Rock v. Rock

ROSALYN B. BELL, Judge. While a plethora of issues and sub-issues are raised in this domestic case, they all involve money and alleged abuse of discretion. Specifically, the issues cover the award of indefinite spousal support, the amount of child support, the amount of the monetary award, the award of a portion of the proceeds from the sale of automobile kits, and denial of post judgment motions. Since we find no abuse of discretion, we will affirm, except on the issue which deals with an interest in the sale of automobile kits.

On that issue, we will reverse and remand. John and Priscilla Rock’s relationship began in 1977 when they decided to live together. They separated for about a nine-month period after Mr. Rock was transferred to the Washington, D.C. area. They married on October 24, 1980 after Ms. Rock came to the same area.

Beginning in 1981, Christopher, Mr. Rock’s son by a prior marriage, also lived with them in the home owned by Mr. Rock. Christopher drowned in an accident on July 4, 1983. Later, two children were born of the marriage, Morgan, born July 31, 1984, and Kathryn (Katie), born October 26, 1986. Ms. Rock worked outside the home until Christopher came to live with them.

At that time, she became a full-time wife and mother at Mr. Rock’s behest. Since then, she has had employment outside the home, but only for short periods of time. Ms. Rock filed a suit in the Circuit Court for Montgomery County for a limited divorce in November of 1985, alleging desertion and a course of conduct undermining her health. ⁶⁰⁴ Ms. Rock amended her complaint in July of 1986 and Mr. Rock left the marital home on September 25, 1986. On October 9, 1986, the court entered a pendente lite order for $1,500 per month spousal support and $800 per month for child support.

Pursuant to an order of referral from the circuit court to the Domestic Relations Master under Rule 2-541, and based on a third amended complaint filed February 23, 1989, a Domestic Relations Master conducted a merits hearing on March 20, March 21, May 19 and May 22, 1989. After the Master made his proposed recommendations, Mr. Rock filed a Notice of Intent to Except. On September 22, 1989 the Master filed his report, recommending indefinite spousal support to Ms. Rock commencing August 1, 1989 of $1,500 a month and child support of $860 per month per child. The Master also recommended attorney’s fees for Ms. Rock of $10,000 and suit money of $3,000, judgment for a monetary award of $53,000, payable at $10,000 a year for five years and $3,000 payable the sixth year, and an award to Ms. Rock of a one-third interest in the marital portion of the Allied Signal Vested Retirement Benefits Plan of $16,-142.23, when and if received.

The distribution of these retirement benefits was to be effected by a qualified domestic relations order (QDRO). The proposed order also recommended “a one-third interest in the funds received by the defendant from the sale of the automobile kits which [Mr. Rock] receives resulting from his sale of Marauder, Inc. to Mansour Akhavain, payable if, as and when received by” Mr. Rock. Exceptions were filed as well as an opposition and a response. On October 25, 1989, an immediate order was filed covering child support retroactive to August 1, 1989 of $860 per month per child.

A circuit court judge conducted a hearing on December 19, 1989 and took the matter under advisement. The hearing judge denied the exceptions on February 26, 1990 and entered judgment granting the relief recommended by the Master. Mr. Rock moved to alter or ⁶⁰⁵ amend the judgment or for a new trial which was denied April 11, 1990. This appeal followed.

MOTION TO STRIKE Ms. Rock moved to strike a portion of Mr. Rock’s brief. The motion arose out of a stipulation reached by the parties during the trial. For reasons not clear and undoubtedly irrelevant to the present motion, midway through the merits hearing, the parties stipulated that fault was not to be taken into account in determining spousal support and the monetary award. In his brief, Mr. Rock contested the award to Ms. Rock of indefinite spousal support.

He argued that this case differs from the cases cited by the Master in support of indefinite spousal support in that Ms. Rock did not invest her life in the marriage and the marriage did not “break up due to fault by Mr. Rock.” Ms. Rock contends this reference to fault violates the stipulation. Mr. Rock counters that there is no violation because the statement does not raise Ms. Rock’s fault in connection with the break-up of the marriage as a bar to spousal support. Rather, it merely attempts to distinguish her situation from the cases cited by the Master in support of indefinite spousal support and points out the absence of fault by Mr. Rock. Since the basis of the distinction he seeks to draw includes the very core of the stipulation, namely, that fault was not to be considered, Mr. Rock’s position is untenable.

