HOLLANDER, J.
By "Divorce Order" dated March 15, 2007, the Circuit Court for Talbot County granted Stephanie Bonn Flanagan, appellee, an absolute divorce from Wayne Edward Flanagan, appellant. In addition, the court granted a monetary award to appellee of $30,000; ordered the sale of the marital home, with equal division of proceeds; awarded contribution of $1,045.81 to appellant; and awarded appellee $2,500 in attorney's fees.
On appeal, Mr. Flanagan presents four contentions, which we have recast in the form of questions:
For the reasons that follow, we shall affirm in part, vacate in part, and remand for further proceedings.
I. PROCEDURAL AND FACTUAL SUMMARY
The parties were married on November 23, 1984. It was a second marriage for each, and they have no children together. Ms. Flanagan left the family home on February 2, 2005.
On April 11, 2006, appellee filed a Complaint for Absolute Divorce on the ground of constructive desertion. Appellant filed an Answer and a Counter-Complaint for Absolute Divorce on May 17, 2006, on the ground of actual desertion. Among other things, each party sought a monetary award and attorneys' fees. At the time of trial on September 19, 2006, appellant was 68 years old and appellee was 64 years of age.
On September 15, 2006, the parties filed a Joint Statement of the Parties Concerning Marital and Non-Marital Property. They agreed that the following four items were marital property: (1) their jointly-titled marital home, at 311 Kerr Avenue in Denton, Maryland, which was valued at $165,000, with a mortgage of $91,123.78, and a home equity loan of $19,998.76,
Appellant was employed at an auto parts store, and received additional income from social security and a part-time auctioneering job. In 2006, he had a total annual income of $39,696. According to the parties' joint tax return, appellee earned $47,844 in 2005, as an administrator for the Grayce B. Kerr Fund.
Appellee recounted that she moved out of the marital home on February 2, 2005, leaving appellant a letter explaining her decision. She and appellant had lived separate and apart since that date, with no hope of reconciliation.
The letter was admitted into evidence. In particular, appellee cited appellant's drinking and internet sexual contacts as the reasons for her "decision," stating that "it is more painful to live with you than face life alone." The letter referred to an incident with a woman named Marianne
Ms. Flanagan added: "I have resolved not to live my life under these conditions any longer. I want peace."
In her testimony, appellee identified two reasons for her departure from the home, which were consistent with her letter. First, she pointed to appellant's alleged excessive drinking, which often led him to be "accusatory, argumentative, you know, all my faults, real and imagined for twenty years would be paraded out in front of me." Second, she complained about appellant's persistent "internet sexual contacts," which she discovered beginning in 2002. They consisted of visits to pornographic websites, which she characterized as "just nasty," as well as participation in "interactive chat rooms" and activity on dating websites. In December 2002, appellee discovered that appellant had made a date with another couple "to set up a sexual encounter with them at a future date...." She contacted the other couple and arranged, without appellant's knowledge, for the two couples to meet in order to confront appellant. According to appellee, appellant denied his online activity "[u]p until that point no matter what I said...." However, appellee noted that when the other woman, Marianne, "was standing in front of [appellant] with her boyfriend ... then he could no longer deny it because [the other woman] was there in person." Appellee indicated that she believed appellant's behavior had stopped for a time, but resumed in 2004.
In addition, appellee suggested that appellant was "threatening in his manner." But, she described only one incident of physical force, which occurred in January 2003, when appellant "threw a wallet" at appellee after a session of joint counseling.
Appellant stated that on the afternoon of February 2, 2005, as he was driving home from his job as an auctioneer at the Baltimore City tow lot, appellee called his cellphone and asked him to pull the car over. She then told him she was leaving. Claiming that he was "totally flabbergasted," appellant recalled that he "was close to passing out" from the news. When he returned to the marital home, all of the living room furniture and appellee's bedroom furniture were gone, as well as several boxes that he thought had been packed to go to an auction. He found appellee's farewell letter "on the desk next to the computer."
Appellant admitted to "prowling" for women on the internet in order to "add a little spice to [his] sex life." He explained that in 2002 he had a "severe prostatitis attack," which rendered him "dysfunctional." This condition prevented the parties from engaging in a physical relationship, and "stupidly" prompted him to visit online
Mr. Flanagan insisted that he had no other internet encounter after that incident. He maintained that sometime thereafter appellee "helped [him] solve the [sexual dysfunction] problem." He added: "And together I became functional again. I had no need to go on pornographic websites." Further, appellant recalled that the parties participated jointly in counseling. Because the internet chat rooms and the one meeting had created a serious problem between the parties, appellant claimed he "specifically promised [appellee] that [he] would never do it again," and never broke his promise.
In addition, appellant categorically denied ever striking appellee at any time during their marriage. He explained that the wallet incident was a result of appellee rummaging through his things, and he "threw it at her [saying] here, take the whole wallet and, and be done with it."
With regard to his alcohol consumption, appellant insisted that his drinking at home was limited to "a couple of cocktails" before or with dinner every other day or so, but that "after dinner I didn't drink anything at all." As for social drinking outside the home, he explained:
The evidence regarding the parties' financial status was uncontested. In addition to the items of marital property previously noted on the joint statement, appellee testified that she had a credit card with a balance of $5,351.48 and appellant had a credit card with a balance of $2,365. Appellee had a seven-year-old vehicle with 142,000 miles on it, while appellant had a 1996 Subaru station wagon with over 200,000 miles. Appellant retained his own bedroom set, and the remaining furniture and household items.
From the date of separation until the trial, appellant continued to reside in the marital home and pay the monthly mortgage and home equity loan. Appellee occupied an apartment at an initial rent of $750 per month, which increased at some point to $850 per month.
