custody of the two minor children, ordered Mr. Lemley to pay $673.22 in monthly child support, and denied all requests for use and possession, alimony, attorney’s fees, and a monetary award. Upon request by Mr. Lemley, the court agreed to waive the late filing violation and allowed Mr. Lemley to file exceptions to the recommendations. The chancellor denied Mr. Lemley’s exceptions in full after consideration at a hearing.

Mr. Lemley then filed his first appeal with this Court. In Mr. Lemley’s first appeal, filed October 31, 1994, this Court vacated the chancellor’s decision regarding absolute divorce and remanded for a more definite statement. (The prior appeal is recorded at Lemley v. Lemley, 102 Md.App. 266 , 649 A.2d 1119 (1994)). We also vacated and remanded on the custody issue, as the chancellor failed to address specifically Mr. Lemley’s exceptions to the recommendations with references to facts in the record.

We vacated and remanded the monetary award, and we reversed the award of child support and remanded for recalculation of the award based on the actual dollar amount of Mr. Lemley’s disability pension, as opposed to the adjusted for tax-free status figure used by the chancellor in his previous calculation. The judgment of the chancellor was affirmed in all other respects. At the hearing on November 18, 1994, the chancellor informed the parties that he would await the issuance of this Court’s mandate before conducting a full hearing on the merits in conjunction with the order of this Court. The chancellor then scheduled the matter for a full hearing on the merits to begin on January 9, 1995 at 9:30 A.M., and to continue until completion.

Originally, when issuance of the mandate was presumed to be imminent, the parties also planned to have a one or two hour hearing, within a day or two of the issuance of the mandate, solely on the issue of custody. That hearing never occurred. ⁶²⁶ Mr. Lemley filed a Motion to Reconsider Opinion with this Court on November 22, 1994, which delayed the issuance of our mandate until a ruling was made on that motion. The motion was denied on December 27, 1994, and the mandate was issued on January 6,1995. Mr. Lemley filed a Motion for Removal, which the Administrative Judge for the Montgomery County Circuit Court heard and denied on January 9, 1995.

On that same day the chancellor heard from both parties on preliminary matters, stated that he would take the evidence gathered at that hearing under advisement until he received the mandate, and reset the full hearing on the merits to commence on January 10, 1995. The chancellor and the parties received the mandate before the start of the hearing, on January 10. The hearing continued through January 13, 1995. The chancellor recorded his decision in an eleven page Memorandum Opinion and Order, filed June 12, 1995.

In that order, the chancellor: (1) granted Mrs. Lemley an absolute divorce 3 ; (2) granted Mrs. Lemley care, custody, and control of the minor children; (3) ordered Mr. Lemley to pay child support in the amount of $717.18 per month; and, (4) ordered Mr. Lemley to pay Mrs. Lemley $10,000 as contribution for her attorney’s fees. Mr. Lemley filed this timely appeal to contest that disposition. Discussion When making a decision to uphold the recommendations of a master over a party’s exceptions, a chancellor is required to find with particularity and refer to the facts in evidence on which he or she relied. See Domingues v. Johnson, 323 Md. 486, 496 , 593 A.2d 1133 (1991).

In Lemley I, the chancellor failed to provide this required specificity and particularity. For that reason, we remanded the chancellor’s decisions regarding custody, absolute divorce, and the requirement that Mr. Lemley pay child support. In addition, we ⁶²⁷ provided some guidance as to the proper steps for the chancellor to take in issuing his or her order on remand. In this case, the chancellor conducted hearings on January 9-13, 1995, in part to gather additional evidence.

After hearing argument and testimony from both sides, the chancellor recorded his decision in an eleven page Memorandum Opinion and Order, with a supplement including the Child Support Worksheet. An examination of the chancellor’s opinion on the issues raised by Mr. Lemley will illustrate that the chancellor complied with the procedural guidelines detailed by this Court in its opinion on the prior appeal. I. When we analyzed the propriety of the chancellor’s decision to grant custody of the two minor children to Mrs. Lemley on the first appeal, this Court stated that on remand, at a minimum, the chancellor should separately address each of the four broad findings on which he based his decision and state for the record how he resolved each challenge. In his opinion on remand, the chancellor listed the factors to be considered when deciding custody, and went through an analysis of each of these factors as applied to the facts of the instant case.

