Shih Ping Li v. Tzu Lee

WRIGHT, J. This case arises out of the Circuit Court of Montgomery County’s denial of appellant, Shih Ping Li’s (“Husband”), motions to set aside the settlement agreements he entered with appellee, Tzu “Cindy” Lee (“Wife”), in 2005 and 2008. On April 19, 2010, the circuit court held a hearing on Husband’s Motion to Set Aside the First and Second Agreements (“Motion to Set Aside”). The circuit court ruled that the agreements were valid because they were not unconscionable and no confidential relationship existed between Husband and Wife or between the parties and the attorney who represented ⁷⁹ Wife in preparing the agreements. The agreements were subsequently incorporated, but not merged, into the parties’ Judgment for Absolute Divorce.

Husband filed a timely appeal from the circuit court’s denial of his Motion to Set Aside. While that appeal was pending, Husband filed a Motion to Revise on October 14, 2011, seeking to have the agreements invalidated. The first appeal was stayed and the circuit court was instructed to consider Husband’s Motion to Revise. On December 27, 2011, the circuit court denied Husband’s Motion to Revise and on January 24, 2012, Husband noted an appeal from that denial.

On October 9, 2012, the appeals were consolidated. Questions Presented Husband presents several questions for our review, 1 which we have consolidated and rephrased as follows: ⁸⁰ 1. Did the trial court err in determining that no confidential relationships existed and the Agreements were valid? 2. Did the trial court err or abuse its discretion in denying Husband’s Motion to Revise?

For the reasons that follow, we find no error or abuse of discretion and affirm the circuit court’s judgments. Facts and Procedural History Husband and Wife met in Taiwan in 1977 and had a brief romantic relationship. Both subsequently married other partners and had children. The parties rekindled their romance in approximately 1989 or 1990, when both were still married to their respective spouses and Wife was living in Toronto, Canada.

Husband divorced his first wife in 2002, with a Voluntary Separation and Property Settlement Agreement dated October 17, 2001, incorporated into the Judgment of Absolute Divorce. Pursuant to that agreement, Husband paid $800 per month in child support, twenty percent of exceptional expenses, maintained coverage for his two minor children on his health insurance, and was responsible for a proportion of the college expenses for his two children. 2 When Wife divorced her first husband in 1994, according to an agreement executed on December 29, 1993, she received no monetary support for herself or her daughter. When Husband and Wife were contemplating marriage, Husband was employed by the United States Government earning $108,985 per year. 3 Wife was employed with a private ⁸¹ company as an accountant earning approximately $65,000. Before marrying, Husband and Wife sought to change Wife’s immigration status and obtain Lawful Permanent Resident (“LPR”) status for her.

To do so, they sought the assistance of Yu Gu, an immigration attorney, recommended by one of Wife’s work friends. In 2002, Gu prepared an application for adjustment of permanent resident status for Wife, which included the 1-130 form, “Petition for Alien Relative,” and an 1-864 form, the “Affidavit of Support.” Husband was designated as the petitioner and Wife was the beneficiary. In order to prepare the forms, Husband, without physically meeting or communicating with Gu, provided his 2002 tax return information as well as bank statements documenting a joint account for Husband and Wife. Gu prepared and submitted the application forms to the United States Citizenship and Immigration Services (“US-CIS”) on June 30, 2003.

Wife’s application was ultimately approved on April 12, 2005, and she was granted conditional permanent resident status based on her marriage to Husband, a naturalized citizen. 4 ⁸² Husband and Wife were married to each other on June 12, 2003. After marrying, the parties decided to sell their premarital homes and purchase a marital home together. The parties purchased a home at 508 Oak Knoll Terrace, Rockville, Maryland (“Oak Knoll house”), with Husband contributing $100,000 from the sale of his former home and Wife contributing $82,000 from the sale of hers. The parties incurred a joint mortgage payment of $6,000 on the Oak Knoll house with Husband contributing $4,000 per month and Wife contributing $2,000 per month toward the payment.

The parties made payments out of a joint checking account. On the mortgage application, Husband listed his employer as the United States Department of Homeland Security (“DHS”), with a monthly income of $11,675, or a yearly income of approximately $140,100. Husband’s W-2 tax form from 2004 listed his employer as the United States Department of Transportation and his earnings as $125,689.36. In 2005, the parties decided to downsize their residence and contracted to build a new home in Frederick, Maryland, located at 4003 Bowling Green Lane (the “Frederick house”).