During the separation, appellant paid $17,749.36 toward the first mortgage and a total of $2,328.72 on the home equity loan, all but $2.00 of which was on interest, as the loan was an "interest only loan." Appellee testified that she left approximately
In closing arguments, appellee requested a 50/50 split in the equity of the home, with no contribution from her toward the mortgage expenses. She also requested attorney's fees of $5,000. Appellant asked the court not to divide the equity in the house equally, because he had made all the payments on the encumbrances during the separation. He requested a monetary award to offset the payments on the house that he had continued to make. Appellant's counsel also suggested that "it would be fairer to just leave [the parties' retirement accounts] as they are and that any adjustments that you make be made through the equity in the house."
The court stated, in part:
On February 27, 2007, the court issued a "Memorandum Opinion,"
The chancellor recognized that the parties' home was titled as tenants by the entirety. It found, according to the appraisal, that the value of the home was $165,000, with a mortgage of $91,237.28 and a home equity loan of $19,998.76.
Thereafter, the court turned to the "monetary award adjustment," making findings with respect to the factors in Md. Code (2006 Repl.Vol., 2007 Supp.), § 8-205(b) of the Family Law Article ("F.L.").
F.L. § 8-205(b)(8) requires the court to consider when and how the parties acquired an interest in any pension, retirement, profit sharing, or deferred compensation plan, as well as family use personal property and the parties' marital home, and the effort expended by each party in acquiring such property. The court valued appellant's retirement account at a total of $10,941.73, as compared to $2,310.74 for the total of appellee's two accounts. It commented: "[Appellant's one retirement account is worth more than four times as much as [appellee's] accounts combined."
The court concluded: "Taking into consideration all of the above factors, this Court awards the Wife a monetary award of $30,000, which may be paid to her from the net proceeds of the sale of the Kerr Avenue home." In addition, the chancellor
As noted, the court issued its "Divorce Order" on March 15, 2007. Notably, it did not specify the grounds for divorce. It said, in part:
On March 26, 2007, appellant filed a Motion to Revise or Amend the Judgment and for Clarification. The court denied the motion, without a hearing, on April 18, 2007. Appellant noted this appeal on April 20, 2007. Then, on August 13, 2007, after appellant obtained an Irrevocable Line of Credit in the amount of $3,500, in lieu of a supersedeas bond, the circuit court stayed the previously ordered sale of the marital home pending the outcome of this appeal.
We shall include additional facts in our discussion, as relevant to the issues.
II. DISCUSSION
A. Grounds for Divorce
Appellant contends that the chancellor erred in granting a divorce on the ground of voluntary separation, arguing: "This conclusion is not supported by the evidence, as the testimony of both parties and the one witness, as well as all of the pleadings, are silent on that issue, nor is granting a divorce on that ground sustainable as a matter of law." He also contends that appellee was not entitled to a divorce on the grounds of constructive desertion, because appellee was not "fearful of physical violence," nor had there ever been any such violence. He asserts: "The element of threatened bodily harm is clearly the linchpin necessary to prove the marital relationship cannot be sustained. Without it, a divorce based on constructive desertion cannot be granted."
Appellee responds that appellant's "argument on the grounds of divorce alleges mistakes in both fact and law." She maintains that "there was ample evidence in the record to support the Chancellor's findings," because it was "undisputed that at the time of the hearing, the parties had been physically separated for more than twelve (12) months, and there was no reasonable expectation of reconciliation. At some point after the initial separation, the separation became mutual and voluntary." She insists that "[t]he element[s] of mutuality and separation need not coincide at the inception of the separation." Appellee explains:
Alternatively, appellee asserts: "Assuming arguendo that the Chancellor's analysis of the mutual and voluntary separation was flawed, there was ample evidence in the record for the Chancellor to award Mrs. Flanagan a divorce on the grounds of constructive desertion." Moreover, she argues that any error is "harmless," asserting:
In Maryland, the permissible grounds for divorce are governed by statute. Ledvinka v. Ledvinka, 154 Md.App. 420, 436, 840 A.2d 173 (2003) ("[D]ivorce is a creature of statute and only the grounds enumerated in the statute will support a divorce decree."). See also, e.g., Thomas v. Thomas, 294 Md. 605, 610, 451 A.2d 1215 (1982); Foote v. Foote, 190 Md. 171, 176, 57 A.2d 804 (1948). F.L. § 7-103(a) provides the permissible bases for an absolute divorce, which include the following:
As noted, appellee's complaint alleged constructive desertion, while appellant alleged actual desertion in his counterclaim. In its Memorandum Opinion, the court awarded a divorce on the basis of "mutual and voluntary separation of more than 12 months." It reasoned that, following appellee's departure from the marital home on February 2, 2005, "[n]either party has attempted reconciliation. Insofar as the separation became mutual and voluntary and both parties indicate there is no reasonable
In regard to a voluntary separation, the evidence must establish that the parties were separated voluntarily for the requisite period. In Wallace v. Wallace, 290 Md. 265, 277, 429 A.2d 232 (1981), the Court said:
We addressed the elements of voluntary separation in Aronson v. Aronson, 115 Md.App. 78, 691 A.2d 785, cert. denied, 346 Md. 371, 697 A.2d 111 (1997). There, the wife sought a divorce from her husband "on the grounds of adultery and a two year separation." Id. at 81, 691 A.2d 785. We set forth the following facts, id. at 81-82, 691 A.2d 785:
On appeal, the husband challenged the grounds for divorce. We began our analysis by reviewing the Court of Appeals's decision in Wallace, 290 Md. 265, 429 A.2d 232. We said, 115 Md.App. at 96-97, 691 A.2d 785 (some citations omitted; italics in Aronson; boldface added):
What the [Wallace] Court said is pertinent here:
We noted in Aronson that proof of a mutually voluntary separation was lacking. We explained, id. at 103, 691 A.2d 785:
In concluding that vacatur of the divorce decree was required, we explained, id. at 97-98, 691 A.2d 785 (some citations omitted; italics added in Aronson; boldface added):
Appellee's position is at odds with Wallace and Aronson; there was no evidence below of an agreement to separate that existed for the requisite duration. Specifically, no evidence was presented as to whether or when appellant affirmatively agreed to terminate the relationship. When appellee left the marital home in February 2005, there was no evidence that the parties had a mutual agreement to separate with the intent to end the marriage. To the contrary, the evidence clearly showed that it was a unilateral decision of appellee. Moreover, as we made clear in Aronson, one party's acquiescence to what he cannot prevent does not constitute a voluntary agreement to separate. Nor was there evidence of such an agreement by April 11, 2005, i.e., one year before appellee filed her Complaint for Absolute Divorce. See F.L. § 7-103(a)(3)(voluntary separation is ground for divorce if "the parties voluntarily have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce") (emphasis added). See also, e.g., Wallace, 290 Md. at 277, 429 A.2d 232 ("[T]he requisite twelve month separation prior to the filing of the bill cannot be said to have transpired.").