The stipulation of the parties to exclude fault as a consideration covered both parties. We do not know if Mr. Rock was at fault as that consideration was taken from the case. The Legislature has removed fault as an automatic bar to spousal support. Md.Fam.Law Code Ann. § 11-103 (1984).

The Legislature did make the circumstances contributing to the estrangement a factor in granting alimony in lieu of the relatively modern common law doctrine which precluded spousal support where the one seeking support was at fault. Md.Fam.Law Code Ann. § ll-106(b) (1984). We do not know those circumstances as counsel then tried the case ⁶⁰⁶ as though the stipulation applied both to fault and the circumstances leading to the estrangement. Hence, the comment sought to be struck was not only a violation of the stipulation, it was a statement outside the record.

We grant the motion to strike. THE REPLY BRIEF On January 23, 1991, Mr. Rock filed a reply brief. Rule 8-503(d) provides, in pertinent part, that “[a]ny reply brief filed by the appellant shall not exceed 15 pages in the Court of Special Appeals____” Mr. Rock’s reply brief contains 30 pages. Sanctions for failure to comply with the requirements of Rule 8-503 are provided in subsection (g): “For noncompliance with this Rule, the appellate court may dismiss the appeal or make any other appropriate order with respect to the case, including an order that an improperly prepared brief be reproduced at the expense of the attorney for the party for whom the brief was filed.” We deem it unduly harsh to dismiss this appeal.

We do, however, in the exercise of our discretion, strike the reply brief and decline to consider it. SCOPE OF REVIEW We have often discussed the deference to be accorded the Master on findings of facts. This deference was discussed in Wenger v. Wenger, 42 Md.App. 596, 607 , 402 A.2d 94 (1979), and more recently in Levitt v. Levitt, 79 Md.App. 394, 398 , 556 A.2d 1162 , cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989), in which we said: “Deference will be accorded to the facts as found by the Master, but this only applies to ‘first-level’ facts. First-level facts are those that answer the What?, Where? and How? questions.

Deference is not accorded to ‘second-level’ facts or to recommendations____ Second-level facts are conclusions and inferences drawn from first-level facts. A first-level fact would be that one or both parents used drugs. A second-level fact would be that ⁶⁰⁷ that use did or did not affect [the child]. A recommendation would be a change or lack of change of custody.” (Citation omitted.) The decisions on such matters as (1) whether to award spousal support, (2) the amount of that support, (3) to whom to award custody, (4) the amount of child support, (5) whether to make a monetary award, (6) the amount of that award, (7) whether to enter a use and possession order, (8) the length of the use and possession order, and all other conclusions are solely within the prerogative of the trial judge.

The trial judge may accept or reject the recommendations of the Master on these matters, but must exercise his or her own independent judgment in reaching those conclusions. Ellis v. Ellis, 19 Md.App. 361, 365 , 311 A.2d 428 (1973). Decisions resulting from that independent judgment are to be reviewed by us and reversed only if they do not conform to the law or constitute an abuse of discretion. Under these circumstances, proper appellate discipline mandates that we affirm those decisions regardless of whether we would have made the same disposition provided those decisions were based on fact finding that was not clearly erroneous and the orders were not an abuse of discretion.

We will, where appropriate, attempt to distinguish between the first-level facts to which the trial judge was required to grant deference and second-level fact finding and decisions to which the trial judge was required to exercise his independent judgment. SPOUSAL SUPPORT Mr. Rock has raised a long list of reasons why the trial judge erred in adopting the Master’s recommendation of indefinite spousal support. The principal reasons appear to be the short-term nature of the marriage, the respective ages of the parties and the ability of Ms. Rock to be self-supporting, and the claim that the standards of living are not likely to be unconscionably disparate. Mr. Rock also contends he has a lot of debt while Ms. Rock is ⁶⁰⁸ relatively free of debt and what debt she accumulated resulted from her poor management.

Mr. Rock received $138,546.69 in income in 1988. During 1988, Ms. Rock maintained herself and the two children on $27,600. Her rent and utilities payments alone exceeded $12,000 per year. We find it hard to see how she could have also managed clothes for the children and food on the table without a little debt.

While the factors cited by Mr. Rock, together with many others including ability to pay, are all relevant to the amount and period of support, they are not relevant to his complaint, except for the claim of lack of disparity in standard of living. Mr. Rock does not argue that no spousal support is appropriate; he attacks the indefinite nature of the award. INDEFINITE SPOUSAL SUPPORT The purpose of spousal support is to provide the means whereby both parties may deal with their new, unmarried lives and to provide an opportunity for the recipient to become self-supporting. Under some specific circumstances, the Legislature has added yet another purpose.

