Steinhoff v. Sommerfelt

CHARLES E. MOYLAN, Jr., Judge (Retired, Specially Assigned). This appeal requires us to take a close look at the time limits prescribed by Maryland Code, Family Law Article, § 8-203 on the designating of marital property and on the sanction, if any, for a violation of those prescribed deadlines. The appellant, Mark Steinhoff, and the appellee, A. Elisabeth Sommerfelt, were divorced by a Judgment of Absolute divorce issued by Judge Raymond Kane, Jr., in the Circuit Court for Howard County on October 12, 2000. On this appeal, the appellant raises the three contentions 1. that Judge Kane erroneously granted a monetary award to the appellee; 2. that Judge Kane erroneously granted counsel fees and costs to the appellee, while failing to rule on the appellant’s request for counsel fees; and ⁴⁶⁷ 3. that Judge Kane earlier erred in granting alimony ;pendente lite to the appellee.

Factual Background The appellant and the appellee were married in Valparaiso, Indiana on October 21, 1972. Three sons were born of the marriage. Eirik, the oldest, born in 1974, had left home by the time of the divorce. The second, Kristoffer, born in 1979, was in his second year at the University of Chicago.

The third, Andreas, born in 1983, was a senior in high school at the time of the trial in this case and turned eighteen on January 8, 2001. The custody of Andreas, while contested early in these protracted proceedings, is not a direct issue on this appeal. Both the appellant and the appellee are medical doctors. The appellant is a graduate of the University of Chicago Medical School and is employed as a tenured professor of pediatrics and public health at the Johns Hopkins University.

The appellee, born in Norway, was also graduated from the University of Chicago School of Medicine, obtained a Master of Science degree in public health from the University of Rochester, and was employed from 1988 to 1999 as a research associate in the Department of International Health at the Johns Hopkins School of Hygiene and Public Health. The parties separated in early May 1997. Andreas, who was 14 at the time of the parties’ separation, remained with appellee in the marital home until November 1997, when he went to live with appellant in a nearby apartment. He experienced difficulties with his parents’ separation and underwent coufiseling and a brief period of hospitalization.

Each of the parties sought custody; an attorney for Andreas was appointed by the court; and the matter was finally resolved with the agreement of all parties three years later, with custody being awarded to the appellant. The appellee continued to work full time until September 1998 and then began a reduced schedule of 80% until her employment was terminated in September 1999. Prior to 1998 she had taken some periods of unpaid leave of absence, ⁴⁶⁸ primarily the three months of November and December 1997 and January 1998. After her separation, she tried unsuccessfully to do some consulting work.

Later testimony in the trial on December 21, 2000 established that the appellee had been treated by a.psychiatrist since 1996 and that the separation and divorce had a profoundly adverse effect on her mental condition and ability to work. She suffered major depression; anxiety disorder; and obsessive compulsive anxiety disorder which, even though treated with medication and psychotherapy, caused her to stop work and, in the opinion of her psychiatrist, would have prevented her return to work in the next year. Pertinent Procedural Background The appellee had requested alimony, both pendente lite and permanent. A master’s pendente lite hearing was held on March 16, 1999, which resulted, on April 20, 1999, in the master’s recommendations 1) that the appellee pay child support in the amount of $536 per month to the appellant and 2) that the appellant pay alimony pendente lite in the amount of $1,500 per month to the appellee. 1 Neither party had made any payments to the date of the master’s hearing, so the master computed the arrearage owed by appellant at $5,676 accounting from June 1998 to April 1999 and using the above child support and alimony figures.

Exceptions were filed to the master’s report by the appellant. A hearing was held by Judge Kane on January 4, 2000. He overruled the exceptions in a written opinion filed on January 14, 2000. On the same day, the court signed the pendente lite order recommended by the master.

The parties on the same date, January 4, 2000, executed an agreement covering child custody, support and visitation, the division of personal property, provisions for the purchase of the marital home by the appellee, creation of a college fund for Andreas, and agreement that the appellant would proceed ⁴⁶⁹ with his divorce action based on two years’ separation. The agreement further provided that the appellee would not be prohibited from seeking alimony, counsel fees, and a marital judgment award based on a division of assets. The judgment of divorce, signed on October 11, 2000, granted the appellant an absolute divorce, awarding him care and custody of Andreas; continuing the respective child support and alimony pendente lite awards; determining the respective arrearages of the parties; and retaining jurisdiction in the court “for determination of alimony, marital property, attorney’s fees and litigation costs, said matters to be heard by the Court within 90 days of the date of this judgment.” The trial of the reserved issues occurred on December 21 and 22, 2000. Between October 12 and December 21 various discovery matters were filed, as well as motions for contempt, all of which were disposed of in Judge Kane’s Memorandum Opinion.