Later the same year, Wife discovered that Husband had engaged in an affair resulting in the parties discussing divorce. The parties decided to prepare a separation agreement (“the First Agreement”) in part to guarantee that Wife, having sold her former home, would continue to have a residence. Initially, the parties considered trying to repurchase Wife’s Gaithersburg townhouse but the price had increased too much. The parties agreed to title the Frederick house in Wife’s name only and that Husband would continue to contribute the same amount ($4,000) toward the mortgage expense.

Wife contacted Gu to prepare an agreement and told Husband that Gu would be her representative. Husband was not contacted by Gu during the preparation of the agreement and Husband never met Gu. Gu prepared the First Agreement ⁸³ according to the terms indicated by Wife. Wife presented the First Agreement drafted by Gu to Husband in the fail of 2005.

Husband reviewed the draft First Agreement and edited it by adding a provision to reduce his obligation in the event he lost his job or otherwise suffered a salary reduction and also by capping his obligation at $4,000 regardless of whether his salary increased. The First Agreement provided for the $4,000 payment to be made as indefinite, non-modifiable alimony, with the payment to be applied toward the mortgage. The First Agreement contained a provision stating that Gu had represented only Wife in drafting the agreement and advised Husband to seek independent counsel. The parties reconciled after executing the First Agreement.

They sold the Oak Knoll house and applied the proceeds of the sale toward the Frederick house. Both parties moved into the Frederick house. In July 2006, Husband began living with his mother in Rockville, Maryland, during the weekdays and he returned to the Frederick house on weekends. In 2007, the parties petitioned to have the conditions removed from Wife’s immigration status.

Gu was again used to prepare the necessary paperwork and she filed an 1-751 form, or “Petition to Remove Condition.” To facilitate preparation of the petition, Wife provided Gu with the parties’ joint tax returns 5 and other joint records, including auto insurance, health insurance, home insurance, bank account statements, and mortgage statements. Husband had no contact with Gu during the preparation of this petition. In mid- to late-2007, Wife discovered Husband had engaged in another affair causing the parties to again discuss divorce. Husband was now employed by the Comptroller of the Currency earning $171,332, not including benefits.

Husband’s two children were now adults, and his support obligations for them were nearing conclusion. As before, Wife contacted Gu to draft a new separation agreement (“Second Agreement”). Gu did so, according to terms provided by Wife, e-mailed the draft to ⁸⁴ Wife, and Wife then e-mailed the draft to Husband in the Fall of 2007. The parties discussed the terms of the new agreement, ultimately negotiating terms different from the original draft.

Negotiated changes included limiting the alimony as nontaxable to Wife and non-deductible to Husband to a three-year term instead of indefinitely. The parties exchanged marked-up versions of the Second Agreement with Wife providing these to Gu to make the changes. Gu did so, and Wife forwarded the amended Second Agreement to Husband. On January 31, 2008, Husband e-mailed Wife stating that he thought the Second Agreement, not yet executed, was unfair to him and he wanted to rethink it.

On February 4, 2008, Husband returned a marked-up version of the Second Agreement to Wife. In an e-mail to Wife, Husband stated: I have made the changes that we’ve agreed: 1. Made the non-taxable alimony period to be 3 years after separation; 2. Provide life insurance of $300K to you for 3 years after separation; and 3.

Agreed to pay any tax liability for you for the nontaxable alimony payments; I hope to make this easy for you and Gu to review. Let me know what changes you would want. I will get the court paperwork to find out what I have to file. On February 5, 2008, Husband e-mailed Wife a clean copy of the Second Agreement with one additional change.

Wife agreed to the changes made by Husband and Gu prepared the final document. Gu e-mailed the final document to Wife, who forwarded it to Husband. On February 18, 2008, the parties met in a parking lot near Wife’s work and went together to Falls Grove Chase Bank, where they signed and notarized the Second Agreement. ⁸⁵ In December of 2008, Husband and Wife exchanged a series of e-mails. On December 17, Wife e-mailed Husband stating in part, “I got your message and right away responded you [sic].