Appellee's reliance on the filing by appellant of a Counter-Complaint for Absolute Divorce is also unavailing. That filing, on May 17, 2006, did not demonstrate that appellant agreed to terminate the nuptial bond at the time that is relevant, i.e., at least one year prior to April 11, 2006 — or assuming that appellant's Counter-Complaint established a new date by which the separation could be measured, one year prior to May 17, 2006. See Wallace, 290 Md. at 277, 429 A.2d 232 (assuming without deciding that the date of the amended complaint was relevant date for purposes of voluntary separation).
Moreover, appellant's Counter-Complaint based on desertion did not establish his agreement to a no-fault divorce. Voluntary separation is a no-fault ground, while appellant counterclaimed based on desertion, which is a fault-based ground. Cf. Wagner v. Wagner, 109 Md.App. 1, 12, 674 A.2d 1 ("The trial court subsequently granted Mr. Wagner a divorce ... on grounds of desertion, having found Ms. Wagner to be at fault for the demise of the marriage."), cert. denied, 343 Md. 334, 681 A.2d 69 (1996); Lemley v. Lemley, 102 Md.App. 266, 281, 649 A.2d 1119 (1994) ("With the introduction of `no-fault' divorce based on a voluntary one-year separation... or an involuntary separation ... the issue of constructive desertion as grounds for divorce rarely reaches this Court."). As we recognized in Aronson, the fact that a party seeks to end the marriage on the basis of fault does not establish the party's acquiescence to a no-fault termination. We explained, id. at 98, 691 A.2d 785 (emphasis added; citation omitted):
See also Matysek v. Matysek, 212 Md. 44, 48-50, 128 A.2d 627 (1957) (suit by spouse seeking fault-based divorce may militate against finding of voluntary agreement to separate in later suit).
Accordingly, we agree with appellant that the court erred in granting a divorce on the ground of voluntary separation. Nevertheless, we are equally convinced
In Flores v. Bell, 398 Md. 27, 33-34, 919 A.2d 716 (2007), the Court of Appeals recently summarized the harmless error doctrine as it applies to civil cases:
Id. at 91-92, 854 A.2d 1180 (citations omitted).
The harmless error doctrine is perhaps invoked more often in connection with a procedural error than with a substantive error. But, the doctrine applies with equal force to legal errors, so long as no substantial injury to the appellant results from the error. See, e.g., Storetrax.com, Inc. v. Gurland, 397 Md. 37, 51-53, 915 A.2d 991 (2007) (in review of lower court's choice of law analysis, holding that where "we cannot discern the difference, if any, in the outcome of this case whether the laws of Maryland or Delaware are applied to the facts of the present case ... any technical error on the part of the Circuit Court in its analysis of choice of law principles was harmless").
The court did not specify a ground in the Divorce Order. Although the Memorandum Opinion found a voluntary separation, we discern no substantial injury that accrued to appellant as a result of that finding, rather than a finding of desertion or constructive desertion. As appellee underscores, appellant clearly wanted a divorce, as evidenced by his counter-complaint, and he obtained the relief he sought, i.e., an absolute divorce.
Boyd v. Boyd, 177 Md. 687, 688, 11 A.2d 461 (1940) (citations omitted).
Here, the record supported a finding of constructive desertion, the ground alleged by appellee.
We explained the showing required for a divorce based on the basis of constructive desertion in Lemley, supra, 102 Md.App. at 281, 649 A.2d 1119 (emphasis in original; internal citations omitted):
Accord Ricketts, 393 Md. at 488-89, 903 A.2d 857. See also Carpenter v. Carpenter, 257 Md. 218, 224-25, 262 A.2d 564 (1970); Stewart v. Stewart, 256 Md. 272, 278-82, 260 A.2d 71 (1969).
The findings of the court below were tantamount to a finding of constructive desertion, and were supported by the record. Notably, the court below found that appellee "decided to leave the marital home ... after years of her husband's soliciting extramarital sexual relationships on the internet, his heavy drinking and verbal abuse." Moreover, as appellee points out, "only slight corroboration is required," Kelsey v. Kelsey, 186 Md. 324, 328, 46 A.2d 627 (1946), and it may "`come from the other spouse.'" Colburn v. Colburn, 15 Md.App. 503, 512, 292 A.2d 121 (1972) (citation omitted). Among other things, appellant admitted to having prowled on the internet to "jazz up [his] sex life."
In sum, because the court made findings to support the award of divorce based on constructive desertion, which findings were not clearly erroneous, we regard as harmless the court's error in its Memorandum Opinion, in which it found a voluntary separation.
B. Monetary Award
We turn to appellant's challenge to the monetary award. In connection with divorce proceedings, the Marital Property
When the division of marital property by title is inequitable, the chancellor may adjust the equities by granting a monetary award. See Long v. Long, 129 Md.App. 554, 579, 743 A.2d 281 (2000) (recognizing that the judge has "all the discretion and flexibility he needs to reach a truly equitable outcome."). In Ward v. Ward, 52 Md.App. 336, 339-40, 449 A.2d 443 (1982), we elucidated the concept of the monetary award, stating:
(Internal citation and emphasis omitted).
