Ridgeway v. Ridgeway

BARBERA, J. This case presents the question, among others, of whether the trial court, after an appeal has been noted, can award the prevailing spouse advanced attorney’s fees to defend the appeal from the court’s refusal to terminate alimony. We shall hold that the trial court can make such a fee award and that the court properly exercised its discretion to do so in this case. George Kenneth Ridgeway, appellant, appeals from an order of the Circuit Court for Calvert County reducing, but not terminating, the indefinite alimony he pays to his former wife, Nancy G. Ridgeway, appellee. Nine months after the parties were divorced and appellant was ordered to pay alimony to appellee, and in anticipation of his upcoming retirement, appellant filed a petition for modification or termination of alimony (“petition for modification”).

Fifteen months after the divorce, appellant voluntarily retired from employment, and the parties began receiving retirement benefits. The circuit court subsequently granted the petition for modification and reduced, but did not terminate, appellant’s monthly alimony obligation. The court also awarded attorney’s fees to appellee. Appellant appealed, and appellee sought attorney’s fees to defend the case on appeal.

The circuit court granted appellee’s petition for advanced appellate ³⁷⁸ attorney’s fees, and appellant appealed from that order as well. We consolidated the two appeals. Appellant presents three questions for our review, which we have reworded slightly: 1. Given the change in the parties’ respective economic circumstances, did the court err or abuse its discretion in refusing to terminate alimony, considering in particular that appellee’s total income is greater than appellant’s total income? 2.

Did the court err or abuse its discretion in awarding appellee attorney’s fees as part of its ruling on appellant’s petition to modify or terminate alimony? 3. Did the court have jurisdiction to consider appellee’s post-appeal motion for advanced attorney’s fees relating to the instant appeal, and if so, did the court err or abuse its discretion in awarding appellant $3,700.00 in advanced appellate attorney’s fees? We affirm the judgments of the circuit court. FACTS AND PROCEEDINGS The parties divorced on June 18, 2003.

In the judgment of absolute divorce, the court ordered, inter alia, that appellant pay indefinite alimony to appellee in the amount of $1,750.00 per month, and that appellee is entitled to a “pro-rata share” of appellant’s retirement benefits. The court cautioned appellant in its oral ruling at the divorce hearing that alimony would not necessarily be adjusted upon his retirement. The court stated: [Appellant] has talked about retirement. That will be a decision he will have to make.

The only thing I would caution him is that there is not necessarily an assurance that any award would be adjusted based on retirement. Obviously that retirement would create income for [appellee], but that doesn’t necessarily mean there would be a dollar for dollar adjustment. I’m not saying there wouldn’t be. I am just saying you can’t assume that there would be. ³⁷⁹ On March 12, 2004, appellant filed the petition for modification in anticipation of his upcoming retirement.

Appellant stated in the petition that he expected both parties to begin receiving retirement benefits upon his retirement. He asked the court to terminate his obligation to pay alimony once appellee began receiving her pro-rata share of the retirement benefits. He also requested an award of attorney’s fees. Appellee filed a motion to dismiss the petition for modification, arguing that appellant’s request was “patently premature” because appellant was not yet retired when he filed the petition.

The court denied the motion and set the matter in for a hearing. Meanwhile, in September 2004, appellant retired from his job as a facilities manager at the Washington Navy Yard. Appellant was 55 years old. At the time of his retirement, he earned an annual salary of $84,127.00.

On January 28, 2005, appellee filed a petition for contempt and show cause order (“petition for contempt”), requesting the court to find appellant in contempt because he had failed to make alimony payments for December 2004 and January 2005. Appellee sought attorney’s fees incurred in the filing of the petition for contempt. On March 11, 2005, the court held a hearing on appellant’s petition for modification and appellee’s petition for contempt. Appellant testified that the parties decided during the marriage that he would retire at age 55 because the males in his family die at approximately age 70.

He currently receives a net retirement payment of $1,662.00 per month, and in 2004, he received approximately $100.00 per month in interest income as well. Appellant acknowledged that he has not made an alimony payment to appellee since November 2004, explaining that she began to receive retirement benefits in December 2004. Appellant testified further that, upon his retirement in September 2004, he received a payment of $23,634.33 from his employer. That payment represented a $25,000.00 incentive for retiring plus compensation for accumulated annual leave, ³⁸⁰ minus taxes.