I believed I have clearly explained why I don’t want to deal with any changes any more.” Husband responded on December 18, 2008, stating: I understand your decision. We are both trying to move on with our lives. There are no winners here. I have helped you to get through the U.S. citizenship process so you can be working in Government jobs now (as opposed to 2 years later).

I think we could follow the current understanding as summarized below: (a) Ping to continue to provide 3 years of tax-free alimony (@$4000 per month) to Cindy for 2008, 2009, and 2010; (b) From 2011 and on, Ping will provide the $4000 monthly alimony as taxable income to Cindy; (c) Ping and Cindy to file as “Married and Filing Jointly” for Tax Years 2008, 2009, and 1010[sic]; (d) Ping to file for divorce in October of 2009 (after 12 months of formal separation), the divorce proceedings will likely be concluded in early 2010; (e) Ping and Cindy to each file their own tax returns for tax year 2011 and after; (f) Cindy retains sole ownership of the 4003 Bowling Green Lane property; and (g) Ping will stay on the current primary mortgage for the 4003 Bowling Green Lane property for 2008, 2009, and 2010. Starting in 2011, Cindy will consider options to remove Ping from the primary mortgage without impacting Cindy’s ability to maintain ownership of the property. These are summaries done in good faith and not meant to change your rights or ownership. Wife responded on December 18, 2008, stating, “Ping, it is actually contained in our agreement and I have no problem to ⁸⁶ follow through.” In a later e-mail the same day, Wife elaborated: Ping, let me make more clear that we have legal agreement binding us and I will follow through it.

Anything beyond our agreement that is totally out of my control. Whatever I entitled from our marriage I am appreciated. I got my county job that is nothing to do with my citizenship since county employee is not required U.S. citizenship. I am thankful your help to update my resume.

Please don’t fight for any non existing battle and I always consider any possible release between us. Please take easy and take care, we all have tough time to overcome. Husband responded, “Sorry. You’re right.

I will follow what was signed. More words just get more misunderstanding.” On August 14, 2009, represented by his current counsel, Husband filed a Complaint for Judgment of Absolute Divorce and for Other Appropriate Relief (“Complaint for Divorce”), in which he prayed for a divorce and to have “all Agreements between the parties be voided and set aside as unenforceable.” In Wife’s Answer to Husband’s Complaint for Divorce, she prayed “[t]hat the terms and provisions of the Marital Settlement Agreement between the parties dated February 8, 2008 be validated____and made a part of and incorporated in the Judgment of Absolute Divorce, but not merged thereinf.]” On September 17, 2009, Husband filed his Motion to Set Aside arguing that the marital settlement agreements were “unconscionable, unenforceable, were entered into by [Husband] without full benefit of counsel and at a time when the parties were still within a confidential relationship and while [Husband] was susceptible to being taken advantage of, and is (or should be) of no force and effect.” In Husband’s Motion to Set Aside, he stated: “That at the time [Husband] executed the Marital Settlement Agreements, [Husband] was unrepresented. [Wife] had an attorney prepare the Agreements.” Wife responded that the Agreements were not unconscionable, ⁸⁷ no confidential relationship existed, and Husband had been advised to seek independent counsel. On April 19, 2010, a hearing was held on Husband’s Motion to Set Aside. The circuit court heard testimony from both parties and Gu.

Gu testified that she did not believe that she represented Husband in the immigration matters or in the preparation of the Agreements. Gu had been subpoenaed to bring her records pertaining to the immigration petitions but she testified that she did not possess the originals, had recreated the forms on her computer to simulate what was filed, and could not verify that they accurately represented what she filed with USCIS. The circuit court found that no attorney-client relationship or confidential relationship existed between Husband and Gu. In its oral opinion, the circuit court stated: I find, as a first level fact, that both the plaintiff, on the one hand, and the defendant, on the other hand, are sophisticated persons.

Both of them have advanced degrees, not only college degrees, but master degrees. Although the plaintiff is not on the business side of his agency, he is an exceptionally highly-educated, well-spoken, and sophisticated individual. While I do agree with him that only a government contracting officer can obligate the United States Treasury to pay money, he is unduly modest in his description of his level of authority, and in his business acumen. The Court finds that lawyer Yu Gu never, as a first level fact, represented the plaintiff; that objectively, from an objective point of view, lawyer Gu was never the lawyer for the plaintiff; and that the Court does not credit the plaintiff’s testimony that subjectively, he honestly believed that Ms. Gu was his lawyer.