In order to determine whether to grant a monetary award, the chancellor must follow a three-step procedure. See F.L. §§ 8-203, 8-204, 8-205; Alston v. Alston, 331 Md. 496, 499-500, 629 A.2d 70 (1993); Gordon v. Gordon, supra, 174 Md.App. 583, 623-24, 923 A.2d 149 (2007); Collins v. Collins, 144 Md.App. 395, 409, 798 A.2d 1155 (2002). First, for each disputed item of property, the chancellor must determine whether it is marital or non-marital. F.L. §§ 8-201(e)(1); 8-203. Second, the chancellor must determine the value of all marital property. F.L. § 8-204. Third, the chancellor must decide if the division of marital property according to title would be unfair. If so, the chancellor may make a monetary award to rectify any inequity "created by the way in which property acquired during marriage happened to be titled." Doser v. Doser, 106 Md.App. 329, 349, 664 A.2d 453 (1995). See F.L. § 8-205(a); Long, 129 Md.App. at 578-79, 743 A.2d 281.
In regard to a monetary award, the chancellor is required to consider the statutory factors contained in F.L. § 8-205(b). See Ware v. Ware, 131 Md.App. 207, 213-14, 748 A.2d 1031 (2000); Doser, 106 Md. App. at 350, 664 A.2d 453. F.L. § 8-205(b) states:
Ordinarily, it is a question of fact as to whether all or a portion of an asset is marital or non-marital property. The value of each item of marital property is also a question of fact. We review the chancellor's factual findings under the clearly erroneous standard. See Rule 8-131(c); Noffsinger v. Noffsinger, 95 Md.App. 265, 285, 620 A.2d 415, cert. denied, 331 Md. 197, 627 A.2d 539 (1993). An appellate court "will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses." Md. Rule 8-131(c).
In contrast, we review the chancellor's determination of questions of law under a "de novo" standard of review. Shenk v. Shenk, 159 Md.App. 548, 554, 860 A.2d 408 (2004). Moreover, the ultimate decision regarding whether to grant a monetary award, and the amount of such an award, is subject to review for abuse of discretion. Alston, 331 Md. at 504, 629 A.2d 70; Gordon, 174 Md.App. at 626, 923 A.2d 149; Malin v. Mininberg, 153 Md.App. 358, 430, 837 A.2d 178 (2003); Chimes v. Michael, 131 Md.App. 271, 282-83, 748 A.2d 1065, cert. denied, 359 Md. 334, 753 A.2d 1031 (2000). Under that standard, "we may not substitute our judgment for that of the fact finder, even if we might have reached a different result...." Innerbichler v. Innerbichler, 132 Md.App. 207, 230, 752 A.2d 291, cert. denied, 361 Md. 232, 760 A.2d 1107 (2000).
Appellant faults the chancellor's bottom line decision to make a monetary award of $30,000 to appellee. In addition, he challenges several of the circuit court's antecedent determinations, which we shall discuss, infra.
After reviewing the relevant factors drawn from F.L. § 8-205(b), the chancellor concluded, in a single sentence, that $30,000 was an appropriate award. As noted, it said: "Taking into consideration all of the above factors, this Court awards the Wife a monetary award of $30,000, which may be paid to her from the net proceeds of the sale of the Kerr Avenue home." Because the circuit court did not adequately explain the basis for its monetary award, and because the award resulted in appellee's entitlement to almost 90% of the value of the marital property, we shall vacate the award and remand for further proceedings. We explain.
Appellant contends that the chancellor's award of $30,000 to appellee exceeded his expected share of the proceeds of the marital home ($26,938.73), and thus gave appellee "the entire value of the marital property." He also maintains that "the order of `contribution' awarded to [appellant] appears to be a second marital award in his favor, in the form of a Crawford credit not referenced as such, though there can be only one marital award per case."
Further, appellant argues that the award "is not supported by the facts in the record, but the rest of the relevant sentence in the Memorandum Opinion is even more indicative of the confused rationale employed." According to appellant, "[t]his pronouncement makes no rational sense, the Court having already ordered that the proceeds were to be divided equally, stating that those proceeds would be $26,938.73 each." Appellant continues:
Appellee rejects appellant's assertion that the chancellor's statement that the $30,000 could be paid "from the net proceeds of the sale of the Kerr Avenue home" was incompatible with the fact that each party's share of the proceeds would be less than $30,000. She argues,:
Finally, she argues that appellant mischaracterized the award of contribution as a second monetary award. She explains:
Appellant relies on our decision in Ward v. Ward, supra, 52 Md.App. 336, 449 A.2d 443 (1982), to support his position. In that case, the chancellor had resolved the disposition of marital property, worth a total of $32,000, by awarding $50,000 to the husband and $10,000 to the wife. Id. at 340-42, 449 A.2d 443. We determined that the ruling "violate[d] the most basic principles governing monetary awards." Id. at 343, 449 A.2d 443. First, we observed, id. at 343, 449 A.2d 443 (footnote omitted):
"Second," we said, "the statute contemplates but one net monetary award — or none — but certainly not two. There is no authority in [the Marital Property Act] for making a $50,000 award to one spouse and a $10,000 award to the other." Id. Finally, we determined "that the chancellor gave no more than lip service to the [statutory] factors." Id. In our view, "the inescapable conclusion flowing from a consideration of the ... factors is that the balance was even," id. at 342-43, 449 A.2d 443, and thus we saw "nothing fair or equitable in a five to one ratio, based on the court's findings." Id. at 343-44, 449 A.2d 443 (footnote omitted). Of import here, we concluded that "[t]he effect of the chancellor's award [was] to give the husband the entire value of the marital property. Such a decision constituted clear error." Id. at 344, 449 A.2d 443.
Appellee is correct that, in contrast to Ward, the monetary award of $30,000 to
Although the parties' retirement accounts constituted a portion of the marital property, appellant asked the court to allow the parties to keep their respective retirement accounts and adjust any inequity via a monetary award; the chancellor did not mention the retirement accounts as marital property for distribution in his Memorandum Opinion.
In fact, the effect of the chancellor's order was to award appellee over 86% of the marital property-a six to one ratio. We elaborate below.
