Scott v. Scott

BISHOP, Judge. On May 6, 1992, appellee/cross-appellant, Jean A. Scott (“Wife”), filed a complaint for limited divorce from appellant/cross-appellee, Warren W. Scott, Jr. (“Husband”), in the Circuit Court for Wicomico County. In her complaint, Wife alleged desertion and cruelty. Husband denied the cruelty allegation, admitted leaving the marital home as of March 15, 1992, but denied such act constituted desertion.

Husband ⁵⁰⁵ filed a counter-complaint for limited divorce on June 10, 1992, alleging voluntary separation and constructive desertion. Wife denied both allegations. On March 24, 1993, Husband filed an amended counter-complaint for absolute divorce, alleging the same grounds in his original counter-complaint. Wife later amended her complaint to request an absolute divorce.

The trial court entered a pendente lite order giving Wife temporary custody of the parties’ two children and use and possession of the family home and family use personal property. Husband received visitation rights, was ordered to pay child support, to provide health and dental insurance for the children, and to return certain valuables to Wife. The pendente lite order also mandated that the parties split evenly all medical bills not covered by insurance, the costs of all house repairs, and all mortgage payments and taxes on the family home. The trial court reserved its ruling with respect to alimony.

Wife answered Husband’s amended counter-complaint and admitted voluntary separation, but denied constructive desertion. Wife also filed an amended complaint for divorce, “absolute or limited,” alleging desertion and cruelty. Husband reasserted that he separated from Wife on March 15, 1992, but denied desertion and cruelty. The trial court held the divorce hearing on September 24 and 29,1993.

On September 24, the court orally granted Wife a divorce on the ground of desertion by Husband. On December 14, 1993, the court issued its opinion and order on the remaining issues involving marital property distribution, the monetary award, custody and visitation, child support, and alimony. Both parties appealed that order. Issues Husband and Wife raise numerous issues on appeal and cross-appeal, which we consolidate and rephrase for clarity: I. Alimony A. Did the trial court err in granting Wife alimony? ⁵⁰⁶ B. Did the trial court err in not granting Wife indefinite alimony?

II

The Monetary Award A. Did the trial court err in its method of computing the monetary award? B. Did the trial court err in not specifying the method of payment of the monetary award? C. Did the trial court err in granting Wife a fixed dollar amount of Husband’s pension “as, if, and when” received?

III

Child Support A. Did the trial court err in its use of the Child Support Guidelines? B. Did the trial court err in failing to order Husband to provide the children with health and dental insurance?

IV

Use and Possession Did the trial court err when it failed to incorporate the pendente lite order relative to use and possession of the family home and family use personal property that the parties previously had stipulated would be controlling? V. Sale of Jointly Owned Realty and Personalty Did the trial court err when it failed to order the sale of all jointly owned property?

VI

Attorney’s Fees Did the trial court err in not awarding Wife attorney’s fees and litigation costs? Facts Husband and Wife were married May 21, 1979. They had two children during their marriage, Alexander, born September 19, 1980, and Meredith, born February 26, 1986. Husband and Wife purchased their family home in Salisbury, Maryland during 1980 for $88,000.

The parties increased the value of the family home to $138,000 by the addition of $50,000 in improvements. Both parties owned substantial property, real and personal, marital and nonmarital, and both were monetary and nonmonetary contributors to the marriage. Ac ⁵⁰⁷ cording to Wife, in December 1991, Husband announced he was leaving the family home. He moved to Ocean City, Maryland on February 15, 1992, -without Wife’s consent.

He returned to the family home, on March 14, 1992, spent one night at the home, and has continuously lived away from the family home since March 15, 1992. At the time the trial court issued its opinion and order in December 1993, Wife was thirty-nine years old and Husband was forty-five years old. Wife works two jobs that give her an approximate annual salary of $27,500. She works full-time for the University of Maryland Cooperative Extension Service in Salisbury as an extension advisor.

She also performs freelance writing for various companies. Wife has been the primary caretaker for the children. Husband’s annual salary is approximately $72,000, plus bonuses. He is a territory sales manager for GIBA-GEIGY Corporation, where he has been employed since 1974.

CIBA-GEIGY provides Husband with a motor vehicle, health and dental insurance, pension plan, and a 401(k) savings plan. Husband also has two expense accounts. Additional facts will be discussed infra. Discussion First we discuss the validity of the divorce orally granted to Wife on the grounds of desertion by Husband.