The chancellor also listed the additional facts and evidence he considered in reaching his decision. In doing so, the chancellor referred to specific facts from the record as the basis for his decision on each contested issue, as required by the prior order of this Court. Our analysis, however, does not stop here. After determining that the chancellor acted in accordance with the requirements of our mandate, Mr. Lemley’s current appeal requires us to determine if the chancellor was clearly erroneous in his findings.

To prove that a chancellor’s decision was clearly erroneous is an extremely heavy burden. “The chancellor’s decision in a contested custody case, frequently among the most difficult a judge is called upon to make, is of critical importance ... It is unlikely to be overturned on appeal.” Domingues, 323 Md. at 492 , 593 A.2d 1133 . A chancellor’s ⁶²⁸ decision founded upon sound legal principles and based upon factual findings that are not .clearly erroneous will not be disturbed in the absence of a showing of a clear abuse of discretion. Ross v. Hoffman, 280 Md. 172, 186 , 372 A.2d 582 (1977); Bagley v. Bagley, 98 Md.App. 18, 31-32 , 632 A.2d 229 , cert. denied, 334 Md. 18 , 637 A.2d 1191 (1994); Davis v. Davis, 280 Md. 119, 124-125 , 372 A.2d 231 , cert. denied, 434 U.S. 939 , 98 S.Ct. 430 , 54 L.Ed.2d 299 (1977).

A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion. E.g., Maxima Corp. v. Cystic Fibrosis, 81 Md.App. 602, 610 , 568 A.2d 1170 , cert. denied, 6933 Arlington Development v. Maxima Corp., 319 Md. 582 , 573 A.2d 1337 (1990); see also Maryland Metals, Inc., v. Metzner, 282 Md. 31, 41 , 382 A.2d 564 (1978) (stating that, if there is substantial evidence in the record to support a finding of a trial court, then that finding is not clearly erroneous). Under the clearly erroneous standard, this Court does not sit as a second trial court, reviewing all the facts to determine whether an appellant has proven his case. Instead, our task is to search the record for the presence of sufficient material evidence to support the chancellor’s findings.

Additionally, all evidence contained in an appellate record must be viewed in the light most favorable to the prevailing party below. Maryland Metals, 282 Md. at 41 , 382 A.2d 564 . In the instant case, the record of the hearing before the master is extensive and includes testimony from numerous witnesses. Included therein is testimony favoring both parties to this case.

When we remanded this case to the chancellor, he conducted additional fact finding, including the taking of testimony from Dr. Copeland, an expert witness appointed by the court to determine what custody disposition would be in the best interests of the two minor children. Doctor Copeland strongly recommended that Mrs. Lemley be awarded custody. His testimony is evidence considered by the chancellor in support of the decision to award custody to Mrs. Lemley. In light of the considerable deference afforded to the finder of ⁶²⁹ fact under the clearly erroneous standard, this evidence, in conjunction with the other evidence in support of Mrs. Lemley, is sufficient to uphold the judgment of the chancellor, and we refuse to disturb it.

II

The other issue raised by Mr. Lemley’s brief that had been dealt with on the previous appeal is the payment of child support. We reversed the initial award of child support by the chancellor, with the direction that, on remand, the chancellor make a child support payment determination using the actual dollar amount of Mr. Lemley’s disability pension in his calculation, and not a value adjusted to reflect the pension’s tax free nature. As evidenced by the Child Support Worksheet, the chancellor set Mr. Lemley’s payment obligation at $717.18. To arrive at this figure, the chancellor used the actual dollar value of Mr. Lemley’s disability pension in conjunction with his earnings from his computer sales job.

That procedure satisfied our mandate, and we see no error in the chancellor’s decision on this issue.

III

Mr. Lemley maintains that the chancellor did not have jurisdiction to conduct a hearing on the merits on January 9-13, 1995. Mrs. Lemley insists that the chancellor made no procedural error by holding this hearing. Md. Rule 8-604(d) states, “Upon remand, the lower court shall conduct any further proceedings