The total marital property value is:
$53,877.46 (total net value of home)
+ $10,941.73 (appellant's retirement account)
+ $ 2,270.74 (appellee's retirement total value)
__________
$67,089.93 (TOTAL value of marital property)
Under the chancellor's order, appellee would receive:
$26,938.73 - $1,045.81 = $25,892.92 (half of net value of home, less contribution
award)
+ $30,000.00 (marital award)
+ $1,630.26 + $640.48 = $ 2,270.74 (value of appellee's retirement)
__________
$58,163.66 (TOTAL marital property retained
by appellee)
In contrast, appellant would receive:
$26,938.73 + $1,045.81 = $27,984.54 (half of net value of home, plus contribution
award)
+ $10,941.73 (appellant's retirement account)
- $30,000.00 (marital award)
__________
$ 8,926.27 (TOTAL marital property retained
by appellant)
We have overturned monetary awards when the trial court's disposition demonstrated a great disparity in light of the statutory factors. Although such decisions are relatively infrequent, given the deferential nature of the discretionary standard of review, Ward is not unique in our case law. For instance, in Long, supra, 129 Md.App. 554, 743 A.2d 281, although we could not "fault the chancellor's thorough treatment of the statutory factors," we vacated an award of "less than 20 percent of the marital assets to Wife," where the trial court's analysis of the factors tipped in favor of the wife in several respects. Id. at 577, 743 A.2d 281. We have also determined that, "`if the spouse to whom the court intends to grant a monetary award already owns (and thus will retain) any marital property, the award cannot exceed the value of the marital property owned by the other spouse.'" Brewer v. Brewer, 156 Md.App. 77, 109, 846 A.2d 1 (citation omitted), cert. denied, 381 Md. 677, 851 A.2d 596 (2004).
Here, the sizeable, unexplained disparity resulting from the monetary award compels us to vacate the award.
Moreover, as we shall explain, the chancellor's underlying analysis was flawed with respect to some, though by no means all, of the factors leading to the monetary award. We shall address appellant's contentions with regard to those factors as guidance for the court and the parties on remand.
Appellant first directs our attention to the circuit court's determination of what constituted marital property. Pursuant to Md. Rule 9-207, the parties submitted a joint statement of marital and non-marital property. Under Rule 9-207(a), "[w]hen a monetary award or other relief pursuant to [F.L.] § 8-205 is an issue, the parties shall file a joint statement listing all property owned by one or both of them." The form statement provided by the rule permits the parties to designate which property they agree is marital property, which property they agree is not marital property (including property "excluded by valid agreement"), and property whose marital character is disputed. See Md. Rule 9-207(b). The form statement also allows each party to assert his or her view as to title, fair market value, and any liens or encumbrances upon each item of property. Id.
In Beck v. Beck, 112 Md.App. 197, 203-208, 684 A.2d 878 (1996), cert. denied, 344 Md. 717, 690 A.2d 523 & 345 Md. 456, 693 A.2d 354
In the Committee's Explanatory Note for the Rule, it said, 13 Md. Reg. at 2306 (emphasis in original):
The Beck Court also quoted the minutes of the meeting of the Rules Committee at which the recommendation of proposed Rule S74 was discussed. According to the minutes, Judge Wilner "`advised that presently, without such a procedure, there is an avalanche of undisputed matters wasting the court's time. The proposed procedure, Judge Wilner continued, simply narrows the areas of dispute for the court. The procedure has the additional benefit, he added, of promoting settlements.'" Beck, 112 Md.App. at 207, 684 A.2d 878 (quoting minutes; Beck Court's emphasis).
Rule 9-207, which has been derived without major modification from Rule S74, thus facilitates the chancellor's decision-making by clarifying, before trial, areas of dispute and agreement between the parties. In Beck, we observed, 112 Md.App. at 207-208, 684 A.2d 878:
Accordingly, we concluded that "the admissions and stipulations contained in Maryland Rule ... S74 Statements, when filed in a case as required, may be considered as evidence by trial courts without the necessity of formal introduction of such statements at trial." Id. at 208, 684 A.2d 878.
As noted, the joint statement filed in this case identified only four items of marital property: the marital home; appellant's retirement account; and appellee's two retirement accounts. The joint statement contained no disputes as to the marital character, title, or value of any items of marital property. Of particular significance, it also contained an agreement "that all issues with regard to the remaining property that [the parties] hold have been resolved."
In support of his position, appellant relies on Cotter v. Cotter, 58 Md.App. 529, 473 A.2d 970, cert. denied, 300 Md. 794, 481 A.2d 239 (1984). There, we said, id. at 535-36, 473 A.2d 970:
(Italics in Cotter; boldface added). Accord Court v. Court, 67 Md.App. 676, 687, 509 A.2d 693 (1986); Campolattaro v. Campolattaro, 66 Md.App. 68, 78-79, 502 A.2d 1068 (1986).
Appellant's reliance on Cotter is misplaced. Our decision in Cotter predated the enactment of Rule S74, the predecessor to Rule 9-207. Thus, the parties' "agreement" in Cotter did not take the form of a Joint Statement pursuant to Rule 9-207. In the words of Judge Wilner, quoted in Beck, the purpose of Rule 9-207 is to provide a means for the parties to "`narrow[ ] the areas of dispute for the court [and] promot[e] settlements.'" Beck, 112 Md.App. at 207, 684 A.2d 878 (quoting Judge Wilner's comments at Rules Committee meeting; emphasis removed).