The judgment of divorce must be properly granted; if not, then the issues raised on appeal would be moot. See e.g., Md.Fam.Law Code Ann., § 8—203(a)(1) (1991) (“the court shall determine which property is marital property[] when the court grants an annulment or an absolute divorce”) (emphasis added); id. § 8-205 (the court may not grant a monetary award until after the court determines which property is marital property; marital property is not determined until after an absolute divorce is granted). As indicated supra, the divorce hearing was conducted on September 24 and 29, 1993. At the end of the first day of the hearing, the following colloquy took place between the court and counsel for the parties: ⁵⁰⁸ THE COURT: All right.

We’ll recess until Wednesday-morning [September 29]. Does nine o’clock suit everybody? [WIFE’S ATTORNEY]: That’s fíne, Your Honor, thank you, Judge. [HUSBAND’S ATTORNEY]: Yes, it does, Judge. Would it be possible for you to grant the divorce today? THE COURT: Well, let me ask you.

You’re not pursuing the [amended counter-complaint for absolute divorce], is that correct? [HUSBAND’S ATTORNEY]: That’s correct. THE COURT: All right. I’ll grant her the divorce. [WIFE’S ATTORNEY]: And you’re reserving on the marital property issue. THE COURT: I’ll reserve on the marital property for a period of—well, do you want me to rule on custody? [HUSBAND’S ATTORNEY]: That doesn’t matter. [WIFE’S ATTORNEY]: We can handle that on Wednesday, Your Honor.

THE COURT: All right. (Whereupon, the hearing was concluded). (Emphasis added). The docket entry for September 24, 1993 reads as follows: Court grants divorce, reserves ruling on marital property, and ordes [sic] all parties to reconvene on Wednesday, September 29, 1993 at 9:00 a.m. for continuation of hearing.

The court never issued a written order, decree, or judgment of divorce. Moreover, the court never indicated that it would issue a written order of divorce. There is no specific docket entry, aside from that reprinted supra, indicating that an order for judgment of divorce had been filed. The hearing continued on September 29, 1993.

The court heard testimony and arguments on the remaining issues of marital property distribution, the monetary award, custody and visitation, child support, and alimony. The parties were given ten days to submit post-trial memoranda relative to the issues reserved by the trial court. Both parties, in their ⁵⁰⁹ memoranda, acknowledged that the court granted a divorce on September 24, 1993. On December 14, 1993, the trial court filed an extensive opinion and order relative to the property, custody, support, and alimony issues.

The trial court began its discussion noting that “[t]his court orally granted a divorce on September 24, 1993 on the grounds of desertion by the Husband.” “[T]he threshold question that must be resolved is, simply put, ‘the old, old question of when is a judgment a judgment.’ ” Davis v. Davis, 335 Md. 699, 709 , 646 A.2d 365, 369 (1994) (quoting Cedar Creek Oil & Gas Co. v. Fidelity Gas Co., 238 F.2d 298, 298 (9th Cir.1956)). In Davis , the Court of Appeals discussed, at length, Maryland law relative to granting a judgment. A judgment is “any order of court final in its nature entered pursuant to these rules.” Rule l-202(m). Rule 2-601 dictates the manner in which a judgment is to be entered.

In Davis , the Court of Appeals, reading Rules 1-202(m) and 2-601 in conjunction, determined that two acts must occur for an action by a court to be deemed the granting of a judgment: the court must render a final order and the order must be entered on the docket by the clerk. These two required acts—rendition of a judgment by the court and entry of the judgment by the clerk—are discrete occurrences. Davis, 335 Md. at 710 , 646 A.2d at 370 . “A judgment is therefore not granted until it is both properly rendered and properly entered.” Id. Rendition of a judgment, the court stated, “is the court’s pronouncement, by spoken word in open court or by written order filed with the clerk, of its decision upon the matter submitted to it for adjudication.” Id.

(emphasis added). The clerk’s entry of the judgment on the docket is a purely ministerial act evidencing the judicial act of the court rendering the judgment. Id. We need to determine whether the court’s oral pronouncement, in open court, “grant[ing Wife] the divorce,” is a valid judgment of divorce. ⁵¹⁰ Although a trial court’s judgment must be an unqualified, final disposition of the matter in controversy, there are no formal requirements regarding the rendition of a judgment.

Id. In the case sub judice, after determining that no counter-complaint for divorce was pending, the court granted Wife a divorce. In stating “[a]ll right[,] I’ll grant her the divorce,” it is clear that the court found no impediment to rendering a judgment of divorce at that time. More importantly, there is nothing in the court’s language which would even remotely suggest that any further hearings or further action by the court was either contemplated or necessary for the divorce to be granted: there was no “contemplation that a further order [was to] be issued or that anything more [was to] be done.” Id. at 712 , 646 A.2d at 371 (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41-42 , 566 A.2d 767 (1989)).