Indefinite support is justified where circumstances are such that it is unlikely that the recipient will ever become economically self-sufficient or where unconscionable disparate living standards would exist. Turrisi v. Sanzaro, 308 Md. 515, 525 , 520 A.2d 1080 (1987); Wassif v. Wassif, 77 Md. App. 750 , 551 A.2d 935 , cert. denied, 315 Md. 692 , 556 A.2d 674 (1989). In Wassif , Judge Moylan, speaking for this Court, opined 77 Md.App. at 755 , 551 A.2d 935 : “The purpose of alimony is to provide financial support to an economically dependent spouse until that spouse becomes self-supporting. Md.Fam.Law Code Ann. § ll-106(c)(2) provides, however, that the court may award alimony for an indefinite period under certain circumstances: ⁶⁰⁹ '(c) Award for indefinite period — The Court may award alimony for an indefinite period, if the court finds that: (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.’ ” Indefinite support may be warranted where it would be impractical to expect the economically dependent spouse to become self-supporting through further education or training or where rehabilitative spousal support for a limited period of time would result in gross inequity.

Holston v. Holston, 58 Md.App. 308, 321-22 , 473 A.2d 459 (1984). In the instant case, the Master made the following findings of fact: “In the instant case Priscilla Rock is thirty-three years of age and has twenty-two credits towards a college degree. The parties have been married since 1980. She has a limited employment history and has never held a position which paid more than $24,000.00 per year.

Her last job at Bynon Associates paid $15,000.00. The testimony of Tamela Bynon of Bynon Associates clearly indicated that the plaintiff while showing enthusiasm, clearly was not qualified and possessed limited technical knowledge. When she earned $24,000.00 she was required to travel. She cannot travel now because of the need to care for her children.

She is presently unemployed. There was little if any evidence that she is capable of not only earning more than she has in the past, but there was clearly no evidence that she could ever come close to earning what the defendant earns and has earned in the past. In 1985, the defendant earned $173,907.00, in 1986 he earned $108,695.00, in 1987 he earned $125,881.47 and in 1988 he earned $138,546.69. His present salary is ⁶¹⁰ $98,940.00.

His past earnings record as well as his obvious skills and background insure that he will continue to earn as much or more than his past earnings. Clearly, even after Priscilla Rock makes maximum progress towards being self-supporting, the respective standards of living between the plaintiff and defendant will be unconscionably disparate.” This last statement is clearly a second-level finding and the trial judge was not required to give such a finding deference. He did, however, adopt that conclusion and there are ample first-level facts to support it. Moreover, those first-level facts as found by the Master were supported by sufficient evidence.

The Master further found: “Moreover, the defendant has earned a substantial bonus over the past years and there is no reason to anticipate that he will not continue to earn a like bonus. His most recent bonus, or compensation award in 1989 was $29,-700.00.... “When the parties were married they enjoyed a comfortable lifestyle. They lived in a home in Potomac, they had plenty of income and cash available to them, both the plaintiff and defendant engaged in the defendant’s avocation of refurbishing and designing automobiles and the defendant spent abundant sums in furtherance of this endeavor. They had no car payments, they sailed frequently and they belonged to a polo club.

Their home had five bedrooms and three fireplaces and was located on a one acre parcel.” The Master next concluded: “It is impractical to expect the plaintiff to ever approach this standard of living and to approach the standard of living which the defendant enjoys and will enjoy in the future with his substantial income and earning capacity.” Again, this is a second-level fact, but amply supported by the Master’s first-level fact finding which, in turn, was ⁶¹¹ amply supported by the evidence. Hence, we cannot hold that the trial judge erred in adopting that conclusion. The appellate courts have considered the award of indefinite spousal support in a substantial number of cases. The failure to award indefinite spousal support has only been reversed in two published cases: Holston v. Holston, 58 Md.App. 308 , 473 A.2d 459 (1984), and Wassif v. Wassif, 77 Md.App. 750 , 551 A.2d 935 (1989).

In Holston, 58 Md.App. at 323 , 473 A.2d 459 , the wife’s potential income was estimated to be only 15 percent of that of the husband. In Wassif, 77 Md.App. at 757 , 551 A.2d 935 , the wife’s potential income was only about four percent. In Benkin v. Benkin, 71 Md.App. 191 , 524 A.2d 789 (1987), the wife’s potential earnings were 16 percent. While the Court in Benkin reversed on other grounds, it did direct the trial court to reconsider the failure to award indefinite spousal support.