F.L. § 8-201(e)(3)(iii) specifically provides that property "excluded by valid agreement" is no longer marital property. We have held that, "`[i]n order to exclude property "by valid agreement" from the reach of a monetary award, the parties must specifically provide that the subject property must be considered "non marital" or in some other terms specifically exclude the property from the scope of the Marital Property Act.'" Golden v. Golden, 116 Md.App. 190, 203, 695 A.2d 1231 (citation omitted), cert. denied, 347 Md. 681, 702 A.2d 290 (1997). An agreement such as the one set forth in the parties' joint statement, that "all issues with regard to the remaining property that they hold have been resolved," when articulated in a Rule 9-207 statement, meets the criteria explicated in Golden: it "specifically exclude[s] the property from the scope of the Marital Property Act," Golden, 116 Md.App. at 203, 695 A.2d 1231, and thus removes the property from the marital property pool
Accordingly, an agreement reflected in a joint statement under Rule 9-207, to the effect that the parties have resolved the disposition of certain marital property, serves to render that property non-marital, pursuant to F.L. § 8-201(e)(3)(iii). To the extent that Cotter, 58 Md.App. 529, 473 A.2d 970, Court, 67 Md.App. 676, 509 A.2d 693, and Campolattaro, 66 Md.App. 68, 502 A.2d 1068, are inconsistent with that proposition, they have been superseded by the rule. As we discuss infra, however, the fact that property may be excluded from the marital property "pool," by agreement of the parties in a Rule 9-207 joint statement, does not mean that the court may not consider such nonmarital property as a factor in its equitable distribution of the remaining marital property.
Appellant also contends that the court erred in the third step of the marital property analysis, with respect to its consideration of the factors set forth in F.L. § 8-205(b).
Appellant observes that the court recognized his payment of approximately $900 per month toward the mortgage on the marital home, for a total of $20,491.62. He complains, however, that the court did not consider that appellant also made payments on the couple's home equity loan.
Although appellant concedes the correctness of the chancellor's finding that appellee left approximately $3,200 in the couple's joint bank account, which appellant used to pay marital expenses, he takes issue with the court's finding that he made a "greater" post-separation contribution, when, in fact, he made "the only contribution in this regard, primarily from his own earnings." He asserts: "Other than having used a good part of the $3,200 left behind by [appellee] when she left toward the parties' 2004 tax bills, which clearly accrued when they were still together, what he earned paid their bills."
We fail to discern clear error or abuse of discretion as to this factor. "The chancellor is not required to articulate every fact upon which he relies." Cousin v. Cousin, 97 Md.App. 506, 518, 631 A.2d 119 (1993). Under discretionary review, "a trial judge's failure to state each and every consideration or factor" does not, without demonstration of some improper consideration, "constitute an abuse of discretion, so long as the record supports a reasonable conclusion that appropriate
As to the second factor under F.L. § 8-205(b), the value of all the property interests of both parties, appellant refers to his argument founded on Cotter, supra, 58 Md.App. 529, 473 A.2d 970, and contends: "[T]he analysis of the second factor, as stated above, fails to even remotely consider the value of all of the marital property, so [it] is flawed in that regard." In its consideration of this factor, the court evaluated only the net value of the marital home, which the chancellor calculated as $53,877.46, after deducting from the stipulated fair market value of $165,000 the value of the mortgage ($91,123.78) and the home equity loan ($19,998.76). Appellant concedes that the chancellor's "math is correct."
In response, appellee acknowledges that the court only mentioned the home in its discussion of this factor, but argues that the court "clearly considered other property to be marital property and articulated it elsewhere in his Memorandum Opinion. The Chancellor specifically referred to the retirement accounts that each party had in its name and the values attributed to those accounts." Appellee also observes that the other personal property owned by the parties, such as their two vehicles and their furniture, was divided by agreement. She states: "Presumably, [both parties] felt the division of personal property was fair." In her view, consideration of fairly divided property would not have altered the court's conclusion.
As discussed above, the court did not err under F.L. § 8-204(a) in excluding from consideration what became the parties' non-marital property; that section requires the court to "determine the value of all marital property" for equitable distribution. By stipulating in their Rule 9-207 joint statement that they had resolved all issues with respect to certain property, the parties effectively transmuted such property into non-marital property.
The same rationale does not apply, however, in the context of F.L. § 8-205(b)(2). With respect to the amount of a monetary award, that provision instructs the court to consider "the value of all property interests of each party" (emphasis added), which includes nonmarital property. Unlike F.L. § 8-204, which governs what property is subject to distribution by the court, F.L. § 8-205(b)(2) requires that, in evaluating the equities between the parties, the court must consider all of the property of each party, both marital and non-marital. That would necessarily include marital property that becomes non-marital by virtue of the parties' agreement in a Rule 9-207 statement. See Merriken v. Merriken, 87 Md.App. 522, 545, 590 A.2d 566 (1991) ("[I]nattention to the nonmarital property is in derogation of the court's statutory obligation to consider `the value of all property interests of each party....'").
Appellee claims that calculation of "a value for the personal property that both [parties] agreed was fairly divided" would not "change the outcome with respect to the monetary award." We disagree. In light of the amount of the monetary award, discussed supra, we cannot say that appellant has not suffered any injury from the court's failure to consider all of the parties' property interests. The same can be said of the court's discussion of the third factor, "the economic circumstances of each party
As to the fourth factor, "the circumstances that contributed to the estrangement of the parties," F.L. § 8-205(b)(4), the court's analysis of this factor was succinct: "[Appellee] left the marital home after years of her husband's soliciting extramarital sexual relationships on the internet, his heavy drinking, and verbal abuse." Appellant complains that "the decision does not make any reference whatsoever to the conflicting testimony or attempt to either reconcile or distinguish the differing point of view to which [appellant] testified." Moreover, he contends that, in light of the chancellor's grant of divorce on the grounds of voluntary separation rather than constructive desertion, "this paragraph of the Memorandum Opinion is internally inconsistent with its earlier pronouncements, whether correct or not."
Again, we disagree. "`The trier of fact may believe or disbelieve, accredit or disregard, any evidence introduced.'" Walker v. Grow, 170 Md.App. 255, 275, 907 A.2d 255 (citation omitted), cert. denied, 396 Md. 13, 912 A.2d 649 (2006). See also Edsall v. Huffaker, 159 Md.App. 337, 342, 859 A.2d 274 (2004), cert. denied, 387 Md. 122, 874 A.2d 917 (2005). But, the court was not required to discuss allegedly conflicting testimony. Nor is there necessarily any inconsistency between the court's factual findings as to the parties' estrangement and its decision to award a divorce based on voluntary separation. The court was not required to grant a divorce on the most culpable grounds available, under a "`badder-is-better standard.'" Welsh v. Welsh, 135 Md.App. 29, 64-66, 761 A.2d 949 (2000) (citation omitted), cert. denied, 363 Md. 207, 768 A.2d 55 (2001).