Appellant did not notify appellee of the payment or share any portion of it with her. Appellant received approximately $110,000.00 in proceeds from the sale of the parties’ marital home. At the time of the hearing, he had approximately $90,000.00 in his bank accounts. Appellant testified that he presently resides with his fiancee in her home in Willards, Maryland.

He pays her $200.00 each month toward the mortgage and half the costs of operating the home. He also has a monthly car payment of approximately $662.00 per month. From March through October, he works about three days per week at a golf course near his current residence. He earns a low wage, but he is able to golf at the course for free.

Appellant stated that he has a number of medical problems, including asthma, high blood pressure, and carpal tunnel syndrome in both hands. Appellee, in turn, testified that she works in the Calvert County school system as an assistant manager of a cafeteria in an elementary school. She earns approximately $17,084.00 a year. She purchased a new home in Prince Frederick, Maryland, in September 2003, shortly after selling the house that she lived in with appellant.

Appellee’s monthly mortgage payment is $1,285.00 and her monthly car payment is $403.00. She has approximately $30,000.00 in a savings account. She can retire from her current position in 2008 and earn a monthly retirement allowance of $163.00. If she remains employed until 2014, however, she will receive $393.00 per month.

Appellee testified further that, in December 2004, she received about $3,200.00 from appellant’s retirement fund. Since then, she has received a monthly retirement benefit of approximately $1,239.00. The cost of a former spouse survivor annuity, $238.00, is subtracted from her portion of the retirement benefit. Appellee stated that she has a number of medical problems, including arthritis, Grave’s disease, and psoriasis.

Appellee incurred approximately $5,800.00 in attorney’s fees for services rendered in defending the petition for modification. ³⁸¹ Appellant argued in closing that alimony should be terminated because his monthly income is less than appellee’s. He further argued that he should not be found in contempt because, the lack of the requisite show cause order aside, he withheld the alimony payments only after appellee began receiving her share of his pension. Appellee acknowledged that appellant’s retirement from full-time employment qualified as a change in circumstance. Evidently alluding to her house purchase, appellee argued that she had reasonably anticipated receiving, under the court’s order, both an indefinite alimony award of $1,750.00 and her share of appellant’s retirement, and that the equities dictated that the original award not be modified.

Appellee further argued that appellant should be considered to be in contempt, “show cause order or not.” The court noted that it could not find appellant in contempt because a show cause order had not been issued. The court held sub curia the petition for modification. On April 6, 2005, the court issued an order reducing appellee’s monthly alimony obligation from $1,750.00 to $500.00. The court stated that it “is satisfied that some modification is necessary and that [appellant] is entitled to a reduction of his monthly alimony payment, but that some alimony continues to be due.” The court dismissed the petition for contempt, denied appellant’s request for attorney’s fees, and granted appellee’s request for attorney’s fees in the amount of $2,500.00.

Appellant noted a timely appeal from that order. On May 10, 2005, appellee filed a petition for appellate attorney’s fees to enable her to prepare a response to appellant’s appeal to this Court. In the petition, appellee argued that Maryland Code (1984, 2004 RepLVol.), § 11-110 of the Family Law Article (“FL”) permits the court to award attorney’s fees “ ‘at any point in a proceeding^]’ ” which includes anticipated fees and costs incurred in defending an appeal. Ten days later, appellee filed another petition for contempt and show cause order, arguing that appellant failed to pay her $500.00 in alimony on May 1, 2005, as required by the court’s ³⁸² April 6, 2005 order.

Appellee further alleged that appellant failed to comply with the court’s order that he pay within 30 days the $2,500.00 in counsel fees that she incurred in defending the petition for modification. Appellant did not answer appellee’s petition for contempt, and, on July 15, 2005, the court granted the petition and entered an order of default. The court ordered appellant to pay $4,000.00 to appellee, representing past due alimony and the attorney’s fees that the court had awarded appellee in connection with the petition for modification. The court granted appellee’s request for attorney’s fees related to the contempt petition and ordered appellant to pay an additional $1,303.75 in attorney’s fees associated with appellee’s prosecution of that petition.