On January 10, 2001, Judge Kane signed an order on the appellee’s motion, consented to by the appellant, extending the time for making the marital property determination to February 9, 2001. Following the issuance, on February 12, of the court’s Opinion and Order, the appellant moved to alter and amend the judgment to permit payment of the monetary award by way of a QDRO. He did not raise any challenge to the fact that the court’s Opinion and Order of February 12 came after the ostensible deadline of February 9 placed by Judge Kane on the extension. The Memorandum Opinion and Order Of February 12, 2001 Judge Kane’s Memorandum Opinion and Order of February 12, 2001, resolved the four areas of remaining contention.

On the subject of alimony, Judge Kane rejected the appellee’s request for indefinite alimony and ordered the appellant to pay rehabilitative alimony of $2,500 a month for a period of one year. ⁴⁷⁰ With respect to the monetary award, Judge Kane found that the appellant’s share of the marital property had a value of $714,213 and the appellee’s share had a value of $331,407. He granted the appellee a monetary award of $191,403, representing one-half of the disparity between the two shares. The appellee had requested various findings of contempt on the part of the appellant. Judge Kane, in effect, upheld four of the appellee’s claims in that regard and rejected two others.

He essentially resolved the contempt issues by adjusting the equities and, in significant measure, by assessing attorney’s fees and costs against the appellant. With respect to attorney’s fees and costs, the appellee had initially requested $38,112.50 in attorney’s fees and costs of $8,222.12. The costs included an expert witness fee of $2,650 and one-half of the fee of the attorney for Andreas. Judge Kane found that the appellee had been justified 1) in pursuing her alimony claim, 2) in litigating the child support and custody proceedings, 3) in enforcing the terms of the parties’ agreement, and 4) in pursuing discovery violations and related contempt claims.

He ordered the appellant to pay to the appellee $45,164.12 for attorney’s fees and costs. The Monetary Award A. The Timeliness of the Marital Property Identification The appellant challenges the monetary award in two regards. His primary contention is that the court lost its authority to make a monetary award because it failed to act within the statutorily prescribed time periods to determine what was marital property. Although it is not ultimately critical to his contention, the appellant falls into the common error of conflating 1) the designation of marital property with 2) the granting of a monetary award in terms of what is subject to statutorily prescribed time limits.

They are separate, albeit related, steps in a three-step process. Doser v. Doser, 106 Md.App. 329, 349-50 , 664 A.2d 453 (1995). In Step One, the judge “shall determine which property is marital property.” That ⁴⁷¹ requirement is spelled out in Maryland Code, Family Law Article, § 8-203. In Step Two, the judge then “shall determine the value of all marital property.” That requirement is spelled out in § 8-204.

In Step Three, the judge “may ... grant a monetary award.” That provision is § 8-205. Although the three steps are inextricably intertwined, the time limits that concern us literally apply only to Step One. Many attorneys, however, fail to note the fine distinction. Fader and Gilbert, Maryland Family Law (3d ed.2000), points out, in this regard, at 15-23 and 15-24: Time limits are set by statute within which action must be taken by the one seeking a monetary award to perfect the right to obtain that award.

While most attorneys think in terms of the statute requiring the trial court to determine the monetary award within a limited period of time, the limitations within the statute are applicable to Step One (Determining/Identifying the Marital Property). (Emphasis supplied). Although, as in the present case, all three steps are almost always telescoped into a single phenomenon, they are not literally the same. Fader, at 15-26 and 15-27, highlights both the narrow coverage of the time limitation and its intriguing ramifications.

It is important to note again that it is [to] the determination as to which property is marital property, that the 90-day time limit on presentation is applicable—not to the granting of a monetary award. This distinction may be important, particularly in cases of pension evaluation, where out-of-state uncooperative pension trustees may delay furnishing information necessary to make the monetary award possible within 90 days of divorce under § 8-205. The trial judge may, however, be able to decide whether and to what extent a pension is marital property within the 90-day period. No case decision has yet specifically decided this point.

But, the statute has to mean what it says as it says what it means. ⁴⁷² ... if there is a dispute as to whether certain property is marital property, ... the court shall determine which property is marital property: ,(1) when the court grants an annulment or an absolute divorce; (2) within 90 days after the court grants an annulment or divorce, it does not say must value within that time. Does it? it does not say “must” grant a monetary award within that time. Does it? We will see.