In addition, appellant contests the chancellor's analysis of the seventh factor, "the physical and mental condition of each party." See F.L. § 8-205(b)(7). He complains that the Memorandum Opinion "only references [appellee's] uncorroborated medical conditions, and makes no reference to [appellant's] prostatitis; in fact he is not mentioned at all."
To be sure, in regard to the parties' health, the court only discussed appellee, cataloging her "depression, high blood pressure, and panic attacks...." But, we agree with appellee that the record before the chancellor did not compel the conclusion that appellant currently suffers from a particular malady. As appellee points out, appellant's testimony about his prostatitis did not concern his "current health status." Rather, he testified that "in 2002, he suffered from a prostatitis attack that left him dysfunctional sexually for a period of time, but that at some point before the separation, [he] had become functional again.... In addition, [appellant] testified that his current health status is `generally good.'" Therefore, we discern no clear error in the chancellor's failure to describe appellant's health. See, e.g., Schade v. Maryland State Board of Elections, 401 Md. 1, 33, 930 A.2d 304 (2007) ("If any competent material evidence exists in support of the trial court's factual findings, those findings cannot be held to be clearly erroneous."). See also, e.g., Chesapeake Bank of Maryland v. Monro Muffler/Brake, Inc., 166 Md.App. 695, 705, 891 A.2d 384, cert. denied, 392 Md. 726, 898 A.2d 1005 (2006); L.W. Wolfe Enterprises, Inc. v. Maryland Nat'l Golf, L.P., 165 Md.App. 339, 343, 885 A.2d 826 (2005), cert. denied. 391 Md. 579, 894 A.2d 546 (2006).
Finally, appellant alleges several errors in the chancellor's consideration of the eleventh, "catch-all" factor, which permits the court to consider "any other factor that the court considers necessary or appropriate
The chancellor continued:
Appellant assigns error as to this factor with regard to the chancellor's calculation of appellee's rent at $800 per month. He argues:
In response, appellee notes that she testified that her rent was "$750 when I moved in. Its [sic] now up to $850."
We discern neither error nor abuse of discretion in the chancellor's decision to "approximate" appellee's rent at $800 per month, given appellee's testimony and the lack of evidence as to the exact date when appellee's rent increased from $750 to $850. Appellant could have cross-examined appellee to determine the exact date upon which her rent increased, but did not do so. The court was entitled to credit appellee's testimony and conclude that, at some point during the separation, appellee's rent increased to $850, and to use an average as the rental figure. Put another way, the chancellor's practical decision to approximate appellee's total rent on the basis of the testimony before him did not exceed the bounds of his discretion.
Appellant also takes issue with the chancellor's mention of the $3,200 that appellee left in the joint account upon separation. Appellant contends that the $3,200 was not "relevant" because the monies were marital funds used by appellant to pay marital debts. We are unable to discern error here. Among other things, the chancellor stated no conclusion that flowed from its mention of the $3,200. The chancellor's mere statement that it was "important to reiterate" that fact is, in our view, neither reversible error nor an abuse of discretion.
In addition, appellant challenges the chancellor's decision to take into account the cost of appellee's rent and, in effect, use that sum as a credit toward her contribution to the expenses he paid for the marital home. Appellant asserts:
Appellee has not challenged the chancellor's decision to award contribution in this case. She urges us to uphold the ruling, claiming "the Chancellor recognized that while [appellant] made all of the mortgage payments on the marital home, he also received the benefit of living in the marital home." Citing Broseus v. Broseus, 82 Md.App. 183, 570 A.2d 874 (1990), appellee maintains:
We begin by reviewing generally the award of contribution for expenditures toward the mortgage and upkeep of the marital home during separation.
In Baran v. Jaskulski, 114 Md.App. 322, 328-32, 689 A.2d 1283 (1997), we explained the origin and meaning of the term "Crawford credits," and presented the following definition, id. at 332, 689 A.2d 1283:
The Court of Appeals considered the concept of contribution in divorce cases in the seminal case of Crawford v. Crawford, 293 Md. 307, 443 A.2d 599 (1982), from which the term "Crawford credits" is derived. There, the Court expounded on the "general law of contribution that applies to co-tenants...." Id. at 309, 443 A.2d 599. It said: "Generally, one co-tenant who pays the mortgage, taxes, and other carrying charges of jointly owned property is entitled to contribution from the other." Id. The Court explained that the doctrine of contribution is equally applicable to a tenancy by the entireties (a form of co-tenancy available only to married couples) as to other forms of co-tenancy (tenancy in common and joint tenancy). Id. at 310-11, 443 A.2d 599. The Court noted, however, that "[w]hen the co-tenants are married to each other ... a presumption of gift usually arises as to any payment made to purchase the property," id. at 311, 443 A.2d 599, thus defeating the payor spouse's entitlement to contribution. See id. at 311-14, 443 A.2d 599. The Crawford Court's paramount determination was that, although "the presumption of gift doctrine is alive in
Caccamise v. Caccamise, 130 Md.App. 505, 747 A.2d 221, cert. denied, 359 Md. 29, 753 A.2d 2 (2000), is also instructive. In that case, we explained that there are "four exceptions that preclude contribution; namely (1) ouster;
We explained in Kline, 85 Md.App. at 48, 581 A.2d 1300: "The reason contribution is not mandatory between spouses at the time of divorce is that contribution is an equitable principle ... and the ability to grant a monetary award under the [Marital Property] Act enables the chancellor to achieve more complete equity than can be done through a Crawford contribution." Indeed, "`requiring contribution could create the very inequity which the Act was designed to prevent.'" Imagnu v. Wodajo, 85 Md.App. 208, 223, 582 A.2d 590 (1990) (citation omitted). Thus, "the court must exercise its discretion to determine whether Crawford credits are warranted," and it is therefore not accurate to say "that `the spouse who pays mortgage and other carrying charges that preserve the property is entitled to' receive such credits in all cases." Woodson, 165 Md.App. at 493, 885 A.2d 907 (citing Keys, 93 Md.App. at 681, 614 A.2d 975) (emphasis added). As we stated in Spessard v. Spessard, 64 Md.App. 83, 96, 494 A.2d 701 (1985), "the test involves whether the total disposition is equitable."