Although the trial court’s statement, standing alone, might not indicate that the court intended to render a divorce judgment at that time, the trial judge further noted he was reserving on marital property and other issues. If the court did not intend to render the judgment of divorce on [September 24, 1993], there would have been no reason for the court, at that time, to reserve the power to make a marital property distribution. We find that the reservation of the power to rule on the marital property issues is strong evidence that the court intended to grant [Ms. Scott a divorce] on [September 24, 1993]. We additionally note that both the court and the parties themselves expressly referred to [September 24, 1993] as the date of divorce during later proceedings---- Davis, 335 Md. at 712 , 646 A.2d at 371 .

As indicated supra, both parties noted, in their memoranda, that the divorce was granted on September 24, 1993. Similarly, in its opinion and order, the trial court acknowledged that it orally granted the parties a divorce on September 24, 1993. The docket entry also reflects that the divorce was granted on September 24, ⁵¹¹ 1993. Based on the record, we conclude that the court properly rendered a judgment of divorce on September 24, 1993.

We note, however, the Court of Appeals’ statement that [w]hen a judgment is rendered orally, the court must take special care to ensure that its remarks clearly indicate whether a judgment is presently being rendered.... [Although the Maryland Rules plainly permit the oral rendition of judgments, opportunities for error and confusion may be minimized if judgments are rendered in writing!'.] Davis, 335 Md. at 714 , 646 A.2d at 372 . Next, we determine whether the judgment was properly entered on the record on that date. Rule 2-601 provides that “the clerk shall enter the judgment as directed by the court,” by making a record of it in writing on the file jacket, on a docket within the file, or in a docket book. Rule 2—601(a), (b).

In the case sub judice, the clerk made an entry on the docket that a divorce was granted; however, the trial court did not make any explicit statement directing the clerk to do so. “A court’s failure[, however,] to utter the words ‘The clerk shall enter the judgment on the docket’ does not preclude a finding that a judgment has been properly entered by the clerk.” Davis, 335 Md. at 716 , 646 A.2d at 373 . We hold, therefore, that the judgment of absolute divorce granted by the trial court to Wife on the grounds of desertion by Husband was both rendered and entered on September 24, 1993. LA Alimony Husband argues that alimony was improperly granted to Wife. Relying on Speropulos v. Speropulos, 97 Md.App. 613 , 631 A.2d 514 (1993), Husband contends that, when the trial court granted the divorce, the court only reserved the issue of marital property, and therefore, did not retain jurisdiction over the issue of alimony.

We disagree. “In Maryland, the right to claim alimony is ‘extinguished at the time of the severance of the marital relationship.’ ” Id. at 617 , 631 A.2d 514 (quoting Altman v. Altman, 282 Md. 483, 490 , 386 A.2d 766 (1978)). If a trial court fails to ⁵¹² reserve the right to award alimony, it cannot subsequently make such an award. Id. In Speropulos , the circuit court granted Mr. Speropulos a divorce, and reserved jurisdiction over “all property issues including monetary award, if any ... for future determination.” Id.

The trial court “did not award alimony, reserve jurisdiction over the issue of alimony in specific terms, or utilize sufficiently broad terminology to reserve alimony, such as ‘this court shall have continuing jurisdiction in these proceedings.’ ” Id., 97 Md.App. at 617-18 , 631 A.2d 514 (quoting Flood v. Flood, 16 Md.App. 280, 286 , 295 A.2d 784 (1972), modified on other grounds, 24 Md.App. 395 , 330 A.2d 715 (1975)). We held “that a reservation as to ‘all property issues’ [was] insufficient to retain jurisdiction over the issue of alimony....” Id., 97 Md.App. at 618 , 631 A.2d 514 . In the case sub judice, however, we can conclude that it was understood that the trial court was reserving jurisdiction over alimony. Husband, in his opening statement during the hearing, acknowledged that “[essentially our argument will be the alimony issue.” At the conclusion of the first day of the hearing, the trial court, and counsel for both parties, agreed to get a corroborating witness ... on the divorce, [to] grant the divorce today on the record, that would value the marital property as of today and then ... give ninety days to reschedule and come back and take ... testimony on the value and the balance of the testimony and that will wrap it up.