Practically, in almost every case, all three steps are done at the same time. But .... there will be. that case sometime .... and ... ' (Emphasis supplied). Turning attention to Step One, without the satisfaction of which Step Three could never proceed, § 8-203 provides that, if there is a dispute as to whether certain property is marital property, the court shall make that determination (1) when the court grants an absolute divorce, (2) within 90 days after grant of an absolute divorce if the power to do so is reserved in the decree, or (3) beyond the 90 day period if the court extends the time for making the determination during the 90 day period and the parties consent to the extension. Heinlein v. Stefan, 134 Md.App. 356, 366-67 , 759 A.2d 1180 (2000), thoroughly examined the requirements for valid action within each of those periods.

With respect to the first, it observed: Subsection (a) confers on the court the authority to “determine which property is marital property.” There are then set out three times at which or time periods within which the court may make such a determination. Subsection (a)(1) provides that the court may make the marital property determination at the time the court “grants an annulment or an absolute divorce.” There are no conditions or limitations placed upon the judge’s authority to make the determi ⁴⁷³ nation at that time. It is simply inherent in the court’s authority to decide the divorce case. 134 Md.App. at 366 , 759 A.2d 1180 (emphasis in original). The first of the three time periods was clearly not utilized in this case.

The decree of absolute divorce was issued on October 12, 2000. The marital property determination was not made at that time. With respect to the second time period, Heinlein v. Stefan continues: Subsection (a)(2) then deals with the period of the first 90 days following the court’s granting of an absolute divorce. It provides that the court may still make a determination as to which property is marital property.

It places on that authority, however, the precondition that the court shall have expressly reserved in the annulment or divorce decree itself the power to make such a delayed determination. Without such a reservation, the court may not act. If the court has made such a reservation, however, its authority to act within the initial 90 day period is unilateral. No consent is required of either party to the divorce action. 134 Md.App. at 366 , 759 A.2d 1180 .

No ultimate action was taken during that second time period, but all necessary conditions were satisfied to keep the court’s jurisdiction viable into and through the period. In the initial divorce decree, the court had expressly reserved the power to make a delayed determination as to which property was marital. It was, indeed, within that initial 90-day period that the court, on December 21 and 22, 2000, conducted a hearing with respect to the marital property. It did not, however, make its ultimate determination within the period.

A second extension into the third time period loomed. It is the third of the time periods that concerns us. With respect to it, Heinlein v. Stefan concludes: Subsection (a)(3) then deals with the third and final time period, the time “after the 90-day period.” That period stretches endlessly from the 91st day to an open-ended future. The court’s authority to act beyond the 90th day, ⁴⁷⁴ however, is cabined in by three pre-conditions....

Subsection (a)(3) gives the court the authority to “determine which property is marital property”: (3) after the 90-day period if: (i) the court expressly reserves in the annulment or divorce decree the power to make the determination; (ii) during the 90-day period, the court extends the time for making the determination; and (iii) the parties consent to the extension. 134 Md.App. at 367 , 759 A.2d 1180 (emphasis in original). On January 9, 2001 (the 89th day), the appellee requested the further extension. Following a conference call among all concerned parties, Judge Kane on January 10 granted the further extension. Several days prior to that, however, counsel for the appellee had written to counsel for the appellant about the apparent necessity of requesting the further extension.

The reply from appellant’s counsel not only did not oppose such an extension but suggested that a further extension was not even necessary. The position of appellant’s counsel was that Judge Kane had the continuing authority to act, without any time limitation. Dear Larry: I received your Sunday afternoon letter about the reservation of the marital property issue. Kindly provide me with any authority stating that not only does the hearing have to occur within the 90 days, but additionally, the Court must rule within the 90 days.

I do not know of any such case, and hence, do not know of any need to bother the Court on such an issue. I think we should both wait for the Court’s opinion, patiently. He will get to us when he can. Remember, you are the one who forced him to have to read a whole transcript of a deposition in addition to all of the trial testimony.

I think ⁴⁷⁵ you are going to have to find another case to work on until the Court is ready to give us his ruling on this one. (Emphasis supplied). In the conference call of January 9 among Judge Kane, counsel for the appellee, and counsel for the appellant, counsel for the appellant agreed to the extension. A confirmatory letter from appellant’s counsel to Judge Kane on that same day expressly spoke for the appellant himself as agreeing to the extension.

Dear Judge Kane: Based on our conference call of a few moments ago, I spoke to my client. He is willing to agree to an extension of time for the Court to rule on the outstanding issues. (Emphasis supplied). Thus, all three of the statutorily prescribed conditions, spelled out in § 8-203(a)(3), for conferring continuing jurisdiction on the trial court were fully satisfied.