The, this case is most unlike the Hale [v. Hale, 74 Md.App. 555 , 539 A.2d 247 (1988)] case. Attorney Gu served a limited function in the INS matters. She was not, quote/unquote, “the family lawyer.” She was not, quote/unquote, ⁸⁸ “the family business lawyer,” as was Mr. Belsky in the Hale case, with which I am most familiar. The Court finds that both agreements were fully, and carefully, and thoroughly negotiated between the plaintiff, on the one hand, and the defendant, on the other hand.

This is not even close to a, not only a take-it-or-leave-it situation, but it is clear, and I find that the negotiations between the parties for both the October 18, 2005, agreement, and the February 8th, 2008, agreement, were intense, thorough, thoughtful, and was a good-faith, give-and-take between the parties. The Court finds that the reason the plaintiff did not seek or obtain the assistance of counsel was very simple. He didn’t want to spend the money to do so. Nobody, I find, dissuaded him, in any way, shape, or form, from seeking counsel.

Nobody, I find, suggested to him, in any way, shape, or form, that he didn’t need counsel. I find that the [sic] fully knew he could utilize counsel. But as I said, I find he simply didn’t want to pay for it. That’s his right.

Nobody can be compelled to hire a lawyer. But one fails to avail themselves of the resources of counsel, frankly, at their peril. Unlike Judge Whitfill in Williams [v. Williams, 306 Md. 332 , 508 A.2d 985 (1986) ], and Judge Smith in Hale, I am not shocked by the terms and provisions of either the October 18, 2005, or the February 8, 2008, contracts. While it very well may be that, at the conclusion of a fully-litigated Phase 2 merits, Family Law case, the plaintiff would not be paying indefinite alimony at all, would not be paying alimony to the tune of $4,000, would not be paying non-modifiable alimony, the Court finds that he bargained for these very terms.

He elected to preserve his capital, to preserve his pension funds, his bank accounts. So the notion that the plaintiff got nothing from the deal is simply legally not correct. Not only did he buy the time ⁸⁹ and the stream of payments, he purchased appropriately— until he decided he didn’t like the deal — he purchased the absence of litigation; he purchased the absence of discovery; he purchased the absence of a trial; he purchased the absence of the attorneys fees; he purchased the absence, to be blunt, of the aggravation and pain that comes from this sort of litigation, or any litigation. Now, he has decided later, after reflecting, that he doesn’t like his deal.

So now, we have the litigation. But that was his choice. I find that this is simply, and respectfully, a case of buyer’s remorse. He doesn’t, upon reflection, he doesn’t like the deal he cut for himself, even though, I must say, it was cut over a substantial period of time.

So, it is not, I find, procedurally unconscionable. It is not, I find, substantively unconscionable. Consequently, the claim that a court in equity should set aside either or both of the contracts because of unconscionability is denied. As an initial matter, the Court finds that the plaintiff has failed to carry his initial burden of proof, production, and persuasion to show the existence, factually, of a confidential relationship.

If anything, it was the plaintiff who had the power in the relationship, and was the dominant party, and not the defendant. There is legally insufficient evidence, in my judgment, of duress, coercion, undue influence, fraud. Period. I find that he had an opportunity to seek counsel but he elected [not] to do so, solely for pecuniary reasons.

He didn’t want to spend the money. I find that the defendant, in no way, shape, or form, dissuaded him from seeking counsel. ⁹⁰ I find that, at any point between February of 2005, through and including the signing of the final agreement on February 18th, 2008, in front of the notary public at the bank, nobody stopped him from having it looked at by a lawyer. He simply elected not to do so. It’s not the defendant’s fault, responsibility, or obligation.

So although the plaintiff may not have obtained independent legal advice before signing either of the contracts, he was neither dissuaded nor precluded from doing so. I note, as well, he did not sign either of these agreements immediately upon presentment, but both were the product of extended and substantial negotiations. Since I find that there are no excusing factors, such as fraud, undue influence, coercion, attorney influence not present here, one having the capacity to understand a written document, and who reads it, and I find that the plaintiff, in this case, read it and understood it; or as the Court of Appeals said, “Without reading it or having it read to them, to him, who signs it is bound by his signature.”[ 6 ] Even if, assuming without deciding that the plaintiff had any — I’m sorry — that the defendant had any burden, I am persuaded that she’s carried her burden of proof, production, and persuasion to persuade me, as a first level of fact, that both agreements, under the circumstances, were fair and reasonable to all parties, both represented a compromise and neither side got everything they wanted. And I ⁹¹ suspect, in a full-bore litigation between the plaintiff, on the one hand, and the defendant, on the other, it would be hammer and tongs.