In Rogers v. Rogers, 80 Md.App. 575 , 565 A.2d 361 (1989), the Court reversed based on the failure to award any spousal support. No finding had been made in Rogers on the wife’s potential income. The husband’s earnings, however, were in excess of $9,000 per month and her highest annual salary had been $17,500. Rogers, 80 Md. App. at 592 , 565 A.2d 361 .

The Court commented that based on these earnings it “would seem, therefore, that a gross disparity in income, which ordinarily translates into a gross disparity in standards of living, would be an unconscionable disparity.” Rogers, 80 Md.App. at 591 , 565 A.2d 361 . In Melrod v. Melrod, 83 Md.App. 180 , 574 A.2d 1 (1990), we reversed for a reason other than the failure to award indefinite spousal support. We remanded and pointed out that, unless the monetary award was revised to provide Ms. Melrod with a great deal of income, “the disparity in income and, therefore, standards of living, [would] be far greater than we held to be unconscionable” in Holston and Rogers. Melrod, 83 Md.App. at 196 , 574 A.2d 1 .

These comments suggest, while not directing, that indefinite support would be appropriate under the circumstances of Benkin, Rogers and Melrod . ⁶¹² This Court has also approved the award of indefinite spousal support where the disparity was far less than the disparity in Holston and Wassif. In Kennedy v. Kennedy, 55 Md.App. 299, 307 , 462 A.2d 1208 (1983), indefinite spousal support was awarded where the wife’s income was 34 percent of the husband’s. In Bricker v. Bricker, 78 Md. App. 570, 577 , 554 A.2d 444 (1989), where the wife’s income was 35 percent of the husband’s income, the court awarded indefinite spousal support. In Broseus v. Broseus, 82 Md. App. 183, 196 , 570 A.2d 874 (1990), the percentage was 34.9 percent; and in Zorich v. Zorich, 63 Md.App. 710, 717 , 493 A.2d 1096 (1985), it was 20 percent. 1 This Court has yet to reverse an award of indefinite spousal support in a published opinion on the basis that the finding of unconscionable disparity was clearly erroneous.

On the other hand, we have affirmed cases where the trial judge has refused to award indefinite spousal support where similar disparities in income were projected. For instance, in Green v. Green, 64 Md.App. 122 , 494 A.2d 721 (1985), the trial court projected Ms. Green’s full earning potential plus her income from the monetary award would amount to 22 percent of that of Mr. Green. Our approval or denial of these awards clearly indicate the importance we place upon the judgment and discretion of the fact finder in evaluating and weighing the evidence and determining all the facts and circumstances in making these very important decisions. Admittedly, under the Master system, the division of fact finding and decision making sets up a dichotomy in which the person judging the credibility of the evidence and the person making the ultimate decisions are separated.

Moreover, if the judge merely adopts the Master’s recommendations without hearing the ⁶¹³ testimony or rendering an opinion, we cannot evaluate his or her reasoning in reaching the decision, or base our decision upon the trial judge’s ability to see and judge the witnesses. While this is somewhat of a glitch in the process, we know of no simple way to remove the dichotomy, short of a total revision of the Masters’ system, their role or status. Nevertheless, the presence of that dichotomy does not permit us to substitute our judgment for that of the trial judge where he or she has not abused his or her discretion. Unless the record is clearly to the contrary, we assume the trial judge knew and followed the law.

Campolattaro v. Campolattaro, 66 Md.App. 68, 79 , 502 A.2d 1068 (1986). Mr. Rock does not estimate or project Ms. Rock’s income. Even if we assume she could make as much as $30,000 per year, that would only be 21.7 percent of Mr. Rock’s 1988 income of $138,546.69. In keeping with our prior decisions, this difference in income is substantial enough to uphold an award of indefinite spousal support.

Additionally, Mr. Rock complained that his current position would not continue. We do not know what efforts he has made to find comparable work. Certainly, it is not inappropriate to infer, as did the Master and trial judge, that he could find a comparable situation. Past earnings are the best evidence of future earnings, absent some specific showing to the contrary.

By the same token, Ms. Rock’s past earnings give little indication that the living standards of the parties will be anything other than unconscionably disparate. Moreover, if his income were reduced to $100,000, Ms. Rock would still only earn 30 percent of his income. As we have said, grossly disparate income ordinarily translates into grossly