The Family Law Article requires nothing more. B. The February 9 Factor In his letter to Judge Kane on January 9, counsel for the appellant, in his first paragraph, agreed to the further extension of time. In his second paragraph, however, he went on to make the additional request that the extension not be for longer than “30 additional days.” This was not a condition placed on the agreement to the extension. It was an ex parte request to the court.

We would request that the Count not extend the time more than SO additional days. As the Court knows, my client is still paying pendente lite alimony, which will continue until the Court makes its ruling. That is why we nvould ask for an expeditious conclusion to these proceedings. (Emphasis supplied).

At that point, all conditions, save only the actual granting of the extension by Judge Kane, had been satisfied for the second extension into the third and final time period. The ⁴⁷⁶ “power to make the determination” had been “expressly reserve[d] in the ... divorce decree.” Both “parties [had] consented] to the extension.” Judge Kane then “during the 90-day period” (on January 10) “extended] the time for making the determination.” Judge Kane had it within his unfettered discretion at that point not to place any time limit on that final extension. As Heinlein v. Stefan, 134 Md.App. at 367 , 759 A.2d 1180 , pointed out, § 8-203 contemplates only a “third and final time period” with no necessary further limitation. Subsection (a)(3) then deals with the third and final time period, the time “after the 90-day period.” That period, stretches endlessly from the 91st day to an open-ended future.

(Emphasis supplied). Although subsection (a)(3) did not require, under the circumstance of this case (the unqualified consent of the parties), Judge Kane to place any time limit on the final extension, neither did it preclude him from doing so. As a practical matter, when the consent of the parties to the extension is not conditioned by the setting of a deadline, a trial judge might be ill-advised gratuitously to impose a deadline on himself. If unforeseen circumstances should prevent a judge from meeting the self-imposed deadline, no further extension would be possible.

Even with the consent of the parties, Judge Kane could not on February 8, for instance, have granted another extension to March 9. Or on March 8, another extension to April 9. Any such additional extensions would be in violation of § 8-203(a)(3)(ii), which requires the court to grant the extension “during the 90-day period.” 2 ⁴⁷⁷ In this case, however, Judge Kane, though not required to do so, sought to accommodate the appellant’s request for expedition and his extension order of January 10 reflected that accommodation. Upon motion of A. Elisabeth Sommerfelt, Defendant/Counter-Plaintiff, the Plaintiff/Counter-Plaintiff, Mark C. Steinhoff, having consented thereto, it is this 10th day of January, 2000[Sic], by the Circuit Court for Howard County, Maryland, ORDERED, that the time for making a determination of marital property pursuant to Family Law Article § 8-203 is extended to February 9, 2001.

(Emphasis supplied). What is now the central issue of this appeal swirls about the fact that, as of the close of business on Friday, February 9, 2001, no resolution of the marital property issue was forthcoming from the court. The 23-page Memorandum Opinion of the court was signed by the judge on Monday, February 12, one working day and three calendar days after the self-imposed deadline of February 9. Copies were mailed to counsel on February 12 and the clerk docketed the Memorandum Opinion on February 14.

In a subsequent pleading, the appellant refers to “the Memorandum Opinion and Order of the Court dated February 12, 2001,” although he now consistently refers to the order of “February 14,” presumably for the rhetorical benefit of stretching the violation for another two days. A violation is a violation, however, whether for one working day or three, whether for three calendar days or five. It is the appellant’s position that the failure of the court to abide by its self-imposed February 9 deadline divested the court of its jurisdiction over the marital property and would render any post-February 9 judicial effort to resolve the marital property issue a nullity. C. Non-Preservation of the Issue Strangely, the appellant raised no objection to the timeliness of the Memorandum Opinion at the time it was issued.

On February 23, he filed a Motion to Alter or Amend ⁴⁷⁸ Judgment. Its eleven numbered paragraphs made no mention of the post-February 9 filing. Following a response to the motion by the appellee, the appellant, on March 20, filed a five-page Reply to the Defendant’s Response and again made no mention of the timeliness issue. The issue was raised for the first time on this appeal.

That does not preserve it for appellate review. Davis v. Davis, 335 Md. 699, 718-19 , 646 A.2d 365 (1994) (“ § 8-203(a) was violated. Unfortunately for Mr. Davis, his failure to raise the violation of § 8-203(a) at the trial court level is fatal to his claim of error.”). D. The Sanction For A Violation by the Judge In this case, however, we choose to overlook the nonpreservation of the contention.