But it’s not going to be because these agreements are to be enforced. On April 22, 2010, Husband’s Motion to Set Aside was denied. On May 7, 2010, Husband filed a Supplemental Complaint for Judgment of Absolute Divorce and For Other Appropriate Relief. On May 20, 2010, the parties were granted an absolute divorce and the Agreements were incorporated, but not merged, into the judgment.

Husband noted an appeal of the judgment on June 11, 2010. 7 While Husband’s appeal was pending, he filed a Freedom of Information Act (“FOIA”) request with the USCIS National Records Center on April 4, 2011, seeking copies of the 1-130 and 1-864 petitions filed by Gu. The documentation provided by USCIS included G-28 forms entitled “Notice of Entry of Appearance,” which listed Gu as the representative for both parties, and were signed by Gu and both parties in 2003 and 2007. A cover letter on Gu’s law firm’s letterhead was also included and stated that in 2007, Gu was submitting the 1-130 and 1-485 forms “for Appellee Tzu Lee on behalf of Mr. Shiping Li.” The copies of the original documents from USCIS were handwritten on the standardized forms. On October 14, 2011, after receiving the documentation from USCIS, Husband filed a Motion to Revise on the ground of fraud and requested a hearing on his motion.

Wife filed a response opposing the motion, and Husband filed a reply to Wife’s response. On October 18, 2011, Husband filed a Motion to Stay Appeal and Oral Argument which was granted on November 21, 2011. On December 22, 2011, the circuit court denied Husband’s Motion to Revise. Husband noted an appeal of the denial on January 24, 2012. 8 On June 15, 2012, a Motion to Lift Stay and Consolidate Appeal was filed; the motion was granted on October 9, 2012. ⁹² On November 30, 2012, Husband filed a Motion to Supplement the Record.

On December 12, 2012, Wife filed her opposition. On December 17, 2012, Wife filed a Motion to Dismiss Husband’s Motion to Supplement the Record. These motions will be addressed below. Additional facts will be included in the discussion as necessary.

Motions I. Wife’s Motion to Dismiss Appeal No. 727, September Term, 2010 This Court generally will not dismiss an appeal unless the appellee is prejudiced by appellant’s noncompliance with the Maryland Rules. See Rogers v. Baker, 77 Md.App. 199, 204-05 , 549 A.2d 1153 (1988). Moreover, dismissal of an appeal is a discretionary matter. This Court has declined to exercise that discretion even when noncompliance with the Maryland Rules warrants dismissal.

See Leavy v. Am. Fed. Sav. Bank, 136 Md.App. 181, 191 , 764 A.2d 366 (2000) (declining to exercise discretion based on decision to affirm trial court and assessing costs against appellant for preparation costs incurred by appellee). Wife filed a Motion to Dismiss Husband’s first appeal with her brief submitted to this Court on July 25, 2011.

In her motion, Wife argued that Husband’s brief did not comply with Md. Rules 8-503(d) and 8-504. Maryland Rule 8-503(d) states: d) Length. Except as otherwise provided in section (e) of this Rule or with permission of the Court, a brief of the appellant and appellee shall not exceed 35 pages in the Court of Special Appeals or 50 pages in the Court of Appeals. This limitation does not apply to (1) the table of contents and citations required by Rule 8-504(a)(l); (2) the citation and text required by Rule 8-504(a)(7); and a motion to dismiss and argument supporting or opposing the motion.

Except with permission of the Court, any portion of a brief pertaining to a motion to dismiss shall not exceed an additional ten pages in the Court of Special Appeals or 25 ⁹³ pages in the Court of Appeals. Any reply brief filed by the appellant shall not exceed 15 pages in the Court of Special Appeals or 25 pages in the Court of Appeals. Wife argues that Husband’s brief exceeds the maximum number of pages by two pages. Our review of the docket reveals that Husband filed a Nunc Pro Tunc Motion for Leave to File Brief Exceeding Page Limit with this Court on August 1, 2011, and his motion was granted on September 21, 2011.