To be sure, appellant did not benefit from appellee's rental of an apartment. In contrast, appellee derived significant benefit from appellant's payment of the mortgage, because she is entitled to half of the equity in the house. Nevertheless, we do not find an abuse of discretion in the chancellor's decision to award Crawford credits to appellant of less than 50% of his mortgage payments during the separation. Appellant enjoyed sole use of the marital home during that time period.
In Broseus, 82 Md.App. at 193, 570 A.2d 874, we upheld a court's decision not to award contribution altogether, where the payor spouse "was receiving the benefit of the use of the residence and since [the non-payor spouse's] standard of living was considerably lower than his." The Court emphasized that the payor spouse made "no claim that the expenses of the house exceeded the value of use of the premises, and the record indicates no basis on which to make such an argument." Id.
In this case, as in Broseus, there was no evidence of the value of the use of the marital home. However, there was evidence of the rental value of appellee's apartment. The chancellor did not abuse his discretion in reducing the amount of contribution by the amount appellee had to expend in rent. The chancellor's order effectively required the parties to split, 50/50, both the rent and mortgage payments.
But, the chancellor did not explain his failure to include in the calculation of the contribution award the amount appellant paid on the home equity loan during the separation. As the Court stated in Crawford, 293 Md. at 309, 443 A.2d 599, the general rule regarding contribution is that "one co-tenant who pays the mortgage, taxes, and other carrying charges of jointly owned property is entitled to contribution from the other." Indeed, "contribution may be demanded for any expenditures that were reasonable and necessary for the preservation and protection of the property against loss." Kline, 85 Md.App. at 48, 581 A.2d 1300 (1990).
Appellant's payments on the home equity loan were plainly within the ambit of expenditures that are subject to contribution. Although the chancellor has broad discretion to deny an award of contribution, he should make his decision on the basis of all of the expenses eligible for contribution. In this case, because of the absence of any explanation, we cannot discern whether the court's omission of the home equity loan from the calculations was an intentional choice based on the equities of the case, or merely an oversight. Therefore, on remand, the circuit court should reevaluate its contribution award,
C. Attorney's Fees
Appellant also argues that the chancellor erred in his award of $2,500 in attorney's fees to appellee. The chancellor's award was based on the following analysis: "[Appellee] took a loan against one of her retirement accounts and borrowed money from her daughter in order to pay her attorney." Appellant contends:
Because we have vacated the monetary award, the award of attorney's fees must necessarily be vacated and reconsidered on remand as well. See, e.g., Simonds v. Simonds, 165 Md.App. 591, 608, 886 A.2d 158 (2005). Nevertheless, we shall discuss this issue for the benefit of the chancellor and the parties on remand.
F.L. § 8-214 provides for an award of "reasonable and necessary expenses," including suit money, counsel fees, and costs, in proceedings for disposition of marital property. We quote the provision:
In Doser v. Doser, 106 Md.App. 329, 664 A.2d 453 (1995), we explained that "`justification,' for the purposes of [the family law fee-shifting statutes] is not equivalent to `success;' even if [a party] did not receive the [relief] she requested, her loss would not preclude an award of counsel
In Collins v. Collins, 144 Md.App. 395, 798 A.2d 1155 (2002), we reviewed the award of attorneys' fees, noting that such an award rests "`solely in the discretion of the trial judge.'" Id. at 447, 798 A.2d 1155 (citation omitted). There, the trial court made reference to the conduct of the parties, whether the parties' positions were justified, and their ability to pay. See id. at 445-46, 448, 798 A.2d 1155. We vacated the award, however, and remanded for further proceedings as to whether the fees were reasonable, stating: "[S]ome express discussion regarding the reasonableness of the fees in light of such factors as labor, skill, time, and benefit received is necessary." Id. at 449, 798 A.2d 1155.
In this case, as in Collins, there was no discussion of the reasonableness of the attorney's fees charged. Moreover, the court made no express findings as to which, if any, of the legal actions of appellant were not substantially justified, and what proportion of the attorney's fees were attributable to those unjustified positions. Most important, the court made no findings at all as to appellant's financial ability to pay the attorney's fees, or appellee's financial resources. We also agree with appellant that, in evaluating the parties' financial positions, the court must take into account any monetary award.
FootNotes
In any event, Md.Code (2006 Repl. Vol., 2007 Supp.), § 8-201(e)(2) of the Family Law Article provides that "`[m]arital property' includes any interest in real property held by the parties as tenants by the entirety," as was the parties' home in this case, "unless the real property is excluded by valid agreement." Nevertheless, § 8-205(b)(9) permits the court to consider as a factor in the equitable distribution of marital property a party's contribution of non-marital funds to real property titled as tenants by the entirety. See generally Gordon v. Gordon, 174 Md.App. 583, 622-34, 923 A.2d 149 (2007); John F. Fader II & Richard J. Gilbert, MARYLAND FAMILY LAW § 15-9(a), at 15-39 to -44 (4th ed. 2006, 2007 Supp.) (discussing statutory and case law development). In its discussion of § 8-205(b)(9), the court "concluded that there was not enough evidence to show that nonmarital assets were used to acquire the home."
Wilson v. John Crane, Inc., 385 Md. 185, 198, 867 A.2d 1077 (2005) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312-13, 701 A.2d 110 (1997) (internal citations omitted)).
But, the Kline Court went on to make clear that this limitation does not apply in the context of marital property distribution: "Under the Act ... if there is marital property to support a monetary award, the chancellor has the ability to consider all factors that give rise to principles of equity." Id.
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