(Emphasis added). Moreover, when the hearing continued on September 29, 1993, the following dialogue ensued during the direct examination of Husband: Q: Would you briefly describe the circumstance of your separation? [WIFE’S ATTORNEY]: Your Honor, I question the relevance since the judgement of divorce has been entered on the grounds of desertion. [THE COURT]: But you’re asking for alimony. [WIFE’S ATTORNEY]: Yes, sir. ⁵¹³ (Emphasis added). Unlike the husband in Speropulos , Husband in the case sub judice acquiesced to the court’s authority to award alimony. Husband did not object during trial when the court made it clear that it was retaining jurisdiction over the alimony issue.

Both parties, in their post-trial memoranda, discussed the amount of alimony to be awarded. Husband did not question whether it was improper for the trial court to award alimony in the first instance. All parties acted, throughout this entire proceeding, as if alimony were reserved. Although the trial court did not make the specific statement(s) that Husband contends Speropulos requires, we hold that it was not necessary for the trial court to do so; it was clearly understood that the court’s jurisdiction over alimony was reserved.

Because, infra, we vacate the monetary award, it is necessary that we vacate the alimony award as well. This is because “any significant change in the monetary award will require the court to reassess its alimony award.” Melrod v. Melrod, 83 Md.App. 180, 195 , 574 A.2d 1 (1990); Md.Fam.Law Code Ann., § 8-205(b)(9) (Supp.1994). Wife, in arguing that alimony was not extinguished, contended that the trial court only granted a limited divorce, and not an absolute divorce, on the ground of desertion. Because of some of the issues that the parties raise, as well as the torturous path that this case has taken, we shall address this argument.

A trial court may decree an absolute divorce on the ground of desertion if the desertion has continued for twelve months, without interruption, before the filing of the application for divorce; the desertion is deliberate and final; and there is no reasonable expectation of reconciliation. Md. Fam.Law Code Ann., § 7-103(a)(2) (1991). Wife, in her amended complaint, asked for an absolute divorce on the ground of desertion. She alleged, in her complaint, grounds sufficient to support her accusation of desertion in accordance with the statutory requirements of § 7-103(a)(2) (all statutory references are to the Family Law Article).

The record before us supports Wife’s contention that Husband deserted her. The corroboration required in a contested divorce case need only be slight. Colburn v. Colburn, 15 Md.App. 503, 512 , 292 ⁵¹⁴ A.2d 121 (1972). Moreover, it is clear that, under Davis v. Davis, supra, the trial court intended that an absolute divorce be granted.

Based on the record and the trial court’s actions, the trial judge granted Wife a judgment of absolute divorce on the ground of desertion by Husband. I.B. Indefinite Alimony The trial court granted Wife alimony in the amount of $100 per week for five years. Wife contends that, “[u]nder the facts of this case it was error for the Court to limit alimony to five years.” Wife argues that she should have been awarded indefinite alimony “because the ‘respective standards of living of the parties will be unconscionably disparate.’ ” Although, in her amended complaint for divorce, Wife did not request indefinite alimony, “[w]e know of no law that requires the specific term ‘indefinite’ to be included in a prayer for alimony in order for it to be considered.” Cousin v. Cousin, 97 Md.App. 506, 519 , 631 A.2d 119 (1993). This Court has affirmed grants of indefinite alimony, and refusals to award indefinite alimony, where a variety of disparities in income were projected.

See Rock v. Rock, 86 Md.App. 598, 612 , 587 A.2d 1133 (1991). “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.” Id. In the case sub judice, Wife’s salary is $27,500 and Husband’s salary is $72,000. The trial court, however, granted' Wife, inter alia, a monetary award in the amount of $100,000 and use and possession of the family home, ordered that Husband pay Wife $1,209.60 per month in child support, and awarded Wife an interest in Husband’s pension. Wife is young and healthy and has a ten-year career with the University of Maryland, a vested pension, and a Master’s Degree.

We hold that the trial court did not abuse its discretion in failing to award Wife indefinite alimony. ⁵¹⁵ II.A. Monetary Award Computation Method Husband contests the propriety of the $100,000 monetary award given to Wife. Because the trial court erred, we shall vacate the award and remand for further proceedings. Maryland law requires that, when establishing a monetary award, the trial court (1) characterize all property owned by the parties, however titled, as either marital or nonmarital, (2) then determine the value of all marital property, and (3) assign to each spouse the value of his or her nonmarital property and make an equitable distribution of the value of the marital property between the spouses. Noffsinger v. Noffsinger, 95 Md.App. 265, 281 , 620 A.2d 415 , cert. denied, 331 Md. 197 , 627 A.2d 539 (1993).

Husband first asserts that the trial court erred in adding the $50,000 worth of