On August 1, 2005, appellant filed a motion to set aside the court’s order of default. In the motion, appellant claimed that he did not file a response to appellee’s contempt petition because he believed that, upon noting his appeal in this Court, the circuit court was divested of jurisdiction. Five weeks later, appellant filed a supplemental memorandum in support of his response to appellee’s petition, again arguing that the circuit court lacked jurisdiction to take action in the case once the appeal was noted. Appellant further argued that an award of attorney’s fees and costs before the fees and costs were actually incurred would be unprecedented and that FL § 11-110 does not permit an award of appellate attorney’s fees.

On December 21, 2005, the court conducted a hearing on appellee’s petition for advanced appellate attorney’s fees. At the hearing, appellee testified that she had not yet signed an attorney retainer agreement for the case on appeal because she could not afford to pay an attorney. Appellee argued that she was a privileged suitor entitled to an advanced award of attorney’s fees. She offered, and the court accepted, Mr. John Erly, a Maryland attorney, as an expert in the area of appellate attorney’s fees.

Mr. Erly testified that, for appellate work, he generally charges a retainer of $5,000.00. He fur ³⁸³ ther testified that, in his experience, the total cost of bringing an appeal to the Court of Appeals or the Court of Special Appeals typically ranges from $5,000.00 to $10,000.00. Appellant responded that, because an appeal in the case was pending before this Court, the circuit court lacked jurisdiction to award attorney’s fees to appellee. He argued in the alternative that appellee is not entitled to advanced appellate attorney’s fees because she is not a “privileged suitor,” she failed to demonstrate the need for an award of fees, and such an award would be speculative, in any event.

The court determined that it had jurisdiction to grant an advanced award of appellate attorney’s fees, and the court ordered appellant to pay $3,700.00 in attorney’s fees to appellee pending the appeal in this case. Appellant noted a timely appeal from that order, and we consolidated the appeal with the earlier appeal from the court’s judgment modifying alimony. DISCUSSION I. Appellant first contends that the court erred in denying his petition to terminate indefinite alimony. He claims that, because appellee’s monthly income exceeds his monthly income, the relative economic positions of the parties necessitate the termination of alimony.

He further claims, as he did before the circuit court, that “the retirement payment replaces the alimony payment, warranting termination of alimony.” Appellee responds that the court properly analyzed the financial circumstances of the parties and exercised proper discretion by reducing the alimony award from $1,750.00 per month to $500.00 per month. “[I]n reviewing an award of alimony we ‘defer[ ] to the findings and judgments of the trial court[.]’ ” Simonds v. Simonds, 165 Md.App. 591 , 606 n. 4, 886 A.2d 158 (2005) (quoting Brewer v. Brewer, 156 Md.App. 77, 98 , 846 A.2d 1 (2004)). We will not disturb an alimony determination “unless ³⁸⁴ the trial court’s judgment is clearly wrong or an arbitrary use of discretion.” Blaine v. Blaine, 97 Md.App. 689, 698 , 632 A.2d 191 (1993), aff'd, 336 Md. 49 , 646 A.2d 413 (1994). Furthermore, “[t]he doctrine of res judicata applies in the modification of alimony ... and the [appellate] court may not re-litigate matters that were or should have been considered at the time of the initial award.” Id. at 702, 632 A.2d 191 (citations and internal quotation marks omitted). FL §§ 11-101 to 11-112 govern the award of alimony in Maryland.

FL § ll-107(b) addresses the modification of alimony awards and provides that, “[s]ubject to § 8-103 of this article and on the petition of either party, the court may modify the amount of alimony awarded as circumstances and justice require.” 1 “A party requesting modification of an alimony award must demonstrate through evidence presented to the trial court that the facts and circumstances of the case justify the court exercising its discretion to grant the requested modification.” Langston v. Langston, 366 Md. 490, 516 , 784 A.2d 1086 (2001). Upon a proper petition, the court may modify a decree for alimony “at any time if there has been shown a material change in circumstances that justify the action.” Lieberman v. Lieberman, 81 Md.App. 575, 595 , 568 A.2d 1157 (1990) (citation and internal quotation marks omitted). There is no dispute in the instant case that appellant’s retirement constituted a material change in circumstance warranting the court’s consideration of the petition for