Therefore, there is no violation of Maryland Rule 8-503(d). Maryland Rule 8-504, entitled “Contents of brief’ states in pertinent part: (a) Contents. A brief shall comply with the requirements of Rule 8-112 and include the following items in the order listed: (1) A table of contents and a table of citations of cases, constitutional provisions, statutes, ordinances, rules, and regulations, with cases alphabetically arranged. When a reported Maryland case is cited, the citation shall include a reference to the official Report.

(2) A brief statement of the case, indicating the nature of the case, the course of the proceedings, and the disposition in the lower court, except that the appellee’s brief shall not contain a statement of the case unless the appellee disagrees with the statement in the appellant’s brief. (3) A statement of the questions presented, separately numbered, indicating the legal propositions involved and the questions of fact at issue expressed in the terms and circumstances of the case without unnecessary detail. (4) A clear concise statement of the facts material to a determination of the questions presented, except that the appellee’s brief shall contain a statement of only those additional facts necessary to correct or amplify the statement in the appellant’s brief. Reference shall be made to the pages of the record extract supporting the assertions.

If pursuant to these rules or by leave of court a record extract is not filed, reference shall be made to the pages of ⁹⁴ the record or to the transcript of testimony as contained in the record. Wife argues that Husband’s Statement of Facts contains insufficient references to the record extract along with statements unsupported by evidence produced at trial, and that Husband’s brief failed to contain a statement of the font and type size used in the brief. On August 1, 2011, Husband filed a Statement as to Font and Type size which this Court accepted. Regarding the insufficiency of Husband’s citations, we find that Wife suffered no prejudice by Husband’s failure.

As Husband bears the burden of proof in the appeal, his failure to call our attention to the relevant parts of the record is to his detriment. See, e.g., Davis v. Davis, 97 Md.App. 1, 24 , 627 A.2d 17 (1993) (citing Md. Rule 8-501(1)). Accordingly, Wife’s Motion to Dismiss Appeal No. 727 is denied.

II

Husband’s Motion to Supplement the Record and Wife’s Motion to Dismiss [Husband’s] Motion to Supplement the Record Husband filed his motion “pursuant to Md. Rule 8-414(a)” in an effort to have this Court consider a public reprimand issued to Gu by the Maryland Attorney Grievance Commission after Husband’s Motion to Revise was denied. Maryland Rule 8-414(a) states: “Authority of appellate court. On motion or on its own initiative, the appellate court may order that an error or omission in the record be corrected.” Husband argues in his reply to Wife’s Motion to Dismiss that the reprimand of Gu did not exist at the time of the hearing and, therefore, could not have been presented to the circuit court to use in its determination that Gu had an attorney-client relationship with Husband and Wife in the immigration matters. Husband is correct.

However, the reprimand emanates from other information, also omitted from the trial record, that was in existence at the time of the hearing — the original immigration forms submitted by Gu to USCIS and obtained by Husband from a FOIA request. The original forms could have been obtained by Husband prior to ⁹⁵ the hearing. The immigration forms are relied upon by Husband in his argument appealing the circuit court’s denial of his Motion to Revise. Wife is correct that under a plain language reading, Maryland Rule 8-414 does not provide for evidence created after a record is closed by the trial court to be considered.

Beyond Sys. v. Realtime Gaming Holding Co., LLC, 388 Md. 1 , 11 n. 9, 878 A.2d 567 (2005) (denying motion to supplement the record “[bjecause the evidence at issue was not erroneously omitted from the record transmitted from the Circuit Court, and [appellant] does not seek to correct any error contained in the record”); Campbell v. State, 37 Md.App. 89 , 97 n. 5, 376 A.2d 866 (1977) (denying motion to supplement the record with docket entries from a separate case involving a key witness but taking judicial notice of the official records); but see In re Adoption of Sean M., 204 Md.App. 724 , 732 n. 5, 42 A.3d 722 (2012) (granting a motion to supplement the record when the transcript of the contested hearing was originally omitted from the record for the appeal); Bethesda Title & Escrow, LLC v. Gochnour, 197 Md.App. 450 , 14 A.3d 670 (2011) (granting motion to supplement the record regarding filings in circuit court on same matter). Husband cites no case law to the contrary, and we are unable to discern any. “Only in exceptional cases, when the requirements of logic are overcome by the demands of justice, is it proper to exercise the discretionary power of an appellate court in this State to look to a proceeding outside the record of the case before it.” Dashiell v. Meeks, 396 Md. 149, 176-77 , 913 A.2d 10 (2006) (holding that this Court did not abuse its discretion in declining to review the record from a divorce action that gave rise to a malpractice action). Husband does not ask us to take judicial notice of the public reprimand, nor does he state that his case is exceptional, warranting a review of evidence outside the record. As we discuss below, the existence of an attorney-client relationship between Husband and Gu in the immigration matter is not dispositive of the appeal, and therefore, we decline to exercise our discretion and take ⁹⁶ judicial notice of the evidence not in the record.