We do so because it lends us the opportunity to explore the appropriate sanction, if any, when the failure to meet a § 8-203 deadline is the fault of the trial judge. The appellant’s contention that the court’s failure to meet the February 9 deadline divested the court of jurisdiction and rendered the court’s ultimate determination a nullity has no merit. In Brodak v. Brodak, 294 Md. 10 , 447 A.2d 847 (1982), the trial judge, facing a 90-day deadline, failed to issue his decision designating marital property until the 91st day. The husband argued that the trial court had thereby lost all jurisdiction to make a monetary award.

The Court of Appeals disagreed. It rejected “the concept that because of the delay ‘the court lost jurisdiction and [for that reason] any determinations thereafter concerning the [marital property] were nugatory.’ ” 294 Md. at 14 , 447 A.2d 847 . The Brodak analysis then introduced the concept of fault for failure to meet a deadline and the bearing that the placement of the fault would have on the appropriateness of imposing a sanction. The position that the husband would have us take would be to impose a sanction on the parties for the failure of the arbiter of the controversy, in this instance the circuit court, to act within the period prescribed by statute.

Since it is ⁴⁷⁹ the husband, not the wife, who is dissatisfied with the chancellor’s award, the practical effect were we to adopt the husband’s position would be to place the sanction for the chancellor’s failure to act within the specified time upon the prevailing party, the wife. We think that result would be wrong.... [W'Je decline to impose such a sanction here. 294 Md. at 25 , 447 A.2d 847 (emphasis supplied). In Davis v. Davis, 335 Md. 699, 719 , 646 A.2d 365 (1994), the Court of Appeals characterized its earlier decision in Brodak . We have, however, previously considered and soundly rejected the contention that the ninety-day time limitation is jurisdictional.

In Brodak v. Brodak, we were asked to determine whether a trial court’s failure to comply with Maryland Code § 3-6A-05(a)(l) of the Courts and Judicial Proceedings Article, the predecessor to the present § 8-203(a), divested the court of the power to make a marital property determination. There, we unequivocally held that “the court was not deprived of jurisdiction by its failure to act within the ninety-day period.” (Emphasis supplied). In Zorich v. Zorich, 63 Md.App. 710 , 493 A.2d 1096 (1985), the decision of this Court turned on our application of Brodak’s criterion of fault. In Zorich , the 90-day deadline for making a monetary award fell on June 20.

Within the 90-day period, a hearing was held on May 28 and the judge made a tentative ruling from the bench. The court delegated to the appellee, however, the task of drafting the final decree and submitting it to the court for signature. The supplemental decree, incorporating the monetary award, was not filed until July 12, 22 days after the expiration of the 90-day period. The appellant’s position in that case, just as is the appellant’s position here, was that the supplemental decree was a nullity.

Pointing out that orders and decrees of an equity court must be in writing and signed by the equity judge, and that § 3-6A-05(a)(l) [the predecessor to § 8-203] is mandatory, ⁴⁸⁰ appellant argues that the failure of the trial judge to sign and file the supplemental decree within 90 days rendered the supplemental decree a nullity since the court lost jurisdiction to act. Thus, appellant contends that when counsel is directed to draft a decree and that decree is not filed within the 90 day periqd, counsel is at fault and the court, although it has made the “determination” orally, loses its power to execute and file a binding and effective decree incorporating that determination. 63 Md.App. at 713-14 , 493 A.2d 1096 (emphasis supplied) (citations omitted). Writing for this Court, Judge Robert M. Bell (now Chief Judge of the Court of Appeals) referred to that contention as “this extraordinary proposition.” Id. We analyzed the Brodak opinion and its recognition of fault as the pivotal criterion.

Judge Bell concluded: Thus, it is neither the lapse of time, nor the mandatory nature of § 3-6A-05(a)(1) which is controlling; rather, it is the responsibility for the delay. The responsibility for making the determination required by the statute and for filing the decree embodying that determination rests with the trial judge. That responsibility is not, and cannot be, shifted to a party by a direction from the judge that that party draft or prepare the decree. We will not, under these facts, shift the burden of the court’s failure to act to the prevailing party. 63 Md.App. at 715-16 , 493 A.2d 1096 (emphasis supplied).

In Ticer v. Ticer, 63 Md.App. 729 , 493 A.2d 1105 (1985), by contrast, we held that the “imposition of the sanction that prohibits the court from acting [was] proper.” 63 Md.App. at 736, 493 A.2d 1105 . In that case, the 90 day deadline of December 26, 1979 was missed by over two years. Significantly, the appellant had failed within the 90 day period even to move for a hearing. The appellant was, therefore, at fault.

In Williams v. Williams, 71 Md.App. 22 , 523 A.2d 1025 (1987), the appellant, seeking the imposition of the sanction for a missed deadline, relied heavily on Ticer . Judge Bell, again ⁴⁸¹ writing for this Court, cautioned