Further, we deny Husband’s motion on the basis that Maryland Rule 8-414(a) does not permit supplementation of an appellate record with evidence not presented to the trial court. Discussion The two appeals, No. 727 and No. 2622, although briefed separately were consolidated on motion and argued together. Therefore, the issues are discussed below in the order that they were disposed of by the circuit court. I. Standard of Review We review the circuit court’s factual findings under a clearly erroneous standard and its legal conclusions de novo.

If any competent material evidence exists in support of the trial court’s factual findings, those findings cannot be held to be clearly erroneous. When reviewing mixed questions of law and fact, we will affirm the trial court’s judgment when we cannot say that its evidentiary findings were clearly erroneous, and we find no error in that court’s application of the law. On the other hand, regarding pure questions of law, the trial court enjoys no deferential appellate review, and the appellate court must apply the law as it discerns it to be. Fischbach v. Fischbach, 187 Md.App. 61, 88-89 , 975 A.2d 333 (2009) (internal citations and quotation marks omitted).

We review the trial court’s denial of Husband’s Motion to Revise for an abuse of discretion. An abuse of discretion occurs where “no reasonable person would take the view adopted by the [trial] court” or the trial court “acts without any guiding rules or principles.” Das v. Das, 133 Md.App. 1, 15-16 , 754 A.2d 441 (2000) (citing North v. North, 102 Md.App. 1, 13-14 , 648 A.2d 1025 (1994)). An abuse of discretion constitutes “an untenable judicial act that defies reason and works an injustice.” Id. “We do not disturb a trial court’s discretionary ruling simply because we would not have made the same ruling.” Abrishamian v. Barbely, 188 Md. ⁹⁷ App. 334, 342 , 981 A.2d 797 (2009) (citing King v. State, 407 Md. 682, 697 , 967 A.2d 790 (2009)); Smith v. Luber, 165 Md.App. 458, 467 , 885 A.2d 894 (2005) (trial judge is afforded a “wide latitude”); Das, 133 Md.App. at 16 , 754 A.2d 441 (citing Wormwood v. Batching Syss., Inc., 124 Md.App. 695, 700 , 723 A.2d 568 (1999)). Further, [BJecause the exercise of discretion under these circumstances depends so heavily upon the unique opportunity the trial judge has to closely observe the entire trial, complete with nuances, inflections, and impressions never to be gained from a cold record, it is a discretion that will rarely, if ever, be disturbed on appeal.

Titan Custom Cabinet, Inc. v. Advance Contracting, Inc., 178 Md.App. 209, 231 , 941 A.2d 547 (2008) (quoting Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 59, 612 A.2d 1294 (1992)). As this Court stated in Steinhoff v. Sommerfelt, 144 Md.App. 463, 484-85 , 798 A.2d 1195 (2002): With respect to the denial of a Motion to Alter or Amend, if that should be what is before us, the discretion of the trial judge is more than broad; it is virtually without limit. What is, in effect, a post-trial motion to reconsider is not a time machine in which to travel back to a recently concluded trial in order to try the case better with hindsight. The trial judge has boundless discretion not to indulge this all-too-natural desire to raise issues after the fact that could have been raised earlier but were not or to make objections after the fact that could have been earlier but were not.

Losers do not enjoy carte blanche, through post-trial motions, to replay the game as a matter of right. That a party, arguendo, should have prevailed on the merits at trial by no means implies that he should similarly prevail on a post-trial motion to reconsider the merits. A decision on the merits, for instance, might be clearly right or wrong. A decision not to revisit the merits is broadly discretionary.

The appellant’s burden in the latter case is overlaid with an additional layer of persuasion. Above and beyond arguing ⁹⁸ the intrinsic merits of an issue, he must also make a strong case for why a judge, having once decided the merits, should in his broad discretion deign to revisit them.

II

The Enforceability of the Separation Agreements Husband’s argument, while circuitous, is essentially threefold. First, Husband argues that the circuit court did not have necessary facts, or used erroneous facts, to determine that the separation agreements were equitable and that no substantive or procedural unconscionability existed. Second, Husband avers that the circuit court erroneously concluded that no attorney-client relationship existed between Husband and Gu so as to give rise to a confidential relationship between them and shift the burden of proof from Husband to prove that the Agreements are unconscionable and to Wife to prove that the Agreements are facially valid. Third, intertwined with his other arguments, Husband contends that the agreements were procedurally and substantively unconscionable.

Wife counters that the circuit court had sufficient evidence to support its factual findings and correctly applied the law. Wife argues that no confidential relationship existed between the parties or between Husband and Gu and, therefore, the circuit court correctly allocated the burden of proof to Husband to show unconscionability. Wife asserts that the circuit court correctly found that no procedural or substantive unconscionability existed. This Court has had multiple occasions to address the validity of separation agreements.

In Blum v. Blum, 59 Md.App. 584, 602 , 477 A.2d 289 (1984), the Court set forth guidelines for analyzing unconscionability: What the chancellor should have done was to look at the consideration and determine if the terms were so unfair and inequitable as to require that the agreement be set aside. If they were not, and he held they were not, he should then have considered whether there was a confidential relationship; then he should have considered whether there was duress. If he found there was duress, he should next have ⁹⁹ considered (1) whether the conditions precedent to setting aside the agreement had been met, including whether the victim had retained the benefits; (2) whether the contract was thereafter ratified; and (3) whether laches applied. Then and only then should he have decided whether to set aside the agreement!)] Accord Williams, 306 Md. at 342 , 508 A.2d 985 ; Young v. Anne Arundel Cnty., 146 Md.App. 526, 598 , 807 A.2d 651 (2002).

A. “Fairness of the Agreements: Substantive Unconscionability ” The Court of Appeals stated in Walther v. Sovereign Bank that in determining if substantive unconscionability exists, “we must consider whether the terms in the [contract] are so one-sided as to oppress or unfairly surprise an innocent party or whether there exists an egregious imbalance in the obligations and rights imposed by the [contract].” 386 Md. 412, 431 , 872 A.2d 735 (2005) (alterations added). The Court stated that an “exactly even exchange of identical rights and obligations between the two contracting parties before a contract” are not necessary before the contract “will be deemed valid.” Id. at 433 , 872 A.2d 735 . Two prominent cases on unconscionability are Hale, 74 Md.App. 555 , 539 A.2d 247 , and Williams, 306 Md. 332 , 508 A.2d 985 . In both cases, the unrepresented spouse signed a separation agreement believing that doing so would facilitate a reconciliation.

In Hale, however, a confidential relationship existed between the parties, whereas, here one does not. 9 ¹⁰⁰ Notably, in Williams, the Court made clear that because it “was unable to conclude that [the trial court’s] factual findings were clearly erroneous, we are bound by those findings, as was the intermediate appellate court.” 306 Md. at 338 , 508 A.2d 985 . In Williams, the trial court found that agreement shocked the court’s conscience because it provided for the husband to relinquish all interest in marital property and custody of his children, assume all marital debt and obligations, and most importantly, the husband’s weekly obligations under the settlement agreement exceeded his weekly income and he would never had been able to perform under the agreement. Id. at 336-38 , 508 A.2d 985 . In the case sub judice, the circuit court was “not shocked by the terms and provisions of either the October 18, 2005, or the February 8, 2008, contracts.” The court found that Husband had bargained to “preserve his capital, to preserve his pension funds, his bank accounts.” The court also found that Husband had bargained for the right to control the “stream of payments” with the alimony provision.

Unlike in Williams, Husband did not give up all that he had or assume all the marital obligations and he negotiated certain terms, including a downgrade of his payment obligation, should his income decrease and a limitation on the time the payments were non